Termination Following a Change of Control. If there is a Change of Control, as defined in Section 6(f)(i) below, during the Term, the provisions of this Section 6(f) shall apply and shall continue to apply throughout the remainder of the term of this Agreement. If, within eighteen (18) months following a Change of Control, the Executive's employment is terminated by the Employer or the Executive following the occurrence of any of the events listed in Section 6(f)(ii) below or if the Executive's employment is terminated without cause (in accordance with Section 6(c) above), in lieu of any payments under Section 6(d) above, the Employer shall pay to the Executive (or the Executive's estate, if applicable) a lump sum amount equal to 2.99 times the Executive's "base amount" within the meaning of Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code"). (i) Change of Control shall mean the occurrence of one or more of the following events: (A) any "person" (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes a "beneficial owner" (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) (other than the Employer, any trustee or other fiduciary holding securities under an employee benefit plan of the Employer, or any corporation owned, directly or indirectly, by the stockholders of the Employer, in substantially the same proportions as their ownership of stock of ▇▇▇▇▇▇▇▇), directly or indirectly, of securities of ▇▇▇▇▇▇▇▇, representing fifty percent (50%) or more of the combined voting power of ▇▇▇▇▇▇▇▇'▇ then outstanding securities; or (B) persons who, as of the Effective Date, constituted ▇▇▇▇▇▇▇▇'▇ Board of Directors (the "Incumbent Board") cease for any reason including, without limitation, as a result of a tender offer, proxy contest, merger or similar transaction, to constitute at least a majority of ▇▇▇▇▇▇▇▇'▇ Board of Directors, provided that any person becoming a director of ▇▇▇▇▇▇▇▇ subsequent to the Effective Date whose election was approved by at least a majority of the directors then comprising the Incumbent Board shall, for purposes of this Section 6(f), be considered a member of the Incumbent Board; or (C) the stockholders of ▇▇▇▇▇▇▇▇ approve a merger or consolidation of ▇▇▇▇▇▇▇▇ with any other corporation or other entity, other than (1) a merger or consolidation which would result in the voting securities of ▇▇▇▇▇▇▇▇ outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of the combined voting power of the voting securities of ▇▇▇▇▇▇▇▇ or such surviving entity outstanding immediately after such merger or consolidation or (2) a merger or consolidation effected to implement a recapitalization of ▇▇▇▇▇▇▇▇ (or similar transaction) in which no "person" (as hereinabove defined) acquires more than fifty percent (50%) of the combined voting power of ▇▇▇▇▇▇▇▇'▇ then outstanding securities; or (D) the stockholders of ▇▇▇▇▇▇▇▇ approve a plan of complete liquidation of ▇▇▇▇▇▇▇▇ or an agreement for the sale or disposition by ▇▇▇▇▇▇▇▇ of all or substantially all of ▇▇▇▇▇▇▇▇'▇ assets. (ii) The events referred to in Section 6(f) above shall be as follows: (A) a reduction of the Executive's salary other than a reduction that (1) is based on the Employer's financial performance or (2) is similar to the reduction made to the salaries provided to all or most other senior executives of the Employer; or (B) a significant change in the Executive's responsibilities and/or duties which constitutes, when compared to the Executive's responsibilities and/or duties before the Change of Control, a demotion; or (C) a material loss of title or office; or (D) the relocation of the offices at which the Executive is principally employed as of the Change of Control to a location more than fifty (50) miles from such offices, which relocation is not approved by the Executive. (iii) The Executive shall provide the Employer with reasonable notice and an opportunity to cure any of the events listed in Section 6(f)(ii) and shall not be entitled to compensation pursuant to this Section 6(f) unless the Employer fails to cure within a reasonable period; and (iv) It is the intention of the Executive and of the Employer that no payments by the Employer to or for the benefit of the Executive under this Agreement or any other agreement or plan, if any, pursuant to which the Executive is entitled to receive payments or benefits shall be nondeductible to the Employer by reason of the operation of Section 280G of the Code relating to parachute payments or any like statutory or regulatory provision. Accordingly, and notwithstanding any other provision of this Agreement or any such agreement or plan, if by reason of the operation of said Section 280G or any like statutory or regulatory provision, any such payments exceed the amount which can be deducted by the Employer, such payments shall be reduced to the maximum amount which can be deducted by the Employer. To the extent that payments exceeding such maximum deductible amount have been made to or for the benefit of the Executive, such excess payments shall be refunded to the Employer with interest thereon at the applicable Federal rate determined under Section 1274(d) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be nondeductible to the Employer by reason of the operation of said Section 280G or any like statutory or regulatory provision. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G or any like statutory or regulatory provision, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five (45) days after the Employer has given notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion.
Appears in 4 contracts
Sources: Employment Agreement (Northway Financial Inc), Merger Agreement (Pemi Bancorp Inc), Employment Agreement (Northway Financial Inc)
Termination Following a Change of Control. If there is (1) In the event that a "Change in Control," as hereinafter defined, of Control, as defined in Section 6(f)(i) below, the Company shall occur at any time during the TermTerm or any renewal thereof, the provisions Employee shall have the right to terminate his employment under this Agreement upon thirty (30) days written notice given at any time within one (1) year after the occurrence of such event, and such termination of the Employee's employment with the Company pursuant to this Section 6(f6(c)(1), then, in any such event, such termination shall be deemed to be a termination by the Company Without Cause.
(2) shall apply and shall continue to apply throughout the remainder of the term For purposes of this Agreement. If, within eighteen (18) months following a "Change of in Control, the Executive's employment is terminated by the Employer or the Executive following the occurrence of any " of the events listed Company shall mean a change in control (i) as set forth in Section 6(f)(ii) below or if the Executive's employment is terminated without cause (in accordance with Section 6(c) above), in lieu of any payments under Section 6(d) above, the Employer shall pay to the Executive (or the Executive's estate, if applicable) a lump sum amount equal to 2.99 times the Executive's "base amount" within the meaning of Section 280G(b)(3) 280G of the Internal Revenue Code or (ii) of 1986a nature that would be required to be reported in response to Item 1 of the current report on Form 8K, as amended in effect on the date hereof, pursuant to Section 13 or 15(d) of the Securities Exchange Act of ▇▇▇▇ (the ▇▇▇ "Code▇▇▇▇▇▇▇▇ ▇▇▇").
(i) Change of Control ; provided that, without limitation, such a change in control shall mean the occurrence of one or more of the following eventsbe deemed to have occurred at such time as:
(Aa) any "person," other than the Employee (as such term is used in Sections Section 13(d) and 14(d)(214(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) is or becomes a the "beneficial owner" (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) (other than the Employer, any trustee or other fiduciary holding securities under an employee benefit plan of the Employer, or any corporation owned, directly or indirectly, by the stockholders of the Employer, in substantially the same proportions as their ownership of stock of ▇▇▇▇▇▇▇▇), directly or indirectly, of securities of ▇▇▇▇▇▇▇▇, the Company representing fifty percent (50%) or more of the combined voting power of ▇▇▇▇▇▇▇▇'▇ the Company's outstanding securities then outstanding securitieshaving the right to vote at elections of directors; or,
(b) the individuals who, at the commencement date of the Agreement constitute the Board of Directors, cease for any reason to constitute a majority thereof unless the election, or nomination for election, of each new director was approved by a vote of at least two thirds of the directors then in office who were directors at the commencement of the Agreement; or
(Bc) persons who, there is a failure to elect a number of directors as of the Effective Date, constituted ▇▇▇▇▇▇▇▇'▇ Board of Directors (the "Incumbent Board") cease for any reason including, without limitation, as a result of a tender offer, proxy contest, merger or similar transaction, to would constitute at least a majority of ▇▇▇▇▇▇▇▇'▇ Board of Directors, provided that any person becoming a director of ▇▇▇▇▇▇▇▇ subsequent to the Effective Date whose election was approved by at least a majority of the directors then comprising Board of Directors' candidates nominated by management of the Incumbent Company to the Board shallof Directors; or
(d) the business of the Company for which the Employee's services are principally performed is disposed of by the Company pursuant to a partial or complete liquidation of the Company, a sale of assets (including stock of a subsidiary of the Company) or otherwise. Anything herein to the contrary notwithstanding, this Section 6(c)(2) will not apply where the Employee gives the Employee's explicit written waiver stating that for the purposes of this Section 6(f6(c)(2), a Change in Control shall not be considered a member of the Incumbent Board; or
(C) the stockholders of ▇▇▇▇▇▇▇▇ approve a merger or consolidation of ▇▇▇▇▇▇▇▇ with deemed to have occurred. The Employee's participation in any other corporation negotiations or other entity, other than (1) matters in relation to a merger or consolidation Change in Control shall in no way constitute such a waiver which would result can only be given by an express written waiver as provided in the voting securities of ▇▇▇▇▇▇▇▇ outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of the combined voting power of the voting securities of ▇▇▇▇▇▇▇▇ or such surviving entity outstanding immediately after such merger or consolidation or (2) a merger or consolidation effected to implement a recapitalization of ▇▇▇▇▇▇▇▇ (or similar transaction) in which no "person" (as hereinabove defined) acquires more than fifty percent (50%) of the combined voting power of ▇▇▇▇▇▇▇▇'▇ then outstanding securities; or
(D) the stockholders of ▇▇▇▇▇▇▇▇ approve a plan of complete liquidation of ▇▇▇▇▇▇▇▇ or an agreement for the sale or disposition by ▇▇▇▇▇▇▇▇ of all or substantially all of ▇▇▇▇▇▇▇▇'▇ assetspreceding sentence.
(ii3) The events referred Anything in this Section 6(c) to the contrary notwithstanding, in Section 6(f) above shall be as follows:
(A) a reduction no event will any action or non-action by the Employee at any time prior to the first anniversary date of the Executive's salary other than a reduction that (1) is based on the Employer's financial performance or (2) is similar applicable Change in Control be deemed consent to the reduction made to the salaries provided to all or most other senior executives of the Employer; or
(B) a significant change in the Executive's responsibilities and/or duties which constitutes, when compared to the Executive's responsibilities and/or duties before the Change of Control, a demotion; or
(C) a material loss of title or office; or
(D) the relocation of the offices at which the Executive is principally employed as of the Change of Control to a location more than fifty (50) miles from such offices, which relocation is not approved by the Executive.
(iii) The Executive shall provide the Employer with reasonable notice and an opportunity to cure any of the events listed described in Section 6(f)(ii) and shall not be entitled to compensation pursuant to this Section 6(f) unless the Employer fails to cure within a reasonable period; and
(iv) It is the intention of the Executive and of the Employer that no payments by the Employer to or for the benefit of the Executive under this Agreement or any other agreement or plan, if any, pursuant to which the Executive is entitled to receive payments or benefits shall be nondeductible to the Employer by reason of the operation of Section 280G of the Code relating to parachute payments or any like statutory or regulatory provision. Accordingly, and notwithstanding any other provision of this Agreement or any such agreement or plan, if by reason of the operation of said Section 280G or any like statutory or regulatory provision, any such payments exceed the amount which can be deducted by the Employer, such payments shall be reduced to the maximum amount which can be deducted by the Employer. To the extent that payments exceeding such maximum deductible amount have been made to or for the benefit of the Executive, such excess payments shall be refunded to the Employer with interest thereon at the applicable Federal rate determined under Section 1274(d) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be nondeductible to the Employer by reason of the operation of said Section 280G or any like statutory or regulatory provision. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G or any like statutory or regulatory provision, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five (45) days after the Employer has given notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion6(c).
