Termination Following Change of Control. If a Change of Control occurs during the term of this Agreement and either (i) Executive’s employment is terminated by the Company for a reason other than Cause within sixty (60) days before the Change of Control or one hundred eighty (180) days after the Change of Control or (ii) Executive terminates his employment due to Good Reason by delivery of a notice to the Company within one hundred eighty (180) days after the Change of Control setting forth the conditions that constitute Good Reason, then Executive will be entitled to the benefits provided in this Section 4.5 in lieu of any benefits otherwise payable under Sections 4.3, 4.4 or 4.6; provided that Executive shall not be entitled to such benefits if such termination is due to Executive’s death or Disability. As used in this paragraph, Good Reason means, without Executive’s express written consent, the occurrence of any of the following conditions: (i) a material reduction in Executive’s base compensation; (ii) a material diminution in Executive’s authority, duties, or responsibilities; or (iii) a relocation of Executive’s primary employment duties by more than 50 miles; provided, however, that the occurrence of any such condition shall not constitute Good Reason unless Executive provides notice to the Company of the existence of such condition not later than the earlier to occur of (A) 90 days after the initial existence of such condition and (B) 180 days after the date of the Change of Control, and the Company shall have failed to remedy such condition within 30 days after receipt of such notice. In the event Executive becomes eligible for benefits under this Section 4.5, Executive will receive (i) any benefits to which Executive is entitled pursuant to and in accordance with the terms of any plan of the Company then in effect and any existing contract between Executive and the Company, and (ii) the following benefits, conditioned upon Executive signing a release of claims in a form reasonably satisfactory to the Company not later than twenty-one (21) calendar days after the date of Executive’s termination: (a) Executive’s unvested equity awards will immediately vest and become exercisable; and (b) a lump sum payment in an amount equal to Executive’s Cash Compensation received by Executive from the Company for the two (2) most recent taxable years ending before the date upon which the Change of Control occurred, payable upon the latest of (i) thirty (30) calendar days from the date Executive’s employment terminates, (ii) thirty (30) calendar days from the date of the Change of Control or (iii) the expiration of any applicable revocation period under the release, but in no event later than March 15th of the year following the year in which the termination of employment occurs. As used in this paragraph, Cash Compensation means Executive’s Base Salary and Performance Award payment, in each case including any amounts deferred in the Company’s 401(k) plan and deferred compensation plan. Notwithstanding any other provision of this Agreement, if any payment or benefit Executive would receive pursuant to a Change of Control of the Company (each a “Payment” and collectively the “Payments”) could constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company shall reduce the Payments so that the maximum amount of the Payments shall be One Dollar ($1.00) less than the amount that would cause the Payments to be subject to the excise tax imposed by Section 4999 of the Code. If a reduction in Payments is necessary under Section 4.5, reduction shall occur in the following order unless Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the Payment occurs): reduction of cash payments and then cancellation of accelerated vesting of equity awards. A nationally recognized, independent accounting firm selected by the Company shall perform the calculations required by this Agreement. The Company shall bear all reasonable expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with supporting documentation, to the Company and Executive promptly after the date on which Executive’s right to a Payment is triggered (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company, including a reasonable time prior to the Payment trigger date. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Executive and the Company.
Appears in 2 contracts
Sources: Executive Employment Agreement (Flir Systems Inc), Executive Employment Agreement (Flir Systems Inc)
Termination Following Change of Control. If In the event that the Company terminates Executive’s employment without Cause within one (1) year following a Change of Control occurs during the term of this Agreement and either (i) Executive’s employment is terminated by as defined below), the Company for shall pay to the Executive, in a reason other lump sum, not less than Cause within thirty-one (31) days nor more than sixty (60) days before following the Change date of Control or one the such termination, an amount equal to two hundred eighty and ninety-nine percent (180299%) days after of the Change of Control or (ii) Executive terminates his employment due to Good Reason by delivery of a notice to the Company within one hundred eighty (180) days after the Change of Control setting forth the conditions that constitute Good Reason, then Executive will be entitled to the benefits provided in this Section 4.5 in lieu of any benefits otherwise payable under Sections 4.3, 4.4 or 4.6; provided that Executive shall not be entitled to such benefits if such termination is due to Executive’s death or Disability. As used in this paragraph, Good Reason means, without Executive’s express written consent, the occurrence of any of the following conditions: (i) a material reduction in Executive’s base compensation; (ii) a material diminution in Executive’s authority, duties, or responsibilities; or (iii) a relocation of Executive’s primary employment duties by more than 50 milesBase Amount; provided, however, that the occurrence Company shall have the authority to delay the payment of any such condition amount payable under this Section IV(D) to the extent it deems necessary or appropriate to comply with Section 409A(a)(2)(B)(i) of the Code (relating to payments made to certain “key employees” of certain publicly-traded companies) and in such event, any such amount to which Executive would otherwise be entitled during the six (6) month period immediately following Executive’s separation from service will be paid on the first business day following the expiration of such six (6) month period. For purposes of Section IV(D) and V(B), “Base Amount” shall mean Executive’s average annual compensation as reported on IRS Form W-2 (excluding any compensation attributable to the granting, vesting or exercise of stock options or stock grants) for each of the five (5) taxable years preceding the Executive’s termination or, if shorter, the portion of the five (5) taxable years preceding Executive’s termination during which he or she performed personal services for the Company or a related entity. Any other provisions of this Agreement or of the Company’s incentive bonus plan notwithstanding, after the amount described in this Section IV(D) has been paid to the Executive, the Executive shall have no further interest in such plan. Executive’s eligibility for severance under this Section IV(D) is conditioned on Executive’s having first signed a release agreement in the form attached as Exhibit A. Executive shall not constitute Good Reason unless be entitled to any severance payments under this Section IV (D) if Executive’s employment is terminated For Cause, By Death or By Disability (as defined in Section IV above) or if Executive’s employment is voluntarily terminated by Executive provides notice to for any reason. In the event that the Company of the existence of terminates Executive’s employment without Cause and such condition termination does not later than the earlier to occur of within one (A1) 90 days after the initial existence of such condition and (B) 180 days after the date of the year following a Change of Control, and the Company shall have failed to remedy such condition within 30 days after receipt of such notice. In the event Executive becomes eligible for benefits under this Section 4.5, Executive will be eligible to receive (ithe benefits described in Section III(B) any benefits to which Executive is entitled pursuant to and in accordance with the terms of any plan of the Company then in effect and any existing contract between Executive and the Company, and (ii) the following benefits, conditioned upon Executive signing a release of claims in a form reasonably satisfactory to the Company not later than twenty-one (21) calendar days after the date of Executive’s termination:
(a) Executive’s unvested equity awards will immediately vest and become exercisable; and
(b) a lump sum payment in an amount equal to Executive’s Cash Compensation received by Executive from the Company for the two (2) most recent taxable years ending before the date upon which the Change of Control occurred, payable upon the latest of (i) thirty (30) calendar days from the date Executive’s employment terminates, (ii) thirty (30) calendar days from the date of the Change of Control or (iii) the expiration of any applicable revocation period under the release, but in no event later than March 15th of the year following the year in which the termination of employment occurs. As used in this paragraph, Cash Compensation means Executive’s Base Salary and Performance Award payment, in each case including any amounts deferred in the Company’s 401(k) plan and deferred compensation plan. Notwithstanding any other provision of this Agreement, if any payment or benefit Executive would receive pursuant to a Change of Control of the Company (each a “Payment” and collectively the “Payments”) could constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company shall reduce the Payments so that the maximum amount of the Payments shall be One Dollar ($1.00) less than the amount that would cause the Payments to be subject to the excise tax imposed by Section 4999 of the Code. If a reduction in Payments is necessary under Section 4.5, reduction shall occur in the following order unless Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the Payment occurs): reduction of cash payments and then cancellation of accelerated vesting of equity awards. A nationally recognized, independent accounting firm selected by the Company shall perform the calculations required by this Agreement. The Company shall bear all reasonable expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with supporting documentation, to the Company and Executive promptly after the date on which Executive’s right to a Payment is triggered (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company, including a reasonable time prior to the Payment trigger date. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Executive and the Companyabove.
