Termination of Employment; Change in Control. (a) In the event that your employment with the Company is terminated by reason of your Involuntary Termination, except as otherwise expressly provided in this Section 5, your Stock Option shall be considered fully vested and shall remain exercisable until the third anniversary of the Date of Termination. In the event the Date of Termination occurs (A) on or after the third anniversary of the Grant Date, (B) on or after a Change in Control, or (C) within six months prior to a Change in Control and such Involuntary Termination prior to the Change in Control was requested by a party to, or was otherwise in connection with, the Change in Control, your Stock Option shall be fully vested and shall remain exercisable (to the extent not previously exercised) until the third anniversary of the Date of Termination. In the event that you resign from your employment with the Company without Good Reason and the Date of Termination is prior to the third anniversary of the Grant Date, the vested portion of your Stock Option shall remain exercisable until the end of the 90-day period following the Date of Termination and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated by reason of your death or Disability and the Date of Termination is prior to the third anniversary of the Grant Date, except as otherwise expressly provided in this Section 5, the vested portion of your Stock Option on the Date of Termination shall remain exercisable until the third anniversary of the Date of Termination, and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated for any reason other than your termination for Cause and the Date of Termination is on or following the third anniversary of the Grant Date, your Stock Option shall be fully vested and, except as otherwise expressly provided in this Section 5, shall remain exercisable until the third anniversary of the Date of Termination. Upon termination of your employment by the Company for Cause, the vested and unvested portion of your Stock Option shall be forfeited. (b) In the event of a Change in Control, your Stock Option shall become fully vested immediately prior thereto; provided, however, that the Compensation Committee of the Board (the “Committee”) may elect in its sole discretion prior to a Change in Control not to vest your Stock Option in connection with such Change in Control if (i) it reasonably determines in good faith that not accelerating the unvested portion of your Stock Option is necessary or advisable to consummate the Change in Control, (ii) immediately following the Change in Control you are the Co-President and Chief Financial Officer (or if you are not the Chief Financial Officer, the Chief Financial Officer reports to you) of the surviving corporation in the Change in Control, which surviving corporation is at least comparable in size to the Company immediately prior to the Change in Control and any related transactions, (iii) such surviving corporation has a publicly traded class of common stock and (iv) either (A) the Company is the surviving corporation in the Change in Control or (B) your Stock Option is assumed or replaced by such surviving corporation; provided further that if the Committee so elects not to vest the unvested portion of your Stock Option in connection with a Change in Control, subject to the other terms and conditions of this Award Agreement and your continued employment with the Company on the applicable vesting date, the portion of your Stock Option that is unvested after the date of the Change in Control shall become fully vested on the six-month anniversary of the Change in Control or, if earlier, in accordance with the other, applicable vesting provisions of this Award Agreement. (c) In the event of a transaction described in clause (vii) of the definition of Good Reason in that certain Employment Agreement dated August 23, 2005 by and between the Company and ▇▇▇▇ ▇▇▇▇▇▇▇▇, filed as Exhibit 10.2 to the Company’s Form 8-K filed with the Securities and Exchange Commission on August 25, 2005 (whether or not Yucaipa has a controlling interest within the meaning of such clause), your Stock Option shall become fully vested immediately prior to such transaction. (d) Notwithstanding anything in this Award Agreement or the Employment Agreement to the contrary, in the event of any merger or consolidation of the Company or other transaction following which either the Company is not the surviving corporation or the Common Stock ceases to be publicly traded, the Committee shall provide for: (i) the substitution by the surviving corporation or the Company’s parent corporation for your outstanding Stock Option of stock option(s) on the same terms as your Stock Option, and which preserve(s) the economic value to you of your outstanding Stock Option; or (ii) where all of the holders of the then outstanding Common Stock (other than Yucaipa) receive payment in cash or cash equivalents in consideration for such Common Stock, the cancellation of your Stock Option upon payment to you of a per share amount in cash or cash equivalents equal to (A) the highest price paid for a share of Common Stock in such transaction, minus (B) the exercise price of your Stock Option.
Appears in 2 contracts
Sources: Employment Agreement (Pathmark Stores Inc), Award Agreement (Pathmark Stores Inc)
Termination of Employment; Change in Control. (a) In the event that your employment with the Company is terminated by reason of your Involuntary Termination, except as otherwise expressly provided in this Section 5, your Stock Option shall be considered fully vested and shall remain exercisable until the third anniversary of the Date of Termination. In the event the Date of Termination occurs (A) on or after the third anniversary of the Grant Effective Date, (B) on or after a Change in Control, or (C) within six months prior to a Change in Control and such Involuntary Termination prior to the Change in Control was requested by a party to, or was otherwise in connection with, the Change in Control, your Stock Option shall be fully