Appears in 3 contracts
Sources: Employment Agreement (Hospital Staffing Services Inc), Employment Agreement (Hospital Staffing Services Inc), Employment Agreement (Hospital Staffing Services Inc)
Termination Following a Change of Control. If there is a Change of Control, as defined in Section 6(f)(i) below, during the Term, the provisions of this Section 6(f) shall apply and shall continue to apply throughout the remainder of the term of this Agreement. If, within eighteen (18) months following a Change of Control, the Executive's employment is terminated by the Employer or the Executive following the occurrence of any of the events listed in Section 6(f)(ii) below or if the Executive's employment is terminated without cause (in accordance with Section 6(c) above), in lieu of any payments under Section 6(d) above, the Employer shall pay to the Executive (or the Executive's estate, if applicable) a lump sum amount equal to 2.99 times the Executive's "base amount" within the meaning of Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code").
(i) Change of Control shall mean the occurrence of one or more of the following events:
(A) any "person" (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes a "beneficial owner" (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) (other than the Employer, any trustee or other fiduciary holding securities under an employee benefit plan of the Employer, or any corporation owned, directly or indirectly, by the stockholders of the Employer, in substantially the same proportions as their ownership of stock of ▇▇▇▇▇▇▇▇Northway), directly or indirectly, of securities of ▇N▇▇▇▇▇▇▇, representing fifty percent (50%) or more of the combined ▇▇▇ ▇▇▇bined voting power of ▇▇▇▇▇▇▇▇'▇ Northway's then outstanding securities; or
(B) persons who, as of the Effective Date, constituted ▇▇▇▇▇▇▇▇'▇ Northway's Board of Directors (the "Incumbent Board") cease for any reason including, without limitation, as a result of a tender offer, proxy contest, merger or similar transaction, to constitute at least a majority of Northway's Board of Directors, provided that any pers▇▇ ▇▇▇▇▇▇▇▇'▇ Board of Directors, provided that any person becoming g a director of ▇▇▇▇▇▇▇▇ Northway subsequent to the Effective Date whose election was elect▇▇▇ ▇▇▇ approved by at least a majority of the directors then comprising the Incumbent Board shall, for purposes of this Section 6(f), be considered a member of the Incumbent Board; or
(C) the stockholders of ▇▇▇▇▇▇▇▇ Northway approve a merger or consolidation of ▇▇▇▇Northwa▇ ▇▇▇▇ with any ▇ny other corporation or other entity, other than ▇▇▇▇▇ ▇▇an (1) a merger or consolidation which would result in the voting securities of ▇▇▇▇Northway outstanding immediately prior thereto contin▇▇▇▇ outstanding immediately prior thereto continuing to ▇▇ represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of the combined voting power of the voting securities of ▇▇▇▇▇▇▇▇ Northway or such surviving entity outstanding immediately after such merger or consolidation or (2) a merger or consolidation effected to implement a recapitalization of ▇▇▇▇▇▇▇▇ Northway (or similar transaction) in which no "person" (as hereinabove ▇▇ ▇▇reinabove defined) acquires more than fifty percent (50%) of the combined voting power of ▇▇▇▇▇▇▇▇'▇ Northway's then outstanding securities; or
(D) the stockholders of t▇▇ ▇▇▇▇▇▇▇▇ lders of Northway approve a plan of complete liquidation of ▇▇No▇▇▇▇▇▇ or ▇r an agreement for the sale or disposition by ▇▇ ▇▇▇▇▇▇▇▇ way of all or substantially all of Northway's as▇▇▇▇▇▇▇▇'▇ assets.
(ii) The events referred to in Section 6(fSe▇▇▇▇▇ ▇(▇) above shall be as follows:
(A) a reduction of the Executive's salary other than a reduction that (1) is based on the Employer's financial performance or (2) is similar to the reduction made to the salaries provided to all or most other senior executives of the Employer; or
(B) a significant change in the Executive's responsibilities and/or duties which constitutes, when compared to the Executive's responsibilities and/or duties before the Change of Control, a demotion; or
(C) a material loss of title or office; or
(D) the relocation of the offices at which the Executive is principally employed as of the Change of Control to a location more than fifty (50) miles from such offices, which relocation is not approved by the Executive.
(iii) The Executive shall provide the Employer with reasonable notice and an opportunity to cure any of the events listed in Section 6(f)(ii) and shall not be entitled to compensation pursuant to this Section 6(f) unless the Employer fails to cure within a reasonable period; and
(iv) It is the intention of the Executive and of the Employer that no payments by the Employer to or for the benefit of the Executive under this Agreement or any other agreement or plan, if any, pursuant to which the Executive is entitled to receive payments or benefits shall be nondeductible to the Employer by reason of the operation of Section 280G of the Code relating to parachute payments or any like statutory or regulatory provision. Accordingly, and notwithstanding any other provision of this Agreement or any such agreement or plan, if by reason of the operation of said Section 280G or any like statutory or regulatory provision, any such payments exceed the amount which can be deducted by the Employer, such payments shall be reduced to the maximum amount which can be deducted by the Employer. To the extent that payments exceeding such maximum deductible amount have been made to or for the benefit of the Executive, such excess payments shall be refunded to the Employer with interest thereon at the applicable Federal rate determined under Section 1274(d) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be nondeductible to the Employer by reason of the operation of said Section 280G or any like statutory or regulatory provision. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G or any like statutory or regulatory provision, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five (45) days after the Employer has given notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion.
Appears in 2 contracts
Sources: Employment Agreement (Northway Financial Inc), Employment Agreement (Northway Financial Inc)
Termination Following a Change of Control. If there is i. In the event that a “Change in Control” or an “Attempted Change in Control” as hereinafter defined, of Control, as defined in Section 6(f)(i) below, the Company shall occur at any time during the TermTerm hereof, the provisions Executive shall have the right to terminate the Executive’s employment under this Agreement upon thirty (30) days written notice given at any time within one year after the occurrence of such event, and such termination of the Executive’s employment with the Company pursuant to this Section 6(f6(g)(i), and, in any such event, such termination shall be deemed to be a Termination by the Company Other than for Cause and the Executive shall be entitled to such Compensation and Benefits as set forth in Subsection 6(h) shall apply and shall continue to apply throughout the remainder of the term of this Agreement.
ii. IfFor purposes of this Agreement, within eighteen (18) months following a “Change in Control” of Controlthe Company shall be deemed to have occurred at such time as:
A. any “person”, other than the Executive's employment is terminated by the Employer or the Executive following the occurrence of any of the events listed in Section 6(f)(ii) below or if the Executive's employment is terminated without cause (in accordance with Section 6(c) above), in lieu of any payments under Section 6(d) above, the Employer shall pay to the Executive (or the Executive's estate, if applicable) a lump sum amount equal to 2.99 times the Executive's "base amount" within the meaning of Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code").
(i) Change of Control shall mean the occurrence of one or more of the following events:
(A) any "person" (as such term is used in Sections Section 13(d) and 14(d)(214(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) is or becomes a "the “beneficial owner" ” (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) (other than the Employer, any trustee or other fiduciary holding securities under an employee benefit plan of the Employer, or any corporation owned, directly or indirectly, by the stockholders of the Employer, in substantially the same proportions as their ownership of stock of ▇▇▇▇▇▇▇▇), directly or indirectly, of securities of ▇▇▇▇▇▇▇▇, the Company representing fifty percent (50%) percent or more of the combined voting power of ▇▇▇▇▇▇▇▇'▇ the Company’s outstanding securities then outstanding securitieshaving the right to vote at elections of directors; or,
(B) persons who, as B. the individuals who at the commencement date of the Effective Date, constituted ▇▇▇▇▇▇▇▇'▇ Agreement constitute the Board of Directors (the "Incumbent Board") cease for any reason including, without limitation, as a result of a tender offer, proxy contest, merger or similar transaction, to constitute at least a majority thereof unless the election, or nomination for election, of ▇▇▇▇▇▇▇▇'▇ Board of Directors, provided that any person becoming a each new director of ▇▇▇▇▇▇▇▇ subsequent to the Effective Date whose election was approved by a vote of at least two thirds of the directors then in office who were directors at the commencement of the Agreement; or
C. there is a failure to elect two or more (or such number of directors as would constitute a majority of the directors then comprising Board) candidates nominated by management of the Incumbent Board shallCompany to the Board; or
D. the business of the Company for which the Executive’s services are principally performed is disposed of by the Company pursuant to a partial or complete liquidation of the Company, a sale of assets (including stock of a subsidiary of the Company) or otherwise. Anything herein to the contrary notwithstanding, this Section 6(g)(ii) will not apply where the Executive gives the Executive’s explicit written waiver stating that for the purposes of this Section 6(f), be considered a member of the Incumbent Board; or
(C) the stockholders of ▇▇▇▇▇▇▇▇ approve a merger or consolidation of ▇▇▇▇▇▇▇▇ with any other corporation or other entity, other than (16(g)(ii) a merger or consolidation which would result Change in the voting securities of ▇▇▇▇▇▇▇▇ outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of the combined voting power of the voting securities of ▇▇▇▇▇▇▇▇ or such surviving entity outstanding immediately after such merger or consolidation or (2) a merger or consolidation effected to implement a recapitalization of ▇▇▇▇▇▇▇▇ (or similar transaction) in which no "person" (as hereinabove defined) acquires more than fifty percent (50%) of the combined voting power of ▇▇▇▇▇▇▇▇'▇ then outstanding securities; or
(D) the stockholders of ▇▇▇▇▇▇▇▇ approve a plan of complete liquidation of ▇▇▇▇▇▇▇▇ or an agreement for the sale or disposition by ▇▇▇▇▇▇▇▇ of all or substantially all of ▇▇▇▇▇▇▇▇'▇ assets.
(ii) The events referred to in Section 6(f) above shall be as follows:
(A) a reduction of the Executive's salary other than a reduction that (1) is based on the Employer's financial performance or (2) is similar to the reduction made to the salaries provided to all or most other senior executives of the Employer; or
(B) a significant change in the Executive's responsibilities and/or duties which constitutes, when compared to the Executive's responsibilities and/or duties before the Change of Control, a demotion; or
(C) a material loss of title or office; or
(D) the relocation of the offices at which the Executive is principally employed as of the Change of Control to a location more than fifty (50) miles from such offices, which relocation is not approved by the Executive.
(iii) The Executive shall provide the Employer with reasonable notice and an opportunity to cure any of the events listed in Section 6(f)(ii) and shall not be entitled deemed to compensation pursuant have occurred. The Executive’s participation in any negotiations or other matters in relation to this Section 6(f) unless the Employer fails to cure within a reasonable period; and
(iv) It is the intention of the Executive and of the Employer that Change in Control shall in no payments by the Employer to or for the benefit of the Executive under this Agreement or any other agreement or plan, if any, pursuant to which the Executive is entitled to receive payments or benefits shall be nondeductible to the Employer by reason of the operation of Section 280G of the Code relating to parachute payments or any like statutory or regulatory provision. Accordingly, and notwithstanding any other provision of this Agreement or any way constitute such agreement or plan, if by reason of the operation of said Section 280G or any like statutory or regulatory provision, any such payments exceed the amount a waiver which can only be deducted given by an explicit written waiver as provided in the Employer, such payments shall be reduced to the maximum amount which can be deducted by the Employer. To the extent that payments exceeding such maximum deductible amount have been made to or for the benefit of the Executive, such excess payments shall be refunded to the Employer with interest thereon at the applicable Federal rate determined under Section 1274(d) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be nondeductible to the Employer by reason of the operation of said Section 280G or any like statutory or regulatory provision. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G or any like statutory or regulatory provision, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five (45) days after the Employer has given notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretionpreceding sentence.