Appears in 2 contracts
Sources: Executive Employment Agreement (Glenborough Realty Trust Inc), Executive Employment Agreement (Glenborough Realty Trust Inc)
Termination Following Change of Control. If (a) Subject to 3 (c) below, in the event that, within one (1) year following a Change of Control occurs during the term of this Agreement and Control, either (i) the Company (or its successor) terminates the Executive’s employment is terminated by the Company for a reason other than without Cause within sixty (60) days before the Change of Control or one hundred eighty (180) days after the Change of Control or (ii) the Executive terminates his Executive’s employment due to Good Reason by delivery of a notice to the Company within one hundred eighty (180) days after the Change of Control setting forth the conditions that constitute for Good Reason, then Executive will be entitled to the benefits provided in this Section 4.5 in lieu of any benefits otherwise payable under Sections 4.3, 4.4 or 4.6; provided that Executive shall not be entitled to such benefits if such termination is due to Executive’s death or Disability. As used in this paragraph, Good Reason means, without Executive’s express written consent, the occurrence of any of the following conditions: (i) a material reduction in Executive’s base compensation; (ii) a material diminution in Executive’s authority, duties, or responsibilities; or (iii) a relocation of Executive’s primary employment duties by more than 50 miles; provided, however, that the occurrence of any such condition shall not constitute Good Reason unless Executive provides notice to the Company of the existence of such condition not later than the earlier to occur of (A) any unvested Company stock options then held by the Executive shall immediately vest in full and shall remain exercisable for 90 days after following the initial existence effective date of such condition and termination, (B) 180 days after subject to the date Executive’s execution of the Change Release and to the provisions of ControlSection 3(c) below, and the Company shall have failed pay the Executive in one lump sum payment an amount equal to remedy such condition within 30 days after receipt of such notice. In the event Executive becomes eligible for benefits under this Section 4.5, Executive will receive (i) any benefits to which Executive is entitled pursuant to and in accordance with the terms of any plan twenty-four months of the Company then in effect and any existing contract between Executive and the Company, and (ii) the following benefits, conditioned upon Executive signing a release of claims in a form reasonably satisfactory to the Company not later than twenty-one (21) calendar days after the date of Executive’s termination:
(a) Executive’s unvested equity awards will immediately vest and become exercisable; andthen current Annual Base Salary.
(b) a lump sum payment in an amount equal to Additionally, should the Executive or any of Executive’s Cash Compensation received by Executive from family members elect COBRA continuation coverage during the twenty-four month period immediately following the Executive’s termination pursuant to Section 3(a) hereof, the Company shall be responsible for paying the two difference between the cost of COBRA continuation coverage and the premium contribution amount applicable to the Executive as of the effective date of such termination of employment, subject to any applicable carrier and Company rate adjustments. After such twenty-four month period ends, if Executive or any of Executive’s family members elect to continue COBRA coverage, Executive will be responsible for all of the premium payments. Information about Executive’s rights under COBRA and forms for electing continuation coverage will be provided to Executive by a separate letter on or about the effective date of termination of employment.
(2c) most recent taxable years ending before In the date upon which event the Change of Control occurred, payable upon Executive is party to a written executive employment agreement (“EEA”) with the latest of (i) thirty (30) calendar days from Company and the date Executive’s employment terminateswith the Company is terminated pursuant to 3(a) above, (ii) thirty (30) calendar days from then the date of Executive, at the Change of Control or (iii) the expiration of any applicable revocation period under the release, but in no event later than March 15th of the year following the year in which the termination of employment occurs. As used in this paragraph, Cash Compensation means Executive’s Base Salary option, shall be entitled to receive the benefits set forth in the EEA, IN LIEU OF the severance benefits set forth in 3(a) and Performance Award payment3(b) above. For the avoidance of doubt, in each case including any amounts deferred the event the Executive opts to receive the severance benefits set forth under an EEA, such benefits shall be in the Company’s 401(kLIEU OF AND NOT ADDITIONAL TO severance benefits set forth in Sections 3(a) plan and deferred compensation plan. Notwithstanding any other provision 3(b) of this Agreement, if any payment or benefit Executive would receive pursuant to a Change of Control of the Company (each a “Payment” and collectively the “Payments”) could constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company shall reduce the Payments so that the maximum amount of the Payments shall be One Dollar ($1.00) less than the amount that would cause the Payments to be subject to the excise tax imposed by Section 4999 of the Code. If a reduction in Payments is necessary under Section 4.5, reduction shall occur in the following order unless Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the Payment occurs): reduction of cash payments and then cancellation of accelerated vesting of equity awards. A nationally recognized, independent accounting firm selected by the Company shall perform the calculations required by this Agreement. The Company shall bear all reasonable expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with supporting documentation, to the Company and Executive promptly after the date on which Executive’s right to a Payment is triggered (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company, including a reasonable time prior to the Payment trigger date. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Executive and the Company.
Appears in 1 contract
Termination Following Change of Control. If a Change of Control occurs during In the term of this Agreement and either event that (i) the Company or the resulting or surviving entity in a Change in Control (as defined in the Stock Option Agreement) or Corporate Transaction (as defined in the Stock Option Agreement) (Change in Control and Corporate Transaction collectively referred to herein as “Change of Control”) terminates Executive’s employment is terminated by the Company for a reason other than without Cause within sixty twelve (6012) days before months following the occurrence of such Change of Control or one hundred eighty (180) days after the Change of Control Control, or (ii) Executive terminates his employment due to Good Reason by delivery there is a material diminution of a notice to Executive’s responsibilities with the Company or the resulting or surviving entity in a Change of Control, or a material change in the Executive’s reporting responsibilities or title, in each case without Executive’s consent and within one hundred eighty twelve (18012) days after months following the occurrence of such Change of Control setting forth (which diminution or change the conditions that parties hereby agree shall constitute Good Reason, then Executive will be entitled to the benefits provided in this Section 4.5 in lieu of any benefits otherwise payable under Sections 4.3, 4.4 or 4.6; provided that Executive shall not be entitled to such benefits if such a constructive termination is due to Executive’s death or Disability. As used in this paragraph, Good Reason means, without Executive’s express written consent, the occurrence of any of the following conditions: (i) a material reduction in Executive’s base compensation; (ii) a material diminution in Executive’s authority, duties, or responsibilities; or (iii) a relocation of Executive’s primary employment duties by more than 50 mileswithout Cause), then (A) the Company shall pay Executive all base salary due and owing and all other accrued but unpaid benefits (e.g., accrued vacation) through the last day actually worked, (B) within ten (10) days of the termination of Executive’s employment, the Company shall pay to Executive, in a single lump-sum payment, subject to standard deductions and withholdings, an amount equal to one and forty-nine one hundredths (1.49) times the sum of his then-current base salary and the Target Bonus as severance, and (C) within ten (10) days of the termination of Executive’s employment, the Company shall pay to Executive, in a single lump-sum payment, subject to standard deductions and withholdings, an amount equal to one and one-half (1.50) times the sum of his then-current base salary and the Target Bonus as consideration for Executive’s obligations under Sections 6 and 7; provided, however, that such payments and benefits are conditioned on Executive’s execution and non-revocation of a release agreement, the form of which is attached hereto as Exhibit C, and thereafter the Company’s or the resulting or surviving entity’s obligations under this Agreement shall terminate. The parties’ obligations under this Section 4.6 shall survive the expiration of this Agreement for a period of twelve (12) months and ten (10) days following the occurrence of any such condition shall not constitute Good Reason unless Executive provides notice to the Company of the existence of such condition not later than the earlier to occur of (A) 90 days after the initial existence of such condition and (B) 180 days after the date of the a Change of Control, and the Company shall have failed to remedy such condition within 30 days after receipt of such notice. In the event Executive becomes eligible for benefits under this Section 4.5, Executive will receive (i) any benefits to which Executive is entitled pursuant to and in accordance with the terms of any plan of the Company then in effect and any existing contract between Executive and the Company, and (ii) the following benefits, conditioned upon Executive signing a release of claims in a form reasonably satisfactory to the Company not later than twenty-one (21) calendar days after the date of Executive’s termination:
(a) Executive’s unvested equity awards will immediately vest and become exercisable; and
(b) a lump sum payment in an amount equal to Executive’s Cash Compensation received by Executive from the Company for the two (2) most recent taxable years ending before the date upon which the Change of Control occurred, payable upon the latest of (i) thirty (30) calendar days from the date Executive’s employment terminates, (ii) thirty (30) calendar days from the date of the Change of Control or (iii) the expiration of any applicable revocation period under the release, but in no event later than March 15th of the year following the year in which the termination of employment occurs. As used in this paragraph, Cash Compensation means Executive’s Base Salary and Performance Award payment, in each case including any amounts deferred in the Company’s 401(k) plan and deferred compensation plan. Notwithstanding any other provision of this Agreement, if any payment or benefit Executive would receive pursuant to a Change of Control of the Company (each a “Payment” and collectively the “Payments”) could constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company shall reduce the Payments so that the maximum amount of the Payments shall be One Dollar ($1.00) less than the amount that would cause the Payments to be subject to the excise tax imposed by Section 4999 of the Code. If a reduction in Payments is necessary under Section 4.5, reduction shall occur in the following order unless Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the Payment occurs): reduction of cash payments and then cancellation of accelerated vesting of equity awards. A nationally recognized, independent accounting firm selected by the Company shall perform the calculations required by this Agreement. The Company shall bear all reasonable expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with supporting documentation, to the Company and Executive promptly after the date on which Executive’s right to a Payment is triggered (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company, including a reasonable time prior to the Payment trigger date. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Executive and the Company.
Appears in 1 contract
Termination Following Change of Control. If (a) In the event that, within two (2) years following a Change of Control occurs during the term of this Agreement and Control, either (i) the Company (or its successor) terminates the Executive’s employment is terminated by the Company for a reason other than without Cause within sixty (60) days before the Change of Control or one hundred eighty (180) days after the Change of Control or (ii) the Executive terminates his employment due to Good Reason by delivery of a notice to the Company within one hundred eighty (180) days after the Change of Control setting forth the conditions that constitute for Good Reason, then Executive will be entitled to the benefits provided in this Section 4.5 in lieu of any benefits otherwise payable under Sections 4.3, 4.4 or 4.6; provided that Executive shall not be entitled to such benefits if such termination is due to Executive’s death or Disability. As used in this paragraph, Good Reason means, without Executive’s express written consent, the occurrence of any of the following conditions: (i) a material reduction in Executive’s base compensation; (ii) a material diminution in Executive’s authority, duties, or responsibilities; or (iii) a relocation of Executive’s primary employment duties by more than 50 miles; provided, however, that the occurrence of any such condition shall not constitute Good Reason unless Executive provides notice to the Company of the existence of such condition not later than the earlier to occur of (A) any unvested Company stock options then held by the Executive shall immediately vest in full and shall remain exercisable for 90 days after the initial existence of following such condition and termination, (B) 180 days after subject to the date Executive’s execution of the Change Release and the Severance Agreement and to the provisions of ControlSection 3(c) below, and the Company shall have failed pay the Executive in one lump sum payment an amount equal to remedy such condition within 30 days after receipt one-half times his then-current Annual Base Salary plus one times the bonus earned by the Executive in respect of the immediately preceding calendar year (or, if the Company’s Compensation Committee has not yet made a determination regarding the amount of such notice. In bonus, one times 60% of the event Executive’s target bonus for such year), and (C) the Executive becomes and his family members will be eligible for benefits under this Section 4.5, Executive will receive (i) any benefits to which Executive is entitled pursuant to and continue his group health insurance coverage in accordance with the terms of any plan of the Company then in effect and any existing contract between Executive and the Company, and (ii) the following benefits, conditioned upon Executive signing a release of claims in a form reasonably satisfactory to the Company not later than twenty-one (21) calendar days after the date of Executive’s termination:
(a) Executive’s unvested equity awards will immediately vest and become exercisable; andfederal COBRA law.
(b) a lump sum payment in an amount equal to Should the Executive or any of his family members elect COBRA continuation coverage during the six-month period immediately following the Executive’s Cash Compensation received by Executive from termination pursuant to Section 3(a) hereof, the Company shall be responsible for paying the two (2) most recent taxable years ending before difference between the cost of COBRA continuation coverage and the premium contribution amount applicable to the Executive as of the date upon which of such termination of employment, subject to any applicable carrier and Company rate adjustments. After such six-month period ends, if Executive or any of his family members elect to continue COBRA coverage, he will be responsible for all of the Change premium payments. Information about Executive’s rights under COBRA and forms for electing continuation coverage will be provided to Executive by a separate letter on or about the date of Control occurredsuch termination of employment.
(c) Notwithstanding anything herein to the contrary, payable upon the latest of (i) thirty (30) calendar days from the date Executive’s employment terminates, (ii) thirty (30) calendar days from the date of the Change of Control or (iii) the expiration of any applicable revocation period under the release, but in no event later than March 15th of the year following the year in which the termination of employment occurs. As used in this paragraph, Cash Compensation means Executive’s Base Salary and Performance Award payment, in each case including any amounts deferred in the Company’s 401(k) plan and deferred event that the compensation plan. Notwithstanding any other provision of this Agreement, if any payable to the Executive hereunder would constitute an excess parachute payment or benefit Executive would receive pursuant to a Change of Control of the Company (each a “Payment” and collectively the “Payments”) could constitute a “parachute payment” within the meaning of as defined in Section 280G of the Internal Revenue Code, the Executive shall have the right to reduce such compensation to an amount that would avoid the application of said Section 280G and (ii) to the extent that the Company in good faith determines that amounts that are or may become payable to the Executive upon termination of employment hereunder are required to be suspended or delayed for a period of six months in order to satisfy the requirements of Internal Revenue Code of 1986, as amended (the “Code”)Section 409A, then the Company shall reduce so advise the Payments so that the maximum amount of the Payments Executive, and any such payments shall be One Dollar ($1.00) less than the amount that would cause the Payments to suspended and accrued for six months, whereupon said payments shall be subject paid to the excise tax imposed by Section 4999 of Executive in a lump sum.
(d) All payments to the Code. If a reduction in Payments is necessary under Section 4.5, reduction shall occur in the following order unless Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the date on deduction of any taxes which the event that triggers the Payment occurs): reduction of cash payments and then cancellation of accelerated vesting of equity awards. A nationally recognized, independent accounting firm selected by the Company shall perform the calculations required by this Agreement. The Company shall bear all reasonable expenses with respect to the determinations by such accounting firm are required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together withheld with supporting documentation, to the Company respect thereto under applicable federal and Executive promptly after the date on which Executive’s right to a Payment is triggered (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company, including a reasonable time prior to the Payment trigger date. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Executive and the Companystate laws.
Appears in 1 contract
Termination Following Change of Control. If a Change of Control occurs during In the term of this Agreement and either event that (i) the Company or the resulting or surviving entity in a Change in Control (as defined in the Stock Option Plan) or Corporate Transaction (as defined in the Stock Option Plan) (Change in Control and Corporate Transaction collectively referred to herein as “Change of Control”) terminates Executive’s employment is terminated by the Company for a reason other than without Cause within sixty twelve (6012) days before months following the occurrence of such Change of Control or one hundred eighty (180) days after the Change of Control Control, or (ii) Executive terminates his employment due to Good Reason by delivery there is a material diminution of a notice to Executive’s responsibilities with the Company or the resulting or surviving entity in a Change of Control, or a material change in the Executive’s reporting responsibilities or title, in each case without Executive’s consent and within one hundred eighty twelve (18012) days after months following the occurrence of such Change of Control setting forth (which diminution or change the conditions that parties hereby agree shall constitute Good Reason, then Executive will be entitled to the benefits provided in this Section 4.5 in lieu of any benefits otherwise payable under Sections 4.3, 4.4 or 4.6; provided that Executive shall not be entitled to such benefits if such a constructive termination is due to Executive’s death or Disability. As used in this paragraph, Good Reason means, without Executive’s express written consent, the occurrence of any of the following conditions: (i) a material reduction in Executive’s base compensation; (ii) a material diminution in Executive’s authority, duties, or responsibilities; or (iii) a relocation of Executive’s primary employment duties by more than 50 mileswithout Cause), then (A) the Company shall pay Executive all base salary due and owing and all other accrued but unpaid benefits (e.g., accrued vacation) through the last day actually worked, and (B) within ten (10) days of the termination of Executive’s employment, the Company shall pay to Executive, in a single lump-sum payment, subject to standard deductions and withholdings, an amount equal to two and ninety-nine one hundredths (2.99) times the sum of his then-current base salary and the Target Bonus as severance; provided, however, that such payments and benefits are conditioned on Executive’s execution and non-revocation of a release agreement, the form of which is attached hereto as Exhibit B, and thereafter the Company’s or the resulting or surviving entity’s obligations under this Agreement shall terminate. The parties’ obligations under this Section 4.6 shall survive the expiration of this Agreement for a period of twelve (12) months and ten (10) days following the occurrence of any such condition shall not constitute Good Reason unless Executive provides notice to the Company of the existence of such condition not later than the earlier to occur of (A) 90 days after the initial existence of such condition and (B) 180 days after the date of the a Change of Control, and the Company shall have failed to remedy such condition within 30 days after receipt of such notice. In the event Executive becomes eligible for benefits under this Section 4.5, Executive will receive (i) any benefits to which Executive is entitled pursuant to and in accordance with the terms of any plan of the Company then in effect and any existing contract between Executive and the Company, and (ii) the following benefits, conditioned upon Executive signing a release of claims in a form reasonably satisfactory to the Company not later than twenty-one (21) calendar days after the date of Executive’s termination:
(a) Executive’s unvested equity awards will immediately vest and become exercisable; and
(b) a lump sum payment in an amount equal to Executive’s Cash Compensation received by Executive from the Company for the two (2) most recent taxable years ending before the date upon which the Change of Control occurred, payable upon the latest of (i) thirty (30) calendar days from the date Executive’s employment terminates, (ii) thirty (30) calendar days from the date of the Change of Control or (iii) the expiration of any applicable revocation period under the release, but in no event later than March 15th of the year following the year in which the termination of employment occurs. As used in this paragraph, Cash Compensation means Executive’s Base Salary and Performance Award payment, in each case including any amounts deferred in the Company’s 401(k) plan and deferred compensation plan. Notwithstanding any other provision of this Agreement, if any payment or benefit Executive would receive pursuant to a Change of Control of the Company (each a “Payment” and collectively the “Payments”) could constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company shall reduce the Payments so that the maximum amount of the Payments shall be One Dollar ($1.00) less than the amount that would cause the Payments to be subject to the excise tax imposed by Section 4999 of the Code. If a reduction in Payments is necessary under Section 4.5, reduction shall occur in the following order unless Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the Payment occurs): reduction of cash payments and then cancellation of accelerated vesting of equity awards. A nationally recognized, independent accounting firm selected by the Company shall perform the calculations required by this Agreement. The Company shall bear all reasonable expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with supporting documentation, to the Company and Executive promptly after the date on which Executive’s right to a Payment is triggered (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company, including a reasonable time prior to the Payment trigger date. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Executive and the Company.