Appears in 2 contracts
Sources: Executive Employment Agreement (SRM Entertainment, Inc.), Executive Employment Agreement (SRM Entertainment, Inc.)
Termination Following a Change of Control. If (i) Subject to the provisions of Section 8(c), if, during the Employment Period there is a Change of Control, Control (as defined in Section 6(f)(ibelow) below, during and provided the Term, Executive remains employed for six months following the provisions of this Section 6(f) shall apply and shall continue to apply throughout the remainder closing of the term of this Agreement. If, within eighteen (18) months following a Change of ControlControl event, the Executive's employment or if Executive is terminated by the Employer Company or its successor during such six month period for other than Cause, or if Executive terminates for Good Reason during such six month period, Executive shall, in addition to the Executive following the occurrence of any of the events listed amounts provided in Section 6(f)(ii) below or if the Executive's employment is terminated without cause (in accordance with Section 6(c) above8(a), in lieu of any payments under Section 6(d) above, the Employer shall pay be entitled to the Executive (or the Executive's estate, if applicable) receive a lump sum cash amount equal to 2.99 times the Executive's "one years base amount" salary paid as a lump sum. The Severance Payment shall be paid within the meaning of Section 280G(b)(3) 14 days of the Internal Revenue Code Date of 1986, as amended (the "Code")Termination.
(iii) For purposes of this Agreement, a “Change of Control Control” shall mean the occurrence of one or more of the following eventsbe deemed to have occurred if:
(A) any "person" person (as such term is used in Sections 13(d) and 14(d)(2within the meaning of Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”)) becomes a "beneficial owner" ), other than CVC, OTPP, or any of their Affiliates or Qualified Transferees (as such term is terms are defined in the Stockholders Agreement), including any group (within the meaning of Rule 13d-3 promulgated 13d-5(b) under the Exchange Act) )), acquires “beneficial ownership” (other than within the Employer, any trustee or other fiduciary holding securities meaning of Rule 13d-3 under an employee benefit plan of the Employer, or any corporation owned, directly or indirectly, by the stockholders of the Employer, in substantially the same proportions as their ownership of stock of ▇▇▇▇▇▇▇▇Exchange Act), directly or indirectly, of securities of ▇▇▇▇▇▇▇▇, Holding representing fifty percent (more than 50%) or more % of the combined voting power Voting Power (as defined below) of ▇▇▇▇▇▇▇▇'▇ then outstanding Holding’s securities; or;
(B) persons who, as at any time after an initial public offering of the Effective Datecommon stock of Holding, constituted ▇▇▇▇▇▇▇▇'▇ Board of Directors (the "Incumbent Board") cease for any reason including, without limitation, as a result of a tender offer, proxy contest, merger or similar transaction, to constitute at least a majority of ▇▇▇▇▇▇▇▇'▇ Board of Directors, provided that any person becoming a director of ▇▇▇▇▇▇▇▇ subsequent to the Effective Date whose election was approved by at least a majority of the members of the Board or of the board of directors then comprising of any successor to Holding are not “Continuing Directors” where “Continuing Director” means, as of any date of determination, any member of the Incumbent Board shall, for purposes or of this Section 6(f), be considered the board of such successor who (x) was a member of the Incumbent BoardBoard or such successor board 24 months prior to the date of determination; or
(Cy) was nominated for election or elected to the stockholders Board or such successor board with the approval of ▇▇▇▇▇▇▇▇ approve a merger or consolidation of ▇▇▇▇▇▇▇▇ with any other corporation or other entity, other than (1) a merger or consolidation which would result in the voting securities of ▇▇▇▇▇▇▇▇ outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities majority of the surviving entityContinuing Directors in office at the time of such nomination or election; or (z) more than fifty percent (50%) of was designated to serve on the combined voting power of the voting securities of ▇▇▇▇▇▇▇▇ Board or such surviving entity outstanding immediately after such merger successor board by CVC or consolidation or (2) a merger or consolidation effected to implement a recapitalization of ▇▇▇▇▇▇▇▇ (or similar transaction) in which no "person" (as hereinabove defined) acquires more than fifty percent (50%) of the combined voting power of ▇▇▇▇▇▇▇▇'▇ then outstanding securities; or
(D) the stockholders of ▇▇▇▇▇▇▇▇ approve a plan of complete liquidation of ▇▇▇▇▇▇▇▇ or an agreement for the sale or disposition by ▇▇▇▇▇▇▇▇ of all or substantially all of ▇▇▇▇▇▇▇▇'▇ assets.
(ii) The events referred to in Section 6(f) above shall be as follows:
(A) a reduction of the Executive's salary other than a reduction that (1) is based on the Employer's financial performance or (2) is similar OTPP pursuant to the reduction made to the salaries provided to all or most other senior executives of the Employer; or
(B) a significant change in the Executive's responsibilities and/or duties which constitutes, when compared to the Executive's responsibilities and/or duties before the Change of Control, a demotion; or
(C) a material loss of title or office; or
(D) the relocation of the offices at which the Executive is principally employed as of the Change of Control to a location more than fifty (50) miles from such offices, which relocation is not approved by the Executive.
(iii) The Executive shall provide the Employer with reasonable notice and an opportunity to cure any of the events listed in Section 6(f)(ii) and shall not be entitled to compensation pursuant to this Section 6(f) unless the Employer fails to cure within a reasonable period; and
(iv) It is the intention of the Executive and of the Employer that no payments by the Employer to or for the benefit of the Executive under this Agreement or any other agreement or plan, if any, pursuant to which the Executive is entitled to receive payments or benefits shall be nondeductible to the Employer by reason of the operation of Section 280G of the Code relating to parachute payments or any like statutory or regulatory provision. Accordingly, and notwithstanding any other provision of this Agreement or any such agreement or plan, if by reason of the operation of said Section 280G or any like statutory or regulatory provision, any such payments exceed the amount which can be deducted by the Employer, such payments shall be reduced to the maximum amount which can be deducted by the Employer. To the extent that payments exceeding such maximum deductible amount have been made to or for the benefit of the Executive, such excess payments shall be refunded to the Employer with interest thereon at the applicable Federal rate determined under Section 1274(d) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be nondeductible to the Employer by reason of the operation of said Section 280G or any like statutory or regulatory provision. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G or any like statutory or regulatory provision, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five (45) days after the Employer has given notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion.Stockholder’s Agreement;
Appears in 1 contract
Sources: Employment Agreement (Worldspan L P)
Termination Following a Change of Control. If there is (1) In the event that a “Change in Control” of Control, as defined in Section 6(f)(i) below, the Company shall occur at any time during the TermTerm hereof, the provisions Executive shall have the right to terminate the Executive’s employment under this Agreement by giving the Company written notice of termination within thirty (30) days of said Change in Control. In the event of such a termination, the Executive shall receive Base Salary and any earned Bonus (no fringe benefits), for the twelve (12) month period following the date of termination. All awarded options will vest immediately upon the termination of the Executive pursuant to this Section 6(f).
(2) shall apply and shall continue to apply throughout the remainder of the term For purposes of this Agreement. If, within eighteen (18) months following a “Change of in Control, the Executive's employment is terminated by the Employer or the Executive following the occurrence of any ” of the events listed Company shall mean a change in control (A) as set forth in Section 6(f)(ii) below or if the Executive's employment is terminated without cause (in accordance with Section 6(c) above), in lieu of any payments under Section 6(d) above, the Employer shall pay to the Executive (or the Executive's estate, if applicable) a lump sum amount equal to 2.99 times the Executive's "base amount" within the meaning of Section 280G(b)(3) 280G of the Internal Revenue Code or (B) of 1986a nature that would be required to be reported in response to Item 5.01 of the current report on Form 8K, as amended in effect on the Effective Date, pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (the "Code"“Exchange Act”).
(i) Change of Control ; provided that, without limitation, such a change in control shall mean the occurrence of one or more of the following eventsbe deemed to have occurred at such time as:
(A) any "“person" ”, other than the Executive, (as such term is used in Sections Section 13(d) and 14(d)(214(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) is or becomes a "the “beneficial owner" ” (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) (other than the Employer, any trustee or other fiduciary holding securities under an employee benefit plan of the Employer, or any corporation owned, directly or indirectly, by the stockholders of the Employer, in substantially the same proportions as their ownership of stock of ▇▇▇▇▇▇▇▇), directly or indirectly, of securities of ▇▇▇▇▇▇▇▇, the Company representing fifty percent (50%) or more of the combined voting power of ▇▇▇▇▇▇▇▇'▇ the Company’s outstanding securities then outstanding securitieshaving the right to vote at elections of directors; or,
(B) persons who, There is a failure to elect four (or such number of directors as of the Effective Date, constituted ▇▇▇▇▇▇▇▇'▇ Board of Directors (the "Incumbent Board") cease for any reason including, without limitation, as a result of a tender offer, proxy contest, merger or similar transaction, to would constitute at least a majority of ▇▇▇▇▇▇▇▇'▇ Board of Directors, provided that any person becoming a director of ▇▇▇▇▇▇▇▇ subsequent to the Effective Date whose election was approved by at least a majority of the directors then comprising the Incumbent Board shall, for purposes of this Section 6(f), be considered a member Directors) or more candidates nominated by management of the Incumbent BoardCompany to the Board of Directors; or
(C) the stockholders of ▇▇▇▇▇▇▇▇ approve a merger or consolidation of ▇▇▇▇▇▇▇▇ with any other corporation or other entity, other than (1) a merger or consolidation which would result in individuals who at the voting securities of ▇▇▇▇▇▇▇▇ outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities Effective Date of the surviving entity) more than fifty percent (50%) Agreement constitute the Board of Directors cease for any reason to constitute a majority thereof unless the election, or nomination for election, of each new director was approved by a vote of at least two thirds of the combined voting power of directors then in office who were directors at the voting securities of ▇▇▇▇▇▇▇▇ or such surviving entity outstanding immediately after such merger or consolidation or (2) a merger or consolidation effected to implement a recapitalization of ▇▇▇▇▇▇▇▇ (or similar transaction) in which no "person" (as hereinabove defined) acquires more than fifty percent (50%) of the combined voting power of ▇▇▇▇▇▇▇▇'▇ then outstanding securitiesEffective Date; or
(D) the stockholders of ▇▇▇▇▇▇▇▇ approve Company adopts a plan of partial or complete liquidation of ▇▇▇▇▇▇▇▇ or consummates an agreement for the sale or disposition by ▇▇▇▇▇▇▇▇ of all or substantially all of ▇▇▇▇▇▇▇▇'▇ assets.
the assets (ii) The events referred to in Section 6(f) above shall be as follows:
(A) including stock of a reduction subsidiary of the Executive's salary other than a reduction that (1Company) is based on the Employer's financial performance or (2) is similar otherwise. Anything herein to the reduction made to the salaries provided to all or most other senior executives of the Employer; or
(B) a significant change in the Executive's responsibilities and/or duties which constitutescontrary notwithstanding, when compared to the Executive's responsibilities and/or duties before the Change of Control, a demotion; or
(C) a material loss of title or office; or
(D) the relocation of the offices at which the Executive is principally employed as of the Change of Control to a location more than fifty (50) miles from such offices, which relocation is not approved by the Executive.
(iii) The Executive shall provide the Employer with reasonable notice and an opportunity to cure any of the events listed in Section 6(f)(ii) and shall not be entitled to compensation pursuant to this Section 6(f) unless the Employer fails to cure within a reasonable period; and
(iv) It is the intention of will not apply where the Executive and of gives the Employer that no payments by the Employer to or for the benefit of the Executive under this Agreement or any other agreement or plan, if any, pursuant to which the Executive is entitled to receive payments or benefits shall be nondeductible to the Employer by reason of the operation of Section 280G of the Code relating to parachute payments or any like statutory or regulatory provision. Accordingly, and notwithstanding any other provision of this Agreement or any such agreement or plan, if by reason of the operation of said Section 280G or any like statutory or regulatory provision, any such payments exceed the amount which can be deducted by the Employer, such payments shall be reduced to the maximum amount which can be deducted by the Employer. To the extent that payments exceeding such maximum deductible amount have been made to or for the benefit Executive’s explicit written waiver of the Executive, ’s rights under this Section 6(f) with respect to a specific Change in Control event. The Executive’s participation in any negotiations or other matters in relation to a Change in Control shall in no way constitute such excess payments shall a waiver which can only be refunded to given by an explicit written waiver as provided in the Employer with interest thereon at the applicable Federal rate determined under Section 1274(d) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be nondeductible to the Employer by reason of the operation of said Section 280G or any like statutory or regulatory provision. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G or any like statutory or regulatory provision, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five (45) days after the Employer has given notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretionpreceding sentence.
Appears in 1 contract
Termination Following a Change of Control. If there is a Change of Control, as defined in Section 6(f)(i) below, during the Term, the provisions of this Section 6(f) shall apply and shall continue to apply throughout the remainder of the term of this AgreementTerm. If, within eighteen
(181) months following a Change of Control, the Executive's employment is terminated by the Employer or the Executive following the occurrence of any of the events listed in Section 6(f)(ii) below or if the Executive's employment is terminated without cause (in accordance with Section 6(c) above); and (2) such termination occurs both within twelve (12) months following a Change of Control and during the Term, in lieu of any payments under Section 6(d) above, then the Employer shall pay to provide the Executive (or the Executive's estate, if applicable) a lump sum amount equal to 2.99 times with Termination Benefits for two (2) years from the date of termination of the Executive's "base amount" within employment. To the meaning extent that Termination Benefits would otherwise be due to the Executive, this Section 6(f) shall not be construed to require the provision of Section 280G(b)(3) of any additional pay or benefits to the Internal Revenue Code of 1986, as amended (the "Code")Executive.
(i) Change of Control shall mean the occurrence of one or more of the following events:
(A) any "person" (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes a "beneficial owner" (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) (other than the Employer, any trustee or other fiduciary holding securities under an employee benefit plan of the Employer, or any corporation owned, directly or indirectly, by the stockholders of the Employer, in substantially the same proportions as their ownership of stock of ▇▇▇▇▇▇▇▇the Employer), directly or indirectly, of securities of ▇▇▇▇▇▇▇▇the Employer, representing fifty percent (50%) or more of the combined voting power of ▇▇▇▇▇▇▇▇'▇ the Employer's then outstanding securities; or
(B) persons who, as of the Effective Date, constituted ▇▇▇▇▇▇▇▇'▇ the Employer's Board of Directors (the "Incumbent Board") cease for any reason including, without limitation, as a result of a tender offer, proxy contest, merger or similar transaction, to constitute at least a majority of ▇▇▇▇▇▇▇▇'▇ the Employer's Board of Directors, provided that any person becoming a director of ▇▇▇▇▇▇▇▇ the Employer subsequent to the Effective Date whose election was approved by at least a majority of the directors then comprising the Incumbent Board shall, for purposes of this Section 6(f), be considered a member of the Incumbent Board; or
(C) the stockholders of ▇▇▇▇▇▇▇▇ the Employer approve a merger or consolidation of ▇▇▇▇▇▇▇▇ the Employer with any other corporation or other entity, other than (1) a merger or consolidation which would result in the voting securities of ▇▇▇▇▇▇▇▇ the Employer outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of the combined voting power of the voting securities of ▇▇▇▇▇▇▇▇ the Employer or such surviving entity outstanding immediately after such merger or consolidation or (2) a merger or consolidation effected to implement a recapitalization of ▇▇▇▇▇▇▇▇ the Employer (or similar transaction) in which no "person" (as hereinabove defined) acquires more than fifty percent (50%) of the combined voting power of ▇▇▇▇▇▇▇▇'▇ the Employer's then outstanding securities; or
(D) the stockholders of ▇▇▇▇▇▇▇▇ the Employer approve a plan of complete liquidation of ▇▇▇▇▇▇▇▇ the Employer or an agreement for the sale or disposition by ▇▇▇▇▇▇▇▇ of all or substantially all of ▇▇▇▇▇▇▇▇'▇ the Employer's assets.
(ii) The events referred to in Section 6(f) above shall be as follows:
(A) a reduction of the Executive's salary other than a reduction that (1) is based on the Employer's financial performance or (2) is similar to the reduction made to the salaries provided to all or most other senior executives of the Employer; or
(B) a significant change in the Executive's responsibilities and/or duties which constitutes, when compared to the Executive's responsibilities and/or duties before the Change of Control, a demotion; or
(C) a material loss of title or office; or
(D) the relocation of the offices at which the Executive is principally employed as of the Change of Control to a location more than fifty (50) miles from such offices, which relocation is not approved by the Executive.
(iii) The Executive shall provide the Employer with reasonable notice and an opportunity to cure any of the events listed in Section 6(f)(ii) and shall not be entitled to compensation pursuant to this Section 6(f) unless the Employer fails to cure within a reasonable period; and
(iv) It is the intention of the Executive and of the Employer that no payments by the Employer to or for the benefit of the Executive under this Agreement or any other agreement or plan, if any, pursuant to which the Executive is entitled to receive payments or benefits shall be nondeductible to the Employer by reason of the operation of Section 280G of the Code relating to parachute payments or any like statutory or regulatory provision. Accordingly, and notwithstanding any other provision of this Agreement or any such agreement or plan, if by reason of the operation of said Section 280G or any like statutory or regulatory provision, any such payments exceed the amount which can be deducted by the Employer, such payments shall be reduced to the maximum amount which can be deducted by the Employer. To the extent that payments exceeding such maximum deductible amount have been made to or for the benefit of the Executive, such excess payments shall be refunded to the Employer with interest thereon at the applicable Federal rate determined under Section 1274(d) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be nondeductible to the Employer by reason of the operation of said Section 280G or any like statutory or regulatory provision. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G or any like statutory or regulatory provision, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five (45) days after the Employer has given notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion.
Appears in 1 contract
Termination Following a Change of Control. If there is a Change of Control, as defined in Section 6(f)(i) below, during In the Term, the provisions of this Section 6(f) shall apply and shall continue to apply throughout the remainder of the term of this Agreement. If, within eighteen (18) months following a Change of Control, the event that Executive's ’s employment is terminated by the Employer Company due to a change of control or Executive terminates his employment within 12 months of a change of control of the Company because his duties were materially changed and/or he is required to relocate his residence out of the greater Cleveland area and in addition to any amounts that Executive following is entitled to receive under this Agreement, Executive shall be entitled to receive the compensation benefits as set forth in Exhibit “A”. For purposes of this Agreement, a “Change of Control” will be deemed to have taken place upon the occurrence of any of the events listed in Section 6(f)(ii) below or if the Executive's employment is terminated without cause (in accordance with Section 6(c) above), in lieu of any payments under Section 6(d) above, the Employer shall pay to the Executive (or the Executive's estate, if applicable) a lump sum amount equal to 2.99 times the Executive's "base amount" within the meaning of Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code").following:
(i) Change of Control shall mean the occurrence of one any “person” or more of the following events:
(A) any "person" “group” (as such term is terms are used in Sections 13(d) and 14(d)(214(d) of the Securities Exchange Act of 1934, as amended 1934 (the "“Exchange Act"”)) (each, a “Person”) is or becomes a "the “beneficial owner" ” (as such term is defined in Rule Rules 13d-3 promulgated and 13d-5 under the Exchange Act) (other than the Employer, any trustee or other fiduciary holding securities under an employee benefit plan of the Employer, or any corporation owned, directly or indirectly, by the stockholders of the Employer, in substantially the same proportions as their except that a Person shall be deemed to have beneficial ownership of stock all shares that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of ▇▇▇▇▇▇▇▇time), directly or indirectly, of securities of ▇▇▇▇▇▇▇▇, representing fifty percent (50%) 51% or more of the combined voting power of ▇▇▇▇▇▇▇▇'▇ then the total outstanding securities; orsecurities of the Company;
(Bii) persons whoduring any period of two consecutive years, as individuals who at the beginning of such period constituted the Effective Date, constituted ▇▇▇▇▇▇▇▇'▇ Board of Directors of the Company (together with any new directors whose election to such Board of Directors, or whose nomination for election by the "Incumbent Board"shareholders of the Company, was approved by a vote of 66 2/3% of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason includingto constitute a majority of such Board of Directors of the Company then in office;
(iii) the consummation of a plan for the liquidation or dissolution of the Company; or
(iv) the consummation of the sale or other disposition (including by merger, without limitationconsolidation or otherwise) of all or substantially all of the assets of the Company to any Person as an entirety or substantially as an entirety in one transaction or a series of related transactions. Notwithstanding the foregoing, a Change of Control of the Company shall not be deemed to have occurred as a result of the consummation of (x) any transaction or a tender offer, proxy contest, merger series of related transactions immediately following in which the holders of the outstanding shares of the Company immediately prior to such transaction or similar transaction, series of transactions continue to constitute at least have substantially the same proportionate ownership in an entity which owns all or substantially all of the assets of the Company directly or indirectly immediately following such transaction or series of transactions; (y) any transaction or a majority series of ▇▇▇▇▇▇▇▇'▇ related transactions approved by the Board of DirectorsDirectors in accordance with its related party transaction policy to which a member of the Board of Directors or a Person affiliated with a member of the Board of Directors is a party, provided other than a transaction or series of related transactions in which the shareholders of the Company are entitled to participate and such member of the Board of Directors or a Person affiliated with such member of the Board of Directors is participating as a shareholder of the Company; (z) any underwritten public offering of the securities of the Company; (x)(x) any transaction or series of transactions that any person becoming a director involve an acquisition of ▇▇more than 51% of the shares by R▇▇▇▇▇▇ subsequent to the Effective Date whose election was approved by at least a majority of the directors then comprising the Incumbent Board shall, for purposes of this Section 6(f), be considered a member of the Incumbent Board; or
(C) the stockholders of ▇▇▇▇▇▇▇▇ approve a merger or consolidation of ▇▇▇▇▇▇▇▇ with any other corporation or other entity, other than (1) a merger or consolidation which would result in the voting securities of ▇▇▇▇▇▇▇▇ outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of the combined voting power of the voting securities of ▇▇▇▇▇▇▇▇ or such surviving entity outstanding immediately after such merger or consolidation or (2) a merger or consolidation effected to implement a recapitalization of ▇▇▇▇▇▇▇▇ (or similar transaction) in which no "person" (as hereinabove defined) acquires more than fifty percent (50%) of the combined voting power of ▇▇▇▇▇▇▇▇'▇ then outstanding securities; or
(D) the stockholders of ▇▇▇▇▇▇▇▇ approve a plan of complete liquidation of ▇. ▇▇▇▇▇▇▇ or an agreement for the sale or disposition by affiliate of R▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ of all or substantially all of ▇▇▇▇▇▇▇▇'▇ assets.