Appears in 1 contract
Termination Following Change of Control. If there is a Change “change of Control occurs during control” (as defined in the term Concurrent Computer Corporation 2011 Stock Incentive Plan), and within one year after such “change of this Agreement and either (i) Executivecontrol” the Employee’s employment is terminated by the Company for a reason (other than for Due Cause, death or Continuing Disability), or within three months after a “change of control”, the Employee has a constructive termination of employment without Due Cause within sixty (60) days before the Change of Control or one hundred eighty (180) days after the Change of Control or (ii) Executive terminates his employment due pursuant to Good Reason by delivery of Section 4.6 below, subject to executing a notice release in a form acceptable to the Company within one hundred eighty (180) days after and such release becoming irrevocable, the Change of Control setting forth the conditions that constitute Good Reason, then Executive Employee will be entitled to receive (a) salary continuation payments for a period of 12 months from the benefits provided date of such termination, at the salary in this effect, pursuant to Section 4.5 in lieu of any benefits otherwise payable under Sections 4.33.1 above, 4.4 or 4.6; provided that Executive shall not be entitled immediately prior to such benefits termination, (b) the amount, if such any, paid as an annual bonus in the year preceding the Employee’s termination is due to Executive’s death or Disability. As used in this paragraphof employment, Good Reason means, without Executive’s express written consent, the occurrence of any of the following conditions: (i) a material reduction in Executive’s base compensation; (ii) a material diminution in Executive’s authority, duties, or responsibilities; or (iii) a relocation of Executive’s primary employment duties by more than 50 miles; provided, however, that the occurrence of any such condition shall not constitute Good Reason unless Executive provides notice to the Company of the existence of such condition not later than the earlier to occur of (A) 90 days after the initial existence of such condition and (Bc) 180 days COBRA continuation coverage under the Company’s Health Plan for Employee and his eligible dependents who were covered under the Health Plan at the time of his termination, but during the 12 month period following Employee’s termination, Employee shall be eligible to continue such coverage at the same premium charged to active employees during such period. The salary continuation payments pursuant to Section 4.5(a) and (b) above shall be made in substantially equal installments on each regularly scheduled Pay Date, beginning with the first Pay Date following the thirtieth (30th) day after the date of the Change of ControlEmployee’s Separation from Service, and the Company shall have failed to remedy such condition within 30 days after receipt of such notice. In the event Executive becomes eligible for benefits under this Section 4.5, Executive will receive (i) any benefits to which Executive is entitled pursuant to and in accordance but with the terms of any plan of the Company then in effect and any existing contract between Executive and the Company, and (ii) the following benefits, conditioned upon Executive signing a release of claims in a form reasonably satisfactory to the Company not later than twenty-one (21) calendar days after the date of Executive’s termination:
(a) Executive’s unvested equity awards will immediately vest and become exercisable; and
(b) first payment being a lump sum payment in an amount equal to Executive’s Cash Compensation received by Executive from the Company for the two (2) most recent taxable years ending before the date upon which the Change of Control occurred, payable upon the latest of (i) thirty (30) calendar days from the date Executive’s employment terminates, (ii) thirty (30) calendar days covering all payment periods from the date of the Change Employee’s Separation from Service through the date of Control or (iii) such first payment. To the expiration of any applicable revocation period under the releaseextent applicable, but in no event later than March 15th of the year following the year in which the termination of employment occurs. As used in this paragraph, Cash Compensation means Executive’s Base Salary and Performance Award payment, in each case including any amounts deferred in the Company’s 401(k) plan and deferred compensation plan. Notwithstanding any other provision of this Agreement, if any payment or benefit Executive would receive pursuant to a Change of Control of the Company (each a “Payment” and collectively the “Payments”) could constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company such payments shall reduce the Payments so that the maximum amount of the Payments shall be One Dollar ($1.00) less than the amount that would cause the Payments to be subject to the excise tax imposed by Section 4999 of the Code. If a reduction in Payments is necessary under Section 4.5, reduction shall occur payment restrictions set forth in the following order unless Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the Payment occurs): reduction third paragraph of cash payments and then cancellation of accelerated vesting of equity awards. A nationally recognized, independent accounting firm selected by the Company shall perform the calculations required by this Agreement. The Company shall bear all reasonable expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with supporting documentation, to the Company and Executive promptly after the date on which Executive’s right to a Payment is triggered (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company, including a reasonable time prior to the Payment trigger date. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Executive and the CompanySection 4.4.