(ii) The events referred to in Section 6(f) above shall be as follows:
(A) a reduction of the Executive's salary other than a reduction that (1) is based on the Employer's financial performance or (2) is similar to the reduction made to the salaries provided to all or most other senior executives of the Employer; or
(B) a significant change in the Executive's responsibilities and/or duties which constitutes, when compared to the Executive's responsibilities and/or duties before the Change of Control, a demotion; or
(C) a material loss of title or office; or
(D) the relocation of the offices at which the Executive is principally employed as of the Change of Control to a location more than fifty (50) miles from such offices, which relocation is not approved by the Executive.
(iii) The Executive shall provide the Employer with reasonable notice and an opportunity to cure any of the events listed in Section 6(f)(ii) and shall not be entitled to compensation pursuant to this Section 6(f) unless the Employer fails to cure within a reasonable period; and
(iv) It is the intention of the Executive and of the Employer that no payments by the Employer to or for the benefit of the Executive under this Agreement or any other agreement or plan, if any, pursuant to which the Executive is entitled to receive payments or benefits shall be nondeductible to the Employer by reason of the operation of Section 280G of the Code relating to parachute payments or any like statutory or regulatory provision. Accordingly, and notwithstanding any other provision of this Agreement or any such agreement or plan, if by reason of the operation of said Section 280G or any like statutory or regulatory provision, any such payments exceed the amount which can be deducted by the Employer, such payments shall be reduced to the maximum amount which can be deducted by the Employer. To the extent that payments exceeding such maximum deductible amount have been made to or for the benefit of the Executive, such excess payments shall be refunded to the Employer with interest thereon at the applicable Federal rate determined under Section 1274(d) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be nondeductible to the Employer by reason of the operation of said Section 280G or any like statutory or regulatory provision. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G or any like statutory or regulatory provision, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five (45) days after the Employer has given notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion.
Appears in 1 contract
Termination Following a Change of Control. If there is 1- In the event that a “Change in Control” of Control, as defined in Section 6(f)(i) below, the Company shall occur at any time during the TermTerm hereof, the provisions Executive shall have the right to terminate the Executive’s employment under this Agreement upon thirty (30) days written notice given at any time within one year after the occurrence of such event, and such termination of the Executive’s employment with the Company pursuant to this Section 6(f6(g)(1), and, in any such event, Executive shall be entitled to (A) shall apply vesting of all options; and shall continue to apply throughout (B) payment of remaining salary and benefits for the remainder greater of the term Term of contract at salary or one year.
2- For purposes of this Agreement. If, within eighteen (18) months following a “Change of in Control, the Executive's employment is terminated by the Employer or the Executive following the occurrence of any ” of the events listed Company shall mean a change in control (A) as set forth in Section 6(f)(ii) below or if the Executive's employment is terminated without cause (in accordance with Section 6(c) above), in lieu of any payments under Section 6(d) above, the Employer shall pay to the Executive (or the Executive's estate, if applicable) a lump sum amount equal to 2.99 times the Executive's "base amount" within the meaning of Section 280G(b)(3) 280G of the Internal Revenue Code or (B) of 1986a nature that would be required to be reported in response to Item 1 of the current report on Form 253g or Form 8K, as amended in effect on the date hereof, pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (the "Code"“Exchange Act”).
(i) Change of Control ; provided that, without limitation, such a change in control shall mean the occurrence of one or more of the following eventsbe deemed to have occurred at such time as:
(A) any "“person" ”, other than the Executive, (as such term is used in Sections Section 13(d) and 14(d)(214(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) is or becomes a "the “beneficial owner" ” (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) (other than the Employer, any trustee or other fiduciary holding securities under an employee benefit plan of the Employer, or any corporation owned, directly or indirectly, by the stockholders of the Employer, in substantially the same proportions as their ownership of stock of ▇▇▇▇▇▇▇▇), directly or indirectly, of securities of ▇▇▇▇▇▇▇▇, the Company representing fifty percent (50%) or more of the combined voting power of ▇▇▇▇▇▇▇▇'▇ the Company’s outstanding securities then outstanding securitieshaving the right to vote at elections of directors; or,
(B) persons who, There is a failure to elect three or more (or such number of directors as of the Effective Date, constituted ▇▇▇▇▇▇▇▇'▇ Board of Directors (the "Incumbent Board") cease for any reason including, without limitation, as a result of a tender offer, proxy contest, merger or similar transaction, to would constitute at least a majority of ▇▇▇▇▇▇▇▇'▇ Board of Directors, provided that any person becoming a director of ▇▇▇▇▇▇▇▇ subsequent to the Effective Date whose election was approved by at least a majority of the directors then comprising the Incumbent Board shall, for purposes of this Section 6(f), be considered a member Directors) candidates nominated by management of the Incumbent BoardCompany to the Board of Directors; or
(C) The individuals who at the stockholders of ▇▇▇▇▇▇▇▇ approve a merger or consolidation of ▇▇▇▇▇▇▇▇ with any other corporation or other entity, other than (1) a merger or consolidation which would result in the voting securities of ▇▇▇▇▇▇▇▇ outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities commencement date of the surviving entity) more than fifty percent (50%) Agreement constitute the Board of Directors cease for any reason to constitute a majority thereof unless the election, or nomination for election, of each new director was approved by a vote of at least two thirds of the combined voting power directors then in office who were directors at the commencement of the voting securities of ▇▇▇▇▇▇▇▇ Agreement; or such surviving entity outstanding immediately after such merger or consolidation or (2) a merger or consolidation effected to implement a recapitalization of ▇▇▇▇▇▇▇▇ (or similar transaction) in which no "person" (as hereinabove defined) acquires more than fifty percent (50%) of the combined voting power of ▇▇▇▇▇▇▇▇'▇ then outstanding securities; orDocuSign Envelope ID: DA9F4F82-BB2F-40F3-93E6-C5E3AE2CF4D3
(D) the stockholders business of ▇▇▇▇▇▇▇▇ approve the Company for which the Executive’s services are principally performed is disposed of by the Company pursuant to a plan of partial or complete liquidation of ▇▇▇▇▇▇▇▇ the Company, a sale of assets (including stock of a subsidiary of the Company) or an agreement otherwise. Anything herein to the contrary notwithstanding, this Section 6(g)(2) will not apply where the Executive gives the Executive’s explicit written waiver stating that for the sale or disposition by ▇▇▇▇▇▇▇▇ purposes of all or substantially all of ▇▇▇▇▇▇▇▇'▇ assets.
(ii) The events referred to in this Section 6(f) above shall be as follows:
(A6(g)(2) a reduction of the Executive's salary other than a reduction that (1) is based on the Employer's financial performance or (2) is similar to the reduction made to the salaries provided to all or most other senior executives of the Employer; or
(B) a significant change Change in the Executive's responsibilities and/or duties which constitutes, when compared to the Executive's responsibilities and/or duties before the Change of Control, a demotion; or
(C) a material loss of title or office; or
(D) the relocation of the offices at which the Executive is principally employed as of the Change of Control to a location more than fifty (50) miles from such offices, which relocation is not approved by the Executive.
(iii) The Executive shall provide the Employer with reasonable notice and an opportunity to cure any of the events listed in Section 6(f)(ii) and shall not be entitled deemed to compensation pursuant have occurred. The Executive’s participation in any negotiations or other matters in relation to this Section 6(f) unless the Employer fails to cure within a reasonable period; and
(iv) It is the intention of the Executive and of the Employer that Change in Control shall in no payments by the Employer to or for the benefit of the Executive under this Agreement or any other agreement or plan, if any, pursuant to which the Executive is entitled to receive payments or benefits shall be nondeductible to the Employer by reason of the operation of Section 280G of the Code relating to parachute payments or any like statutory or regulatory provision. Accordingly, and notwithstanding any other provision of this Agreement or any way constitute such agreement or plan, if by reason of the operation of said Section 280G or any like statutory or regulatory provision, any such payments exceed the amount a waiver which can only be deducted given by an explicit written waiver as provided in the Employer, such payments shall be reduced to the maximum amount which can be deducted by the Employer. To the extent that payments exceeding such maximum deductible amount have been made to or for the benefit of the Executive, such excess payments shall be refunded to the Employer with interest thereon at the applicable Federal rate determined under Section 1274(d) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be nondeductible to the Employer by reason of the operation of said Section 280G or any like statutory or regulatory provision. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G or any like statutory or regulatory provision, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five (45) days after the Employer has given notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretionpreceding sentence.
Appears in 1 contract
Termination Following a Change of Control. If there is a Change of Control, as defined in Section 6(f)(i7(f)(i) below, during the Term, the provisions of this Section 6(f7(f) shall apply and shall continue to apply throughout the remainder of the term of this AgreementTerm. If, within eighteen
(181) months following a Change of Control, the Executive's employment is terminated by the Employer or the Executive following the occurrence of any of the events listed in Section 6(f)(ii7(f)(ii) below or if the Executive's employment is terminated without cause (in accordance with Section 6(c7(c) above); and (2) such termination occurs both within twelve (12) months following a Change of Control and during the Term, in lieu of any payments under Section 6(d) above, then the Employer shall pay to provide the Executive (or the Executive's estate, if applicable) a lump sum amount equal to 2.99 times with Termination Benefits for two (2) years from the date of termination of the Executive's "base amount" within employment. To the meaning extent that Termination Benefits would otherwise be due to the Executive, this Section 7(f) shall not be construed to require the provision of Section 280G(b)(3) of any additional pay or benefits to the Internal Revenue Code of 1986, as amended (the "Code")Executive.
(i) Change of Control shall mean the occurrence of one or more of the following events:
(A1) any "person" (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes a "beneficial owner" (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) (other than the Employer▇▇▇▇▇▇▇▇, any trustee or other fiduciary holding securities under an employee benefit plan of the Employer▇▇▇▇▇▇▇▇, or any corporation owned, directly or indirectly, by the stockholders of the Employer▇▇▇▇▇▇▇▇, in substantially the same proportions as their ownership of stock of ▇▇▇▇▇▇▇▇), directly or indirectly, of securities of ▇▇▇▇▇▇▇▇, representing fifty percent (50%) or more of the combined voting power of ▇▇▇▇▇▇▇▇'▇ then outstanding securities; or
(B2) persons who, as of the Effective Date, constituted ▇▇▇▇▇▇▇▇'▇ Board of Directors (the "Incumbent Board") cease for any reason including, without limitation, as a result of a tender offer, proxy contest, merger or similar transaction, to constitute at least a majority of ▇▇▇▇▇▇▇▇'▇ Board of Directors, provided that any person becoming a director of ▇▇▇▇▇▇▇▇ subsequent to the Effective Date whose election was approved by at least a majority of the directors then comprising the Incumbent Board shall, for purposes of this Section 6(f7(f), be considered a member of the Incumbent Board; or
(C3) the stockholders of ▇▇▇▇▇▇▇▇ approve a merger or consolidation of ▇▇▇▇▇▇▇▇ with any other corporation or other entity, other than (1) a merger or consolidation which would result in the voting securities of ▇▇▇▇▇▇▇▇ outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of the combined voting power of the voting securities of ▇▇▇▇▇▇▇▇ or such surviving entity outstanding immediately after such merger or consolidation or (2) a merger or consolidation effected to implement a recapitalization of ▇▇▇▇▇▇▇▇ (or similar transaction) in which no "person" (as hereinabove defined) acquires more than fifty percent (50%) of the combined voting power of ▇▇▇▇▇▇▇▇'▇ then outstanding securities; or
(D4) the stockholders of ▇▇▇▇▇▇▇▇ approve a plan of complete liquidation of ▇▇▇▇▇▇▇▇ or an agreement for the sale or disposition by ▇▇▇▇▇▇▇▇ of all or substantially all of ▇▇▇▇▇▇▇▇'▇ assets.