Appears in 1 contract
Termination Following Change of Control. If this Agreement is terminated (or not renewed) (i) by the Company without Cause, or (ii) by Executive for Good Reason during the twelve (12) month period immediately following a Change of Control Control, and such termination (or nonrenewal) occurs during the term of this Agreement and either (i) Executive’s employment is terminated by the Company for following a reason other than Cause within sixty (60) days before the Change of Control or one hundred eighty Control, Executive shall be entitled to receive his full Base Salary through the Date of Termination, the welfare benefits described in Section 3.2 for the Benefit Period and, not later than thirty (18030) days after the Change Date of Control Termination, the Stay Bonus specified in Section 3.1(d) above and a lump sum severance payment equal to the product of two (2) times the sum of Executive’s then current Base Salary plus the arithmetic average of payments made to Executive pursuant to the Company’s Executive Bonus Compensation Program with respect to the three (3) fiscal years immediately preceding the fiscal year in which the Date of Termination occurs, provided; however, that (i) if the Executive’s Date of Termination is prior to the first anniversary of the Closing Date, the bonus payment to Executive in connection with the severance payment shall be Four Hundred Thousand Dollars ($400,000), or (ii) Executive terminates his employment due to Good Reason by delivery if the Executive’s Date of a notice Termination is after the first anniversary of the Closing Date but prior to the third anniversary of the Closing Date, the bonus payment to Executive in connection with the severance payment shall be the arithmetic average of the annual bonus payments made to Executive for the fiscal year(s) in which Executive was employed as President and Chief Operating Officer by the Company. In addition, to the extent not otherwise required under the Company’s Stock Option Plan or any award agreement with Executive, any unvested stock Restricted Stock Units and/or option awards theretofore awarded to Executive shall vest and become immediately exercisable in full. In the event this Agreement is terminated (or not renewed) for any reason other than (i) by the Company within one hundred eighty without Cause, or (180ii) days after the Change of Control setting forth the conditions that constitute by Executive for Good Reason, then Executive will be entitled to the benefits provided in this Section 4.5 in lieu and such termination (or nonrenewal) occurs following a Change of any benefits otherwise payable under Sections 4.3Control, 4.4 or 4.6; provided that Executive shall not be entitled to such benefits if such termination is due to Executive’s death or Disability. As used in this paragraph, Good Reason means, without Executive’s express written consent, the occurrence continuation of any of the following conditions: (i) a material reduction in Executive’s base compensation; (ii) a material diminution in Executive’s authority, dutiesbonuses or benefits provided hereunder, or responsibilities; or (iii) a relocation of Executive’s primary employment duties by more than 50 miles; provided, however, that the occurrence of any such condition shall not constitute Good Reason unless Executive provides notice to the Company of the existence of such condition not later than the earlier to occur of (A) 90 days after the initial existence of such condition and (B) 180 days after the date of the Change of Control, and the Company shall have failed to remedy such condition within 30 days after receipt of such notice. In the event Executive becomes eligible for benefits under this Section 4.5, Executive will receive (i) any benefits to which Executive is entitled pursuant to and in accordance with the terms of any plan of the Company then in effect and any existing contract between Executive and the Company, and (ii) the following benefits, conditioned upon Executive signing a release of claims in a form reasonably satisfactory to the Company not later than twenty-one (21) calendar days after the date of Executive’s termination:
(a) Executive’s unvested equity awards will immediately vest and become exercisable; and
(b) a lump sum payment in an amount equal to Executive’s Cash Compensation received by Executive from the Company for the two (2) most recent taxable years ending before the date upon which the Change of Control occurred, payable upon the latest of (i) thirty (30) calendar days from the date Executive’s employment terminates, (ii) thirty (30) calendar days from the date of the Change of Control or (iii) the expiration of any applicable revocation period under the release, but in no event later than March 15th of the year other payments following the year in which the termination Date of employment occurs. As used in this paragraphTermination, Cash Compensation means Executive’s other than Base Salary and Performance Award payment, in each case including any amounts deferred in earned through the Company’s 401(k) plan and deferred compensation plan. Notwithstanding any other provision Date of this Agreement, if any payment or benefit Executive would receive pursuant to a Change of Control of the Company (each a “Payment” and collectively the “Payments”) could constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company shall reduce the Payments so that the maximum amount of the Payments shall be One Dollar ($1.00) less than the amount that would cause the Payments to be subject to the excise tax imposed by Section 4999 of the Code. If a reduction in Payments is necessary under Section 4.5, reduction shall occur in the following order unless Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the Payment occurs): reduction of cash payments and then cancellation of accelerated vesting of equity awards. A nationally recognized, independent accounting firm selected by the Company shall perform the calculations required by this Agreement. The Company shall bear all reasonable expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with supporting documentation, to the Company and Executive promptly after the date on which Executive’s right to a Payment is triggered (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company, including a reasonable time prior to the Payment trigger date. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Executive and the CompanyTermination.
Appears in 1 contract
Sources: Employment Agreement (Curative Health Services Inc)
Termination Following Change of Control. If (a) Subject to 3 (c) below, in the event that, within one (1) year following a Change of Control occurs during the term of this Agreement and Control, either (i) Executive’s employment is terminated by the Company for a reason other than (or its successor) terminates the Executive's employment without Cause within sixty (60) days before the Change of Control or one hundred eighty (180) days after the Change of Control or (ii) the Executive terminates his Executive's employment due to Good Reason by delivery of a notice to the Company within one hundred eighty (180) days after the Change of Control setting forth the conditions that constitute for Good Reason, then Executive will be entitled to the benefits provided in this Section 4.5 in lieu of any benefits otherwise payable under Sections 4.3, 4.4 or 4.6; provided that Executive shall not be entitled to such benefits if such termination is due to Executive’s death or Disability. As used in this paragraph, Good Reason means, without Executive’s express written consent, the occurrence of any of the following conditions: (i) a material reduction in Executive’s base compensation; (ii) a material diminution in Executive’s authority, duties, or responsibilities; or (iii) a relocation of Executive’s primary employment duties by more than 50 miles; provided, however, that the occurrence of any such condition shall not constitute Good Reason unless Executive provides notice to the Company of the existence of such condition not later than the earlier to occur of (A) any unvested Company stock options then held by the Executive shall immediately vest in full and shall remain exercisable for 90 days after following the initial existence effective date of such condition and termination, (B) 180 days after subject to the date Executive's execution of the Change Release and to the provisions of ControlSection 3(c) below, and the Company shall have failed pay the Executive in one lump sum payment an amount equal to remedy such condition within 30 days after receipt of such notice. In the event Executive becomes eligible for benefits under this Section 4.5, Executive will receive (i) any benefits to which Executive is entitled pursuant to and in accordance with the terms of any plan twenty-four months of the Company Executive's then in effect and any existing contract between Executive and the Company, and (ii) the following benefits, conditioned upon Executive signing a release of claims in a form reasonably satisfactory to the Company not later than twenty-one (21) calendar days after the date of Executive’s termination:
(a) Executive’s unvested equity awards will immediately vest and become exercisable; andcurrent Annual Base Salary.
(b) a lump sum payment in an amount equal Additionally, should the Executive or any of Executive's family members elect COBRA continuation coverage during the twenty-four month period immediately following the Executive's termination pursuant to Executive’s Cash Compensation received by Executive from Section 3(a) hereof, the Company shall be responsible for paying the two (2) most recent taxable years ending before difference between the date upon which cost of COBRA continuation coverage and the Change premium contribution amount applicable to the Executive as of Control occurred, payable upon the latest of (i) thirty (30) calendar days from the date Executive’s employment terminates, (ii) thirty (30) calendar days from the effective date of the Change such termination of Control or (iii) the expiration of employment, subject to any applicable revocation carrier and Company rate adjustments. After such twenty-four month period under the releaseends, but in no event later than March 15th if Executive or any of Executive's family members elect to continue COBRA coverage, Executive will be responsible for all of the year following premium payments. Information about Executive's rights under COBRA and forms for electing continuation coverage will be provided to Executive by a separate letter on or about the year in which the effective date of termination of employment.
(c) In the event the Executive is party to a written executive employment occursagreement ("EEA") with the Company and the Executive's employment with the Company is terminated pursuant to 3(a) above, then the Executive, at the Executive's option, shall be entitled to receive the benefits set forth in the EEA, IN LIEU OF the severance benefits set forth in 3(a) and 3(b) above. As used in this paragraph, Cash Compensation means Executive’s Base Salary and Performance Award paymentFor the avoidance of doubt, in each case including any amounts deferred the event the Executive opts to receive the severance benefits set forth under an EEA, such benefits shall be in the Company’s 401(kLIEU OF AND NOT ADDITIONAL TO severance benefits set forth in Sections 3(a) plan and deferred compensation plan. Notwithstanding any other provision 3(b) of this Agreement, if any payment or benefit Executive would receive pursuant to a Change of Control of the Company (each a “Payment” and collectively the “Payments”) could constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company shall reduce the Payments so that the maximum amount of the Payments shall be One Dollar ($1.00) less than the amount that would cause the Payments to be subject to the excise tax imposed by Section 4999 of the Code. If a reduction in Payments is necessary under Section 4.5, reduction shall occur in the following order unless Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the Payment occurs): reduction of cash payments and then cancellation of accelerated vesting of equity awards. A nationally recognized, independent accounting firm selected by the Company shall perform the calculations required by this Agreement. The Company shall bear all reasonable expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with supporting documentation, to the Company and Executive promptly after the date on which Executive’s right to a Payment is triggered (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company, including a reasonable time prior to the Payment trigger date. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Executive and the Company.
Appears in 1 contract
Termination Following Change of Control. Section 4.5 of the Agreement is hereby amended by deleting in its entirety the first sentence of the second paragraph thereof and substituting the following in lieu thereof:
(a) If there is a Change “change of Control occurs during control” (as defined in the term Concurrent Computer Corporation 2011 Stock Incentive Plan), and within one year after such “change of this Agreement and either (i) Executivecontrol,” the Employee’s employment is terminated by the Company for a reason (other than Cause within sixty (60) days before the Change of Control for Due Cause, death or one hundred eighty (180) days after the Change of Control or (ii) Executive terminates his employment due Continuing Disability), subject to Good Reason by delivery of executing a notice release in a form acceptable to the Company within one hundred eighty (180) days after and such release becoming irrevocable, the Change of Control setting forth the conditions that constitute Good Reason, then Executive Employee will be entitled to (i) salary continuation payments for a period of 12 months from the benefits provided date of such termination, at a salary in this effect, pursuant to Section 4.5 3.1 above, immediately prior to such termination, (ii) the amount, if any, paid as an annual bonus in lieu the year preceding the Employee’s termination of any benefits otherwise payable employment, and (iii) COBRA continuation coverage under Sections 4.3the Company’s Health Plan for Employee and his eligible dependents who were covered under the Health Plan at the time of his termination, 4.4 or 4.6; provided that Executive but during the 12-month period following Employee’s termination, Employee shall not be eligible to continue such coverage at the same premium charged to active employees during such period.
(b) If there is a “change of control” (as defined in the Concurrent Computer Corporation 2011 Stock Incentive Plan), and within one year after such “change of control,” the Employee has a constructive termination of employment without Due Cause pursuant to Section 4.6 below, subject to executing a release in a form acceptable to the Company and such release becoming irrevocable, the Employee will be entitled to such benefits if such termination is due to Executive’s death or Disability. As used in this paragraph, Good Reason means, without Executive’s express written consent, the occurrence of any of the following conditions: (i) salary continuation payments for a material reduction in Executive’s base compensation; (ii) a material diminution in Executive’s authority, duties, or responsibilities; or (iii) a relocation of Executive’s primary employment duties by more than 50 miles; provided, however, that the occurrence of any such condition shall not constitute Good Reason unless Executive provides notice to the Company of the existence of such condition not later than the earlier to occur period of (A) 90 days after 9 months in the initial existence event that Employee provides written notice of such condition and a constructive termination to the Company prior to the filing of the Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2018, or (B) 180 days 12 months in the event that Employee provides written notice of a constructive termination to the Company at any time during the period commencing on the day following the filing of the Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2018 and ending on December 31, 2018, in either instance at a salary in effect, pursuant to Section 3.1 above, immediately prior to providing such notice, (ii) the amount, if any, paid as an annual bonus in the year preceding the Employee’s termination of employment, and (iii) COBRA continuation coverage under the Company’s Health Plan for Employee and his eligible dependents who were covered under the Health Plan at the time of his termination, but during the 9-month or 12-month period following Employee’s termination as the case may be, Employee shall be eligible to continue such coverage at the same premium charged to active employees during such period.
(c) The salary continuation payments pursuant to Section 4.5(a) and (b) above, shall be made in substantially equal installment payments on each regularly scheduled Pay Date, beginning with the first Pay Date following the thirtieth (30th) day after the date of the Change of ControlEmployee’s Separation from Service, and the Company shall have failed to remedy such condition within 30 days after receipt of such notice. In the event Executive becomes eligible for benefits under this Section 4.5, Executive will receive (i) any benefits to which Executive is entitled pursuant to and in accordance but with the terms of any plan of the Company then in effect and any existing contract between Executive and the Company, and (ii) the following benefits, conditioned upon Executive signing a release of claims in a form reasonably satisfactory to the Company not later than twenty-one (21) calendar days after the date of Executive’s termination:
(a) Executive’s unvested equity awards will immediately vest and become exercisable; and
(b) first payment being a lump sum payment in an amount equal to Executive’s Cash Compensation received by Executive from the Company for the two (2) most recent taxable years ending before the date upon which the Change of Control occurred, payable upon the latest of (i) thirty (30) calendar days from the date Executive’s employment terminates, (ii) thirty (30) calendar days covering all payments periods from the date of the Change Employee’s Separation from Service through the date of Control or (iii) such first payment. To the expiration of any applicable revocation period under the releaseextent applicable, but in no event later than March 15th of the year following the year in which the termination of employment occurs. As used in this paragraph, Cash Compensation means Executive’s Base Salary and Performance Award payment, in each case including any amounts deferred in the Company’s 401(k) plan and deferred compensation plan. Notwithstanding any other provision of this Agreement, if any payment or benefit Executive would receive pursuant to a Change of Control of the Company (each a “Payment” and collectively the “Payments”) could constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company such payments shall reduce the Payments so that the maximum amount of the Payments shall be One Dollar ($1.00) less than the amount that would cause the Payments to be subject to the excise tax imposed by Section 4999 of the Code. If a reduction in Payments is necessary under Section 4.5, reduction shall occur payment restrictions set forth in the following order unless Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the Payment occurs): reduction third paragraph of cash payments and then cancellation of accelerated vesting of equity awards. A nationally recognized, independent accounting firm selected by the Company shall perform the calculations required by this Agreement. The Company shall bear all reasonable expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with supporting documentation, to the Company and Executive promptly after the date on which Executive’s right to a Payment is triggered (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company, including a reasonable time prior to the Payment trigger date. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Executive and the CompanySection 4.4.”
Appears in 1 contract
Termination Following Change of Control. If (i) during the one-year period following a Change of Control, the Executive incurs a Separation from Service by reason of (1) the Company’s termination of the Executive’s employment other than for Cause, death or Disability or (2) the Executive’s resignation from employment for Good Reason, or (ii) during the six-month period preceding a Change of Control, the Company terminates the Executive’s employment other than for Cause, death or Disability, in anticipation of a Change of Control occurs during transaction that the term Board is actively considering at the time of this Agreement such termination of employment and either that is ultimately consummated, then:
(i1) Executive’s employment is terminated by the Company for shall pay to the Executive in a reason other than Cause lump sum in cash within sixty (60) days before the Change of Control or one hundred eighty (180) days after the Change date of Control or Separation from Service (iior, in the event any amounts due cannot be determined within this period, as soon thereafter as is practicable in accordance with U.S. Treasury Regulation § 1.409A-3(d), relating to administrative delay) Executive terminates his employment due and subject to Good Reason by delivery the Executive’s execution and non-revocation of a notice General Release and Waiver Agreement, an amount equal to two times the Company within one hundred eighty sum of (180a) days after the Change of Control setting forth the conditions that constitute Good Reason, then Executive will be entitled to the benefits provided in this Section 4.5 in lieu of any benefits otherwise payable under Sections 4.3, 4.4 or 4.6; provided that Executive shall not be entitled to such benefits if such termination is due to Executive’s death or Disability. As used in this paragraph, Good Reason means, without Executive’s express written consent, the occurrence Base Salary as of any of the following conditions: (i) a material reduction in Executive’s base compensation; (ii) a material diminution in Executive’s authority, duties, or responsibilities; or (iii) a relocation of Executive’s primary employment duties by more than 50 miles; provided, however, that the occurrence of any such condition shall not constitute Good Reason unless Executive provides notice to the Company of the existence of such condition not later than the earlier to occur of (A) 90 days after the initial existence of such condition and (B) 180 days after the date of the Change of ControlControl (which, and in the Company shall have failed to remedy such condition within 30 days after receipt case of such notice. In the event termination by Executive becomes eligible for benefits under this Section 4.5, Executive will receive (i) any benefits to which Executive is entitled Good Reason pursuant to and in accordance with clause (1) of Paragraph 7(c) above, shall be the terms of any plan of the Company then Base Salary in effect and any existing contract between Executive and the Company, and (ii) the following benefits, conditioned upon Executive signing a release of claims in a form reasonably satisfactory immediately prior to the Company not later than twenty-one (21reduction in Base Salary giving rise to the right to terminate for Good Reason pursuant to such clause) calendar days after the date of Executive’s termination:
(a) Executive’s unvested equity awards will immediately vest and become exercisable; and
plus (b) a lump sum payment in an amount equal to Executive’s Cash Compensation received by Executive from the Company average of his annual bonuses for the two (2) three most recent taxable completed years ending before the date upon which the Change of Control occurred, payable upon the latest of (ior such shorter period if employed for less than three years) thirty (30) calendar days from the date Executive’s employment terminates, (ii) thirty (30) calendar days from prior to the date of the Change of Control or Executive’s target bonus amount if the Executive’s Separation from Service takes place prior to date on which Executive is eligible to receive his first annual bonus hereunder; provided that, if the Company terminates the Executive’s employment, other than for Cause, death or Disability, in anticipation of a Change of Control transaction that the Board is actively considering, payments shall be made under Paragraph 8(a) above within sixty (iii60) days after the date of Separation from Service and the additional one (1.0) times payment provided for under this Paragraph 8(c)(1) shall be made within sixty (60) days after the date the Change of Control is ultimately consummated;