(ii) The events referred to in Section 6(f7(f) above shall be as follows:
(A) a reduction of the Executive's salary other than a reduction that (1) is based on the Employer▇▇▇▇▇▇▇▇'▇ or PNB's financial performance or (2) is similar to the reduction made to the salaries provided to all or most other senior executives of the Employer▇▇▇▇▇▇▇▇ or PNB; or
(B) a significant change in the Executive's responsibilities and/or duties which constitutes, when compared to the Executive's responsibilities and/or duties before the Change of Control, a demotion; or
(C) a material loss of title or office; or
(D) the relocation of the offices at which the Executive is principally employed as of the Change of Control to a location more than fifty (50) miles from such offices, which relocation is not approved by the Executive.
(iii) The Executive shall provide the Employer ▇▇▇▇▇▇▇▇ with reasonable notice and an opportunity to cure any of the events listed in Section 6(f)(ii7(f)(ii) and shall not be entitled to compensation pursuant to this Section 6(f7(f) unless the Employer ▇▇▇▇▇▇▇▇ fails to cure within a reasonable period; and
(iv) It is the intention of the Executive and of the Employer ▇▇▇▇▇▇▇▇ that no payments by the Employer ▇▇▇▇▇▇▇▇ to or for the benefit of the Executive under this Agreement or any other agreement or plan, if any, pursuant to which the Executive is entitled to receive payments or benefits shall be nondeductible to the Employer ▇▇▇▇▇▇▇▇ by reason of the operation of Section 280G of the Code relating to parachute payments or any like statutory or regulatory provision. Accordingly, and notwithstanding any other provision of this Agreement or any such agreement or plan, if by reason of the operation of said Section 280G or any like statutory or regulatory provision, any such payments exceed the amount which can be deducted by the Employer▇▇▇▇▇▇▇▇, such payments shall be reduced to the maximum amount which can be deducted by the Employer▇▇▇▇▇▇▇▇. To the extent that payments exceeding such maximum deductible amount have been made to or for the benefit of the Executive, such excess payments shall be refunded to the Employer ▇▇▇▇▇▇▇▇ with interest thereon at the applicable Federal rate determined under Section 1274(d) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be nondeductible to the Employer ▇▇▇▇▇▇▇▇ by reason of the operation of said Section 280G or any like statutory or regulatory provision. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G or any like statutory or regulatory provision, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five (45) days after the Employer ▇▇▇▇▇▇▇▇ has given notice of the need for such reduction, the Employer ▇▇▇▇▇▇▇▇ may determine the method of such reduction in its sole discretion.
Appears in 1 contract
Termination Following a Change of Control. If there is a Change of Control, as defined in Section 6(f)(i) below, during the Term, the provisions of this Section 6(f) shall apply and shall continue to apply throughout the remainder of the term of this AgreementTerm. If, within eighteen
(181) months following a Change of Control, the Executive's employment is terminated by the Employer or the Executive following the occurrence of any of the events listed in Section 6(f)(ii) below or if the Executive's employment is terminated without cause (in accordance with Section 6(c) above); and (2) such termination occurs both within twelve (12) months following a Change of Control and during the Term, in lieu of any payments under Section 6(d) above, then the Employer shall pay to provide the Executive (or the Executive's estate, if applicable) a lump sum amount equal to 2.99 times with Termination Benefits for two (2) years from the date of termination of the Executive's "base amount" within employment. To the meaning extent that Termination Benefits would otherwise be due to the Executive, this Section 6(f) shall not be construed to require the provision of Section 280G(b)(3) of any additional pay or benefits to the Internal Revenue Code of 1986, as amended (the "Code")Executive.
(ia) Change of Control shall mean the occurrence of one or more of the following events:
(A1) any "person" (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes a "beneficial owner" (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) (other than the Employer, any trustee or other fiduciary holding securities under an employee benefit plan of the Employer, or any corporation owned, directly or indirectly, by the stockholders of the Employer, in substantially the same proportions as their ownership of stock of ▇▇▇▇▇▇▇▇the Employer), directly or indirectly, of securities of ▇▇▇▇▇▇▇▇the Employer, representing fifty percent (50%) or more of the combined voting power of ▇▇▇▇▇▇▇▇'▇ the Employer's then outstanding securities; or
(B2) persons who, as of the Effective Date, constituted ▇▇▇▇▇▇▇▇'▇ the Employer's Board of Directors (the "Incumbent AIncumbent Board") cease for any reason including, without limitation, as a result of a tender offer, proxy contest, merger or similar transaction, to constitute at least a majority of ▇▇▇▇▇▇▇▇'▇ the Employer's Board of Directors, provided that any person becoming a director of ▇▇▇▇▇▇▇▇ the Employer subsequent to the Effective Date whose election was approved by at least a majority of the directors then comprising the Incumbent Board shall, for purposes of this Section 6(f), be considered a member of the Incumbent Board; or
(C3) the stockholders of ▇▇▇▇▇▇▇▇ the Employer approve a merger or consolidation of ▇▇▇▇▇▇▇▇ the Employer with any other corporation or other entity, other than (1) a merger or consolidation which would result in the voting securities of ▇▇▇▇▇▇▇▇ the Employer outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of the combined voting power of the voting securities of ▇▇▇▇▇▇▇▇ the Employer or such surviving entity outstanding immediately after such merger or consolidation or (2) a merger or consolidation effected to implement a recapitalization of ▇▇▇▇▇▇▇▇ the Employer (or similar transaction) in which no "person" (as hereinabove defined) acquires more than fifty percent (50%) of the combined voting power of ▇▇▇▇▇▇▇▇'▇ the Employer's then outstanding securities; or
(D4) the stockholders of ▇▇▇▇▇▇▇▇ the Employer approve a plan of complete liquidation of ▇▇▇▇▇▇▇▇ the Employer or an agreement for the sale or disposition by ▇▇▇▇▇▇▇▇ of all or substantially all of ▇▇▇▇▇▇▇▇'▇ the Employer's assets.
(iia) The events referred to in Section 6(f) above shall be as follows:
(A5) a reduction of the Executive's salary other than a reduction that (1) is based on the Employer's financial performance or (2) is similar to the reduction made to the salaries provided to all or most other senior executives of the Employer; or
(B6) a significant change in the Executive's responsibilities and/or duties which constitutes, when compared to the Executive's responsibilities and/or duties before the Change of Control, a demotion; or
(C) a material loss of title or office; or
(D) the relocation of the offices at which the Executive is principally employed as of the Change of Control to a location more than fifty (50) miles from such offices, which relocation is not approved by the Executive.
(iiia) The Executive shall provide the Employer with reasonable notice and an opportunity to cure any of the events listed in Section 6(f)(ii) and shall not be entitled to compensation pursuant to this Section 6(f) unless the Employer fails to cure within a reasonable period; and
(ivb) It is the intention of the Executive and of the Employer that no payments by the Employer to or for the benefit of the Executive under this Agreement or any other agreement or plan, if any, pursuant to which the Executive is entitled to receive payments or benefits shall be nondeductible to the Employer by reason of the operation of Section 280G of the Code relating to parachute payments or any like statutory or regulatory provision. Accordingly, and notwithstanding any other provision of this Agreement or any such agreement or plan, if by reason of the operation of said Section 280G or any like statutory or regulatory provision, any such payments exceed the amount which can be deducted by the Employer, such payments shall be reduced to the maximum amount which can be deducted by the Employer. To the extent that payments exceeding such maximum deductible amount have been made to or for the benefit of the Executive, such excess payments shall be refunded to the Employer with interest thereon at the applicable Federal rate determined under Section 1274(d) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be nondeductible to the Employer by reason of the operation of said Section 280G or any like statutory or regulatory provision. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G or any like statutory or regulatory provision, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five (45) days after the Employer has given notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion.
Appears in 1 contract
Termination Following a Change of Control. If there is (1) In the event that a “Change in Control” of Control, as defined in Section 6(f)(i) below, the Company shall occur at any time during the TermTerm hereof, the provisions Executive shall have the right to terminate the Executive’s employment under this Agreement upon thirty (30) days written notice given at any time within one year after the occurrence of such event, and such termination of the Executive’s employment with the Company pursuant to this Section 6(f6(g)(1), and, in any such event, Executive shall be entitled to (A) shall apply vesting of all options; and shall continue to apply throughout (B) payment of remaining salary and benefits for the remainder greater of the term Term of contract at salary or one year.
(2) For purposes of this Agreement. If, within eighteen (18) months following a “Change of in Control, the Executive's employment is terminated by the Employer or the Executive following the occurrence of any ” of the events listed Company shall mean a change in control (A) as set forth in Section 6(f)(ii) below or if the Executive's employment is terminated without cause (in accordance with Section 6(c) above), in lieu of any payments under Section 6(d) above, the Employer shall pay to the Executive (or the Executive's estate, if applicable) a lump sum amount equal to 2.99 times the Executive's "base amount" within the meaning of Section 280G(b)(3) 280G of the Internal Revenue Code or (B) of 1986a nature that would be required to be reported in response to Item 1 of the current report on Form 8K, as amended in effect on the date hereof, pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (the "Code"“Exchange Act”).
(i) Change of Control ; provided that, without limitation, such a change in control shall mean the occurrence of one or more of the following eventsbe deemed to have occurred at such time as:
(A) any "“person" ”, other than the Executive, (as such term is used in Sections Section 13(d) and 14(d)(214(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) is or becomes a "the “beneficial owner" ” (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) (other than the Employer, any trustee or other fiduciary holding securities under an employee benefit plan of the Employer, or any corporation owned, directly or indirectly, by the stockholders of the Employer, in substantially the same proportions as their ownership of stock of ▇▇▇▇▇▇▇▇), directly or indirectly, of securities of ▇▇▇▇▇▇▇▇, the Company representing fifty percent (50%) or more of the combined voting power of ▇▇▇▇▇▇▇▇'▇ the Company’s outstanding securities then outstanding securitieshaving the right to vote at elections of directors; or,
(B) persons who, as the business of the Effective DateCompany for which the Executive’s services are principally performed is disposed of by the Company pursuant to a partial or complete liquidation of the Company, constituted ▇▇▇▇▇▇▇▇'▇ Board a sale of Directors assets (the "Incumbent Board") cease for any reason including, without limitation, as a result including stock of a tender offer, proxy contest, merger subsidiary of the Company) or similar transaction, to constitute at least a majority of ▇▇▇▇▇▇▇▇'▇ Board of Directors, provided that any person becoming a director of ▇▇▇▇▇▇▇▇ subsequent otherwise. Anything herein to the Effective Date whose election was approved by at least a majority of contrary notwithstanding, this Section 6(f) will not apply where the directors then comprising Executive gives the Incumbent Board shall, Executive’s explicit written waiver stating that for the purposes of this Section 6(f), be considered a member of the Incumbent Board; or
(C) the stockholders of ▇▇▇▇▇▇▇▇ approve a merger or consolidation of ▇▇▇▇▇▇▇▇ with any other corporation or other entity, other than (1) a merger or consolidation which would result Change in the voting securities of ▇▇▇▇▇▇▇▇ outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of the combined voting power of the voting securities of ▇▇▇▇▇▇▇▇ or such surviving entity outstanding immediately after such merger or consolidation or (2) a merger or consolidation effected to implement a recapitalization of ▇▇▇▇▇▇▇▇ (or similar transaction) in which no "person" (as hereinabove defined) acquires more than fifty percent (50%) of the combined voting power of ▇▇▇▇▇▇▇▇'▇ then outstanding securities; or
(D) the stockholders of ▇▇▇▇▇▇▇▇ approve a plan of complete liquidation of ▇▇▇▇▇▇▇▇ or an agreement for the sale or disposition by ▇▇▇▇▇▇▇▇ of all or substantially all of ▇▇▇▇▇▇▇▇'▇ assets.
(ii) The events referred to in Section 6(f) above shall be as follows:
(A) a reduction of the Executive's salary other than a reduction that (1) is based on the Employer's financial performance or (2) is similar to the reduction made to the salaries provided to all or most other senior executives of the Employer; or
(B) a significant change in the Executive's responsibilities and/or duties which constitutes, when compared to the Executive's responsibilities and/or duties before the Change of Control, a demotion; or
(C) a material loss of title or office; or
(D) the relocation of the offices at which the Executive is principally employed as of the Change of Control to a location more than fifty (50) miles from such offices, which relocation is not approved by the Executive.
(iii) The Executive shall provide the Employer with reasonable notice and an opportunity to cure any of the events listed in Section 6(f)(ii) and shall not be entitled deemed to compensation pursuant have occurred. The Executive’s participation in any negotiations or other matters in relation to this Section 6(f) unless the Employer fails to cure within a reasonable period; and
(iv) It is the intention of the Executive and of the Employer that Change in Control shall in no payments by the Employer to or for the benefit of the Executive under this Agreement or any other agreement or plan, if any, pursuant to which the Executive is entitled to receive payments or benefits shall be nondeductible to the Employer by reason of the operation of Section 280G of the Code relating to parachute payments or any like statutory or regulatory provision. Accordingly, and notwithstanding any other provision of this Agreement or any way constitute such agreement or plan, if by reason of the operation of said Section 280G or any like statutory or regulatory provision, any such payments exceed the amount a waiver which can only be deducted given by an explicit written waiver as provided in the Employer, such payments shall be reduced to the maximum amount which can be deducted by the Employer. To the extent that payments exceeding such maximum deductible amount have been made to or for the benefit of the Executive, such excess payments shall be refunded to the Employer with interest thereon at the applicable Federal rate determined under Section 1274(d) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be nondeductible to the Employer by reason of the operation of said Section 280G or any like statutory or regulatory provision. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G or any like statutory or regulatory provision, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five (45) days after the Employer has given notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretionpreceding sentence.
Appears in 1 contract
Sources: Executive Employment Agreement (McTc Holdings, Inc.)
Termination Following a Change of Control. If there is 1- In the event that a “Change in Control” of Control, as defined in Section 6(f)(i) below, the Company shall occur at any time during the TermTerm hereof, the provisions Executive shall have the right to terminate the Executive’s employment under this Agreement upon thirty (30) days written notice given at any time within one year after the occurrence of such event, and such termination of the Executive’s employment with the Company pursuant to this Section 6(f6(g)(1), and, in any such event, Executive shall be entitled to (A) shall apply vesting of all options; and shall continue to apply throughout (B) payment of remaining salary and benefits for the remainder greater of the term Term of contract at salary or one year.
2- For purposes of this Agreement. If, within eighteen (18) months following a “Change of in Control, the Executive's employment is terminated by the Employer or the Executive following the occurrence of any ” of the events listed Company shall mean a change in control (A) as set forth in Section 6(f)(ii) below or if the Executive's employment is terminated without cause (in accordance with Section 6(c) above), in lieu of any payments under Section 6(d) above, the Employer shall pay to the Executive (or the Executive's estate, if applicable) a lump sum amount equal to 2.99 times the Executive's "base amount" within the meaning of Section 280G(b)(3) 280G of the Internal Revenue Code or (B) of 1986a nature that would be required to be reported in response to Item 1 of the current report on Form 253g or Form 8K, as amended in effect on the date hereof, pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (the "Code"“Exchange Act”).
(i) Change of Control ; provided that, without limitation, such a change in control shall mean the occurrence of one or more of the following eventsbe deemed to have occurred at such time as:
(A) any "“person" ”, other than the Executive, (as such term is used in Sections Section 13(d) and 14(d)(214(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) is or becomes a "the “beneficial owner" ” (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) (other than the Employer, any trustee or other fiduciary holding securities under an employee benefit plan of the Employer, or any corporation owned, directly or indirectly, by the stockholders of the Employer, in substantially the same proportions as their ownership of stock of ▇▇▇▇▇▇▇▇), directly or indirectly, of securities of ▇▇▇▇▇▇▇▇, the Company representing fifty percent (50%) or more of the combined voting power of ▇▇▇▇▇▇▇▇'▇ the Company’s outstanding securities then outstanding securitieshaving the right to vote at elections of directors; or,
(B) persons who, There is a failure to elect three or more (or such number of directors as of the Effective Date, constituted ▇▇▇▇▇▇▇▇'▇ Board of Directors (the "Incumbent Board") cease for any reason including, without limitation, as a result of a tender offer, proxy contest, merger or similar transaction, to would constitute at least a majority of ▇▇▇▇▇▇▇▇'▇ Board of Directors, provided that any person becoming a director of ▇▇▇▇▇▇▇▇ subsequent to the Effective Date whose election was approved by at least a majority of the directors then comprising the Incumbent Board shall, for purposes of this Section 6(f), be considered a member Directors) candidates nominated by management of the Incumbent BoardCompany to the Board of Directors; or
(C) The individuals who at the stockholders of ▇▇▇▇▇▇▇▇ approve a merger or consolidation of ▇▇▇▇▇▇▇▇ with any other corporation or other entity, other than (1) a merger or consolidation which would result in the voting securities of ▇▇▇▇▇▇▇▇ outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities commencement date of the surviving entity) more than fifty percent (50%) Agreement constitute the Board of Directors cease for any reason to constitute a majority thereof unless the election, or nomination for election, of each new director was approved by a vote of at least two thirds of the combined voting power directors then in office who were directors at the commencement of the voting securities of ▇▇▇▇▇▇▇▇ or such surviving entity outstanding immediately after such merger or consolidation or (2) a merger or consolidation effected to implement a recapitalization of ▇▇▇▇▇▇▇▇ (or similar transaction) in which no "person" (as hereinabove defined) acquires more than fifty percent (50%) of the combined voting power of ▇▇▇▇▇▇▇▇'▇ then outstanding securitiesAgreement; or
(D) the stockholders business of ▇▇▇▇▇▇▇▇ approve the Company for which the Executive’s services are principally performed is disposed by the Company pursuant to a plan of partial or complete liquidation of ▇▇▇▇▇▇▇▇ the Company, a sale of assets (including stock of a subsidiary of the Company) or an agreement otherwise. DocuSign Envelope ID: BEF16C22-357F-4BC1-B9B8-A1228C4FA009 Anything herein to the contrary notwithstanding, this Section 6(g)(2) will not apply where the Executive gives the Executive’s explicit written waiver stating that for the sale or disposition by ▇▇▇▇▇▇▇▇ purposes of all or substantially all of ▇▇▇▇▇▇▇▇'▇ assets.
(ii) The events referred to in this Section 6(f) above shall be as follows:
(A6(g)(2) a reduction of the Executive's salary other than a reduction that (1) is based on the Employer's financial performance or (2) is similar to the reduction made to the salaries provided to all or most other senior executives of the Employer; or
(B) a significant change Change in the Executive's responsibilities and/or duties which constitutes, when compared to the Executive's responsibilities and/or duties before the Change of Control, a demotion; or
(C) a material loss of title or office; or
(D) the relocation of the offices at which the Executive is principally employed as of the Change of Control to a location more than fifty (50) miles from such offices, which relocation is not approved by the Executive.
(iii) The Executive shall provide the Employer with reasonable notice and an opportunity to cure any of the events listed in Section 6(f)(ii) and shall not be entitled deemed to compensation pursuant have occurred. The Executive’s participation in any negotiations or other matters in relation to this Section 6(f) unless the Employer fails to cure within a reasonable period; and
(iv) It is the intention of the Executive and of the Employer that Change in Control shall in no payments by the Employer to or for the benefit of the Executive under this Agreement or any other agreement or plan, if any, pursuant to which the Executive is entitled to receive payments or benefits shall be nondeductible to the Employer by reason of the operation of Section 280G of the Code relating to parachute payments or any like statutory or regulatory provision. Accordingly, and notwithstanding any other provision of this Agreement or any way constitute such agreement or plan, if by reason of the operation of said Section 280G or any like statutory or regulatory provision, any such payments exceed the amount a waiver which can only be deducted given by an explicit written waiver as provided in the Employer, such payments shall be reduced to the maximum amount which can be deducted by the Employer. To the extent that payments exceeding such maximum deductible amount have been made to or for the benefit of the Executive, such excess payments shall be refunded to the Employer with interest thereon at the applicable Federal rate determined under Section 1274(d) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be nondeductible to the Employer by reason of the operation of said Section 280G or any like statutory or regulatory provision. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G or any like statutory or regulatory provision, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five (45) days after the Employer has given notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretionpreceding sentence.