(2) the expiration Company shall pay to the Executive, to the extent earned but not yet paid, his annual bonus for the year preceding the year in which the date of any applicable revocation period under Separation from Service occurred in an amount determined by the releaseCommittee and subject to the terms and conditions of the Company’s annual bonus or incentive plan as then in effect, payable in a lump sum in cash within sixty (60) days after the date of Separation from Service (or as soon thereafter as is practicable, but in no event even later than the March 15th of the year occurring immediately following the year in which the termination of employment such Separation from Service occurs. As used in this paragraph, Cash Compensation means Executive’s Base Salary and Performance Award payment, in each case including any amounts deferred in the Company’s 401(k) plan and deferred compensation plan. Notwithstanding any other provision of this Agreement, if any payment or benefit Executive would receive pursuant to a Change of Control of the Company (each a “Payment” and collectively the “Payments”) could constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company shall reduce the Payments so that the maximum amount of the Payments shall be One Dollar ($1.00) less than the amount that would cause the Payments to be subject to the excise tax imposed by Section 4999 of the Code. If a reduction in Payments is necessary under Section 4.5, reduction shall occur in the following order unless Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the Payment occurs): reduction of cash payments and then cancellation of accelerated vesting of equity awards. A nationally recognized, independent accounting firm selected by the Company shall perform the calculations required by this Agreement. The Company shall bear all reasonable expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with supporting documentation, to the Company and Executive promptly after the date on which Executive’s right to a Payment is triggered (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company, including a reasonable time prior to the Payment trigger date. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Executive and the Company.;
Appears in 1 contract
Termination Following Change of Control. If (i) during the one-year period following a Change of Control, the Executive incurs a Separation from Service by reason of (1) the Company’s termination of the Executive’s employment other than for Cause, death or Disability or (2) the Executive’s resignation from employment for Good Reason, or (ii) during the six-month period preceding a Change of Control, the Company terminates the Executive’s employment other than for Cause, death or Disability, in anticipation of a Change of Control occurs during transaction that the term Board is actively considering at the time of this Agreement such termination of employment and either that is ultimately consummated, then:
(i1) Executive’s employment is terminated by the Company for shall pay to the Executive in a reason other than Cause lump sum in cash within sixty (60) days before the Change of Control or one hundred eighty (180) days after the Change date of Control or Separation from Service (iior, in the event any amounts due cannot be determined within this period, as soon thereafter as is practicable in accordance with U.S. Treasury Regulation § 1.409A-3(d), relating to administrative delay) Executive terminates his employment due and subject to Good Reason by delivery the Executive’s execution and non-revocation of a notice General Release and Waiver Agreement, an amount equal to two times the Company within one hundred eighty sum of (180a) days after the Change of Control setting forth the conditions that constitute Good Reason, then Executive will be entitled to the benefits provided in this Section 4.5 in lieu of any benefits otherwise payable under Sections 4.3, 4.4 or 4.6; provided that Executive shall not be entitled to such benefits if such termination is due to Executive’s death or Disability. As used in this paragraph, Good Reason means, without Executive’s express written consent, the occurrence Base Salary as of any of the following conditions: (i) a material reduction in Executive’s base compensation; (ii) a material diminution in Executive’s authority, duties, or responsibilities; or (iii) a relocation of Executive’s primary employment duties by more than 50 miles; provided, however, that the occurrence of any such condition shall not constitute Good Reason unless Executive provides notice to the Company of the existence of such condition not later than the earlier to occur of (A) 90 days after the initial existence of such condition and (B) 180 days after the date of the Change of ControlControl (which, and in the Company shall have failed to remedy such condition within 30 days after receipt case of such notice. In the event termination by Executive becomes eligible for benefits under this Section 4.5, Executive will receive (i) any benefits to which Executive is entitled Good Reason pursuant to and in accordance with clause (1) of Paragraph 7(c) above, shall be the terms of any plan of the Company then Base Salary in effect and any existing contract between Executive and the Company, and (ii) the following benefits, conditioned upon Executive signing a release of claims in a form reasonably satisfactory immediately prior to the Company not later than twenty-one (21reduction in Base Salary giving rise to the right to terminate for Good Reason pursuant to such clause) calendar days after the date of Executive’s termination:
(a) Executive’s unvested equity awards will immediately vest and become exercisable; and
plus (b) a lump sum payment in an amount equal to Executive’s Cash Compensation received by Executive from the Company average of her annual bonuses for the two three most recently completed years (2or such shorter period if employed for less than three years) most recent taxable years ending before the date upon which the Change of Control occurred, payable upon the latest of (i) thirty (30) calendar days from the date Executive’s employment terminates, (ii) thirty (30) calendar days from prior to the date of the Change of Control or Executive’s target bonus amount if the Executive’s Separation from Service takes place prior to the date on which Executive is eligible to receive her first annual bonus hereunder; provided that, if the Company terminates the Executive’s employment, other than for Cause, death or Disability, in anticipation of a Change of Control transaction that the Board is actively considering, payments shall be made under Paragraph 8(a) above within sixty (iii60) days after the date of Separation from Service and the additional one (1.0) times payment provided for under this Paragraph 8(d)(1) shall be made within sixty (60) days after the date the Change of Control is ultimately consummated;
(2) the expiration Company shall pay to the Executive, to the extent earned but not yet paid, her annual bonus for the year preceding the year in which the date of any applicable revocation period under Separation from Service occurred in an amount determined by the releaseCommittee and subject to the terms and conditions of the Company’s annual bonus or incentive plan as then in effect, payable in a lump sum in cash within sixty (60) days after the date of Separation from Service (or as soon thereafter as is practicable, but in no event later than the March 15th of the year occurring immediately following the year in which the termination of employment such Separation from Service occurs. As used in this paragraph, Cash Compensation means Executive’s Base Salary and Performance Award payment, in each case including any amounts deferred in the Company’s 401(k);
(3) plan and deferred compensation plan. Notwithstanding any other provision of this Agreement, if any payment or benefit Executive would receive pursuant to a Change of Control of the Company (each a “Payment” and collectively the “Payments”) could constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company shall reduce the Payments so that the maximum amount of the Payments shall be One Dollar ($1.00) less than the amount that would cause the Payments to be subject pay to the excise tax imposed by Section 4999 of Executive a prorated annual bonus for the Code. If year in which termination occurs, payable in a reduction lump sum in Payments is necessary under Section 4.5, reduction shall occur in the following order unless Executive elects in writing a different order cash within sixty (provided, however, that such election shall be subject to Company approval if made on or 60) days after the date of Separation from Service (or as soon thereafter as is practicable, but in no event later than the March 15th occurring immediately following the year in which such Separation from Service occurs) based on which an estimate of Company and individual performance against the event that triggers applicable performance goals for the Payment occurs): reduction period before the date of cash payments and then cancellation of accelerated vesting of equity awards. A nationally recognizedSeparation from Service, independent accounting firm selected as determined by the Company shall perform the calculations required by this Agreement. The Company shall bear all reasonable expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculationsCommittee, together with supporting documentation, to the Company and Executive promptly after the date on which Executive’s right to a Payment is triggered (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company, including a reasonable time prior to the Payment trigger date. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Executive and the Company.terms
Appears in 1 contract
Termination Following Change of Control. If (a) In the event that, within two (2) years following a Change of Control occurs during the term of this Agreement and Control, either (i) the Company (or its successor) terminates the Executive’s employment is terminated by the Company for a reason other than without Cause within sixty (60) days before the Change of Control or one hundred eighty (180) days after the Change of Control or (ii) the Executive terminates his employment due to Good Reason by delivery of a notice to the Company within one hundred eighty (180) days after the Change of Control setting forth the conditions that constitute for Good Reason, then Executive will be entitled to the benefits provided in this Section 4.5 in lieu of any benefits otherwise payable under Sections 4.3, 4.4 or 4.6; provided that Executive shall not be entitled to such benefits if such termination is due to Executive’s death or Disability. As used in this paragraph, Good Reason means, without Executive’s express written consent, the occurrence of any of the following conditions: (i) a material reduction in Executive’s base compensation; (ii) a material diminution in Executive’s authority, duties, or responsibilities; or (iii) a relocation of Executive’s primary employment duties by more than 50 miles; provided, however, that the occurrence of any such condition shall not constitute Good Reason unless Executive provides notice to the Company of the existence of such condition not later than the earlier to occur of (A) any unvested Company stock options then held by the Executive shall immediately vest in full and shall remain exercisable for 90 days after the initial existence of following such condition and termination, (B) 180 days after subject to the date Executive’s execution of the Change Release and the Severance Agreement and to the provisions of ControlSection 3(c) below, and the Company shall have failed pay the Executive in one lump sum payment an amount equal to remedy such condition within 30 days after receipt one times his then-current Annual Base Salary plus one times the bonus earned by the Executive in respect of the immediately preceding calendar year (or, if the Company’s Compensation Committee has not yet made a determination regarding the amount of such notice. In bonus, one times 60% of the event Executive’s target bonus for such year), and (C) the Executive becomes and his family members will be eligible for benefits under this Section 4.5, Executive will receive (i) any benefits to which Executive is entitled pursuant to and continue his group health insurance coverage in accordance with the terms of any plan of the Company then in effect and any existing contract between Executive and the Company, and (ii) the following benefits, conditioned upon Executive signing a release of claims in a form reasonably satisfactory to the Company not later than twenty-one (21) calendar days after the date of Executive’s termination:
(a) Executive’s unvested equity awards will immediately vest and become exercisable; andfederal COBRA law.