Appears in 1 contract
Termination Following a Change of Control. If there is a Change In addition to the ----------------------------------------- amounts set forth in Section 5(a), in the event of Control, termination of the Executive's employment hereunder by the Company without "cause" (other than upon death or Disability) or by the Executive for "good reason" (each as defined in Section 6(f)(i4 hereof) below, during the Term, the provisions of this Section 6(fwithin one (1) shall apply and shall continue to apply throughout the remainder of the term of this Agreement. If, within eighteen (18) months year following a "Change of Control", all of the Executive's employment is terminated unvested options to purchase Company common stock held by the Employer or the Executive following the occurrence of any of the events listed shall immediately vest. A "Change in Section 6(f)(ii) below or if the Executive's employment is terminated without cause (in accordance with Section 6(c) above), in lieu of any payments under Section 6(d) above, the Employer Control" shall pay be deemed to the Executive (or the Executive's estate, if applicable) a lump sum amount equal to 2.99 times the Executive's "base amount" within the meaning of Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code").have taken place if:
(i) Change of Control there shall mean the occurrence of one be consummated any consolidation or more merger of the following events:Company in which the Company is not the continuing or surviving corporation or pursuant to which shares of the Company's capital stock are converted into cash, securities or other property (other than a consolidation or merger of the Company in which the holders of the Company's voting stock immediately prior to the consolidation or merger shall, upon consummation of the consolidation or merger, own at least 50% of the voting stock) or any sale, lease, exchange or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the assets of the Company; or
(Aii) any "person" person (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes a "shall, after the date hereof, become the beneficial owner" owner (as such term is defined in Rule Rules 13d-3 promulgated and 13d-5 under the Exchange Act) (other than the Employer, any trustee or other fiduciary holding securities under an employee benefit plan of the Employer, or any corporation owned, directly or indirectly, by the stockholders of the Employer, in substantially the same proportions as their ownership of stock of ▇▇▇▇▇▇▇▇), directly or indirectly, of securities of ▇▇▇▇▇▇▇▇, the Company representing fifty percent (50%) 35% or more of the combined voting power of ▇▇▇▇▇▇▇▇'▇ all of the then outstanding securities; or
(B) persons who, as securities of the Effective Date, constituted ▇▇▇▇▇▇▇▇'▇ Company having the right under ordinary circumstances to vote in an election of the Board of Directors (the "Incumbent Board") cease for any reason including, without limitation, as a result any securities of a tender offer, proxy contest, merger or similar transaction, to constitute at least a majority of ▇▇▇▇▇▇▇▇'▇ Board of Directors, provided the Company that any such person becoming a director has the right to acquire pursuant to any agreement, or upon exercise of ▇▇▇▇▇▇▇▇ subsequent to conversion rights, warrants or options, or otherwise, shall be deemed beneficially owned by such person); or
(iii) individuals who as of the Effective Date date hereof constitute the entire Board and any new directors whose election was by the Company's shareholders, or whose nomination for election by the Company's board, shall have been approved by a vote of at least a majority of the directors then comprising in office who either were directors at the Incumbent Board shall, date hereof or whose election or nomination for purposes of this Section 6(f), be considered election shall have been so approved (the "Continuing Directors") shall cease for any reason to constitute a member majority of the Incumbent Board; or
(C) the stockholders of ▇▇▇▇▇▇▇▇ approve a merger or consolidation of ▇▇▇▇▇▇▇▇ with any other corporation or other entity, other than (1) a merger or consolidation which would result in the voting securities of ▇▇▇▇▇▇▇▇ outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities members of the surviving entity) more than fifty percent (50%) of the combined voting power of the voting securities of ▇▇▇▇▇▇▇▇ or such surviving entity outstanding immediately after such merger or consolidation or (2) a merger or consolidation effected to implement a recapitalization of ▇▇▇▇▇▇▇▇ (or similar transaction) in which no "person" (as hereinabove defined) acquires more than fifty percent (50%) of the combined voting power of ▇▇▇▇▇▇▇▇'▇ then outstanding securities; or
(D) the stockholders of ▇▇▇▇▇▇▇▇ approve a plan of complete liquidation of ▇▇▇▇▇▇▇▇ or an agreement for the sale or disposition by ▇▇▇▇▇▇▇▇ of all or substantially all of ▇▇▇▇▇▇▇▇'▇ assetsBoard.
(ii) The events referred to in Section 6(f) above shall be as follows:
(A) a reduction of the Executive's salary other than a reduction that (1) is based on the Employer's financial performance or (2) is similar to the reduction made to the salaries provided to all or most other senior executives of the Employer; or
(B) a significant change in the Executive's responsibilities and/or duties which constitutes, when compared to the Executive's responsibilities and/or duties before the Change of Control, a demotion; or
(C) a material loss of title or office; or
(D) the relocation of the offices at which the Executive is principally employed as of the Change of Control to a location more than fifty (50) miles from such offices, which relocation is not approved by the Executive.
(iii) The Executive shall provide the Employer with reasonable notice and an opportunity to cure any of the events listed in Section 6(f)(ii) and shall not be entitled to compensation pursuant to this Section 6(f) unless the Employer fails to cure within a reasonable period; and
(iv) It is the intention of the Executive and of the Employer that no payments by the Employer to or for the benefit of the Executive under this Agreement or any other agreement or plan, if any, pursuant to which the Executive is entitled to receive payments or benefits shall be nondeductible to the Employer by reason of the operation of Section 280G of the Code relating to parachute payments or any like statutory or regulatory provision. Accordingly, and notwithstanding any other provision of this Agreement or any such agreement or plan, if by reason of the operation of said Section 280G or any like statutory or regulatory provision, any such payments exceed the amount which can be deducted by the Employer, such payments shall be reduced to the maximum amount which can be deducted by the Employer. To the extent that payments exceeding such maximum deductible amount have been made to or for the benefit of the Executive, such excess payments shall be refunded to the Employer with interest thereon at the applicable Federal rate determined under Section 1274(d) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be nondeductible to the Employer by reason of the operation of said Section 280G or any like statutory or regulatory provision. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G or any like statutory or regulatory provision, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five (45) days after the Employer has given notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion.
Appears in 1 contract
Termination Following a Change of Control. If (i) Subject to the provisions of Section 8(e), if, during the Employment Period there is a Change of Control, Control (as defined in Section 6(f)(i) below), during and the Term, Executive incurs an Involuntary Termination prior to the provisions first anniversary of this Section 6(f) shall apply and shall continue to apply throughout the remainder of the term of this Agreement. If, within eighteen (18) months following a Change of in Control, the Executive's employment is terminated by Executive shall, in addition to the Employer or the Executive following the occurrence of any of the events listed amounts provided in Section 6(f)(ii) below or if the Executive's employment is terminated without cause (in accordance with Section 6(c) above8(a), but in lieu of any other payments he may otherwise be entitled to under Section 6(d8 of this Agreement, be entitled to receive (i) abovethe Prorated Performance Bonus, (ii) a cash amount equal to one and one half (1.5) times the Employer shall pay to the Executive sum of (or A) the Executive's estateBase Salary and Annual Bonus as in effect on the Date of Termination and (B) the Incentive Bonus paid in the year immediately preceding the year in which the Date of Termination occurs (the aggregate amount being the "Severance Payment"), if and (iii) continued participation in the Group Insurance Plans on the same terms as such plans are being provided to the Company's senior executives for a period of 18 months following the Date of Termination for the Executive, his spouse, and his dependents, as applicable) . Any Prorated Performance Bonus shall be paid in cash in a single lump sum amount equal to 2.99 times as soon as practicable, but in no event more than 14 days following the Executive's "base amount" Date of Termination (or at such earlier date required by law). The Severance Payment shall be paid within the meaning of Section 280G(b)(3) 14 days of the Internal Revenue Code Date of 1986, as amended (the "Code")Termination.
(iii) For purposes of this Agreement, a "Change of Control Control" shall mean the occurrence of one or more of the following eventsbe deemed to have occurred if:
(A) any "person" person (as such term is used in Sections 13(d) and 14(d)(2within the meaning of Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes a "beneficial owner" ), other than CVC, OTPP, or any of their Affiliates or Qualified Transferees (as such term is terms are defined in the Stockholders Agreement), including any group (within the meaning of Rule 13d-3 promulgated 13d-5(b) under the Exchange Act) )), acquires "beneficial ownership" (other than within the Employer, any trustee or other fiduciary holding securities meaning of Rule 13d-3 under an employee benefit plan of the Employer, or any corporation owned, directly or indirectly, by the stockholders of the Employer, in substantially the same proportions as their ownership of stock of ▇▇▇▇▇▇▇▇Exchange Act), directly or indirectly, of securities of ▇▇▇▇▇▇▇▇, Holding representing fifty percent (more than 50%) or more % of the combined voting power Voting Power (as defined below) of ▇▇▇▇▇▇▇▇'▇ then outstanding Holding's securities; or;
(B) persons who, as within any 24-month period commencing after an initial public offering of the Effective Datecommon stock of Holding, constituted ▇▇▇▇▇▇▇▇'▇ Board the persons who were directors of Directors Holding at the beginning of such period (the "Incumbent BoardDirectors") shall cease for any reason including, without limitation, as a result of a tender offer, proxy contest, merger or similar transaction, to constitute at least a majority of ▇▇▇▇▇▇▇▇'▇ the Board or the board of Directorsdirectors of any successor to Holding, provided that any person becoming a director of ▇▇▇▇▇▇▇▇ subsequent (i) elected to the Effective Date whose election was approved Board, or nominated for election, by at least a majority of the directors Incumbent Directors then comprising still in office or (ii) designated to serve on the Board by CVC or OTPP pursuant to the Stockholder's Agreement shall be deemed to be an Incumbent Board shall, Director for purposes of this Section 6(f), be considered a member definition of the Incumbent Board; orChange in Control;
(C) the stockholders of ▇▇▇▇▇▇▇▇ Holding, if at the time in question Holding is a stock company, approve a merger, consolidation, share exchange, division, sale or other disposition of all or substantially all of the assets of Holding (a "Corporate Event"), and immediately following the consummation of which the stockholders of Holding immediately prior to such Corporate Event do not hold, directly or indirectly, a majority of the Voting Power of (x) in the case of a merger or consolidation consolidation, the surviving or resulting corporation, (y) in the case of ▇▇▇▇▇▇▇▇ with any other a share exchange, the acquiring corporation or other entity, other than (1z) a merger or consolidation which would result in the voting securities case of ▇▇▇▇▇▇▇▇ outstanding a division or a sale or other disposition of assets, each surviving, resulting or acquiring corporation which, immediately following the relevant Corporate Event, holds more than 50% of the consolidated assets of Holding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of the combined voting power of the voting securities of ▇▇▇▇▇▇▇▇ or such surviving entity outstanding immediately after such merger or consolidation or (2) a merger or consolidation effected to implement a recapitalization of ▇▇▇▇▇▇▇▇ (or similar transaction) in which no "person" (as hereinabove defined) acquires more than fifty percent (50%) of the combined voting power of ▇▇▇▇▇▇▇▇'▇ then outstanding securitiesCorporate Event; or
(D) any other event occurs which the stockholders of ▇▇▇▇▇▇▇▇ approve Board declares to be a plan of complete liquidation of ▇▇▇▇▇▇▇▇ or an agreement for the sale or disposition by ▇▇▇▇▇▇▇▇ of all or substantially all of ▇▇▇▇▇▇▇▇'▇ assets.
(ii) The events referred to in Section 6(f) above shall be as follows:
(A) a reduction of the Executive's salary other than a reduction that (1) is based on the Employer's financial performance or (2) is similar to the reduction made to the salaries provided to all or most other senior executives of the Employer; or
(B) a significant change in the Executive's responsibilities and/or duties which constitutes, when compared to the Executive's responsibilities and/or duties before the Change of Control. Notwithstanding the foregoing, a demotion; or
(C) a material loss of title or office; or
(D) the relocation of the offices at which the Executive is principally employed as of the Change of Control to a location more than fifty (50) miles from such offices, which relocation is not approved by the Executive.
(iii) The Executive shall provide the Employer with reasonable notice and an opportunity to cure any of the events listed in Section 6(f)(ii) and shall not be entitled deemed to compensation pursuant to this Section 6(fhave occurred (a) unless the Employer fails to cure within merely as a reasonable period; and
(iv) It is the intention result of an underwritten offering of the Executive and equity securities of Holding where no Person (including any group (within the meaning of Rule 13d-5(b) under the Exchange Act)) acquires more than 50% of the Employer that no payments by the Employer to or for the benefit of the Executive under this Agreement or any other agreement or plan, if any, pursuant to which the Executive is entitled to receive payments or benefits shall be nondeductible to the Employer by reason of the operation of Section 280G of the Code relating to parachute payments or any like statutory or regulatory provision. Accordingly, and notwithstanding any other provision of this Agreement or any beneficial ownership interests in such agreement or plan, if by reason of the operation of said Section 280G or any like statutory or regulatory provision, any such payments exceed the amount which can be deducted by the Employer, such payments shall be reduced to the maximum amount which can be deducted by the Employer. To the extent that payments exceeding such maximum deductible amount have been made to or for the benefit of the Executive, such excess payments shall be refunded to the Employer with interest thereon at the applicable Federal rate determined under Section 1274(d) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be nondeductible to the Employer by reason of the operation of said Section 280G or any like statutory or regulatory provision. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G or any like statutory or regulatory provision, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five (45) days after the Employer has given notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretionsecurities.
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