(b) a lump sum payment in an amount equal to Should the Executive or any of his family members elect COBRA continuation coverage during the twelve-month period immediately following the Executive’s Cash Compensation received by Executive from termination pursuant to Section 3(a) hereof, the Company shall be responsible for paying the two (2) most recent taxable years ending before difference between the cost of COBRA continuation coverage and the premium contribution amount applicable to the Executive as of the date upon which of such termination of employment, subject to any applicable carrier and Company rate adjustments. After such twelve-month period ends, if Executive or any of his family members elect to continue COBRA coverage, he will be responsible for all of the Change premium payments. Information about Executive’s rights under COBRA and forms for electing continuation coverage will be provided to Executive by a separate letter on or about the date of Control occurredsuch termination of employment.
(c) Notwithstanding anything herein to the contrary, payable upon the latest of (i) thirty (30) calendar days from the date Executive’s employment terminates, (ii) thirty (30) calendar days from the date of the Change of Control or (iii) the expiration of any applicable revocation period under the release, but in no event later than March 15th of the year following the year in which the termination of employment occurs. As used in this paragraph, Cash Compensation means Executive’s Base Salary and Performance Award payment, in each case including any amounts deferred in the Company’s 401(k) plan and deferred event that the compensation plan. Notwithstanding any other provision of this Agreement, if any payable to the Executive hereunder would constitute an excess parachute payment or benefit Executive would receive pursuant to a Change of Control of the Company (each a “Payment” and collectively the “Payments”) could constitute a “parachute payment” within the meaning of as defined in Section 280G of the Internal Revenue Code, the Executive shall have the right to reduce such compensation to an amount that would avoid the application of said Section 280G and (ii) to the extent that the Company in good faith determines that amounts that are or may become payable to the Executive upon termination of employment hereunder are required to be suspended or delayed for a period of six months in order to satisfy the requirements of Internal Revenue Code of 1986, as amended (the “Code”)Section 409A, then the Company shall reduce so advise the Payments so that the maximum amount of the Payments Executive, and any such payments shall be One Dollar ($1.00) less than the amount that would cause the Payments to suspended and accrued for six months, whereupon said payments shall be subject paid to the excise tax imposed by Section 4999 of Executive in a lump sum.
(d) All payments to the Code. If a reduction in Payments is necessary under Section 4.5, reduction shall occur in the following order unless Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the date on deduction of any taxes which the event that triggers the Payment occurs): reduction of cash payments and then cancellation of accelerated vesting of equity awards. A nationally recognized, independent accounting firm selected by the Company shall perform the calculations required by this Agreement. The Company shall bear all reasonable expenses with respect to the determinations by such accounting firm are required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together withheld with supporting documentation, to the Company respect thereto under applicable federal and Executive promptly after the date on which Executive’s right to a Payment is triggered (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company, including a reasonable time prior to the Payment trigger date. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Executive and the Companystate laws.
Appears in 1 contract
Termination Following Change of Control. Section 4.5 of the Agreement is hereby amended by deleting it in its entirety and substituting the following in lieu thereof: “If there is a Change “change of Control occurs during control” (as defined in the term CCUR Holdings, Inc. Amended and Restated 2011 Stock Incentive Plan), and within one year after such “change of this Agreement and either (i) Executivecontrol” the Employee’s employment is terminated by the Company for a reason (other than Cause within sixty (60) days before the Change of Control for Due Cause, death or one hundred eighty (180) days after the Change of Control or (ii) Executive terminates his employment due Continuing Disability), subject to Good Reason by delivery of executing a notice release in a form acceptable to the Company within one hundred eighty (180) days after and such release becoming irrevocable, the Change of Control setting forth the conditions that constitute Good Reason, then Executive Employee will be entitled to receive (a) salary continuation payments for a period of 12 months from the benefits provided date of such termination, at the salary in this effect, pursuant to Section 4.5 in lieu of any benefits otherwise payable under Sections 4.33.1 above, 4.4 or 4.6; provided that Executive shall not be entitled immediately prior to such benefits termination, (b) the amount, if such any, paid as an annual bonus in the year preceding the Employee’s termination is due to Executive’s death or Disability. As used in this paragraphof employment, Good Reason means, without Executive’s express written consent, the occurrence of any of the following conditions: (i) a material reduction in Executive’s base compensation; (ii) a material diminution in Executive’s authority, duties, or responsibilities; or (iii) a relocation of Executive’s primary employment duties by more than 50 miles; provided, however, that the occurrence of any such condition shall not constitute Good Reason unless Executive provides notice to the Company of the existence of such condition not later than the earlier to occur of (A) 90 days after the initial existence of such condition and (Bc) 180 days COBRA continuation coverage under the Company’s Health Plan for Employee and his eligible dependents who were covered under the Health Plan at the time of his termination, but during the 12 month period following Employee’s termination, Employee shall be eligible to continue such coverage at the same premium charged to active employees during such period. The salary continuation payments pursuant to Section 4.5(a) and (b) above shall be made in substantially equal installments on each regularly scheduled Pay Date, beginning with the first Pay Date following the thirtieth (30th) day after the date of the Change of ControlEmployee’s Separation from Service, and the Company shall have failed to remedy such condition within 30 days after receipt of such notice. In the event Executive becomes eligible for benefits under this Section 4.5, Executive will receive (i) any benefits to which Executive is entitled pursuant to and in accordance but with the terms of any plan of the Company then in effect and any existing contract between Executive and the Company, and (ii) the following benefits, conditioned upon Executive signing a release of claims in a form reasonably satisfactory to the Company not later than twenty-one (21) calendar days after the date of Executive’s termination:
(a) Executive’s unvested equity awards will immediately vest and become exercisable; and
(b) first payment being a lump sum payment in an amount equal to Executive’s Cash Compensation received by Executive from the Company for the two (2) most recent taxable years ending before the date upon which the Change of Control occurred, payable upon the latest of (i) thirty (30) calendar days from the date Executive’s employment terminates, (ii) thirty (30) calendar days covering all payment periods from the date of the Change Employee’s Separation from Service through the date of Control or (iii) such first payment. To the expiration of any applicable revocation period under the releaseextent applicable, but in no event later than March 15th of the year following the year in which the termination of employment occurs. As used in this paragraph, Cash Compensation means Executive’s Base Salary and Performance Award payment, in each case including any amounts deferred in the Company’s 401(k) plan and deferred compensation plan. Notwithstanding any other provision of this Agreement, if any payment or benefit Executive would receive pursuant to a Change of Control of the Company (each a “Payment” and collectively the “Payments”) could constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company such payments shall reduce the Payments so that the maximum amount of the Payments shall be One Dollar ($1.00) less than the amount that would cause the Payments to be subject to the excise tax imposed by Section 4999 of the Code. If a reduction in Payments is necessary under Section 4.5, reduction shall occur payment restrictions set forth in the following order unless Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the Payment occurs): reduction third paragraph of cash payments and then cancellation of accelerated vesting of equity awards. A nationally recognized, independent accounting firm selected by the Company shall perform the calculations required by this Agreement. The Company shall bear all reasonable expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with supporting documentation, to the Company and Executive promptly after the date on which Executive’s right to a Payment is triggered (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company, including a reasonable time prior to the Payment trigger date. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Executive and the CompanySection 4.4.”
Appears in 1 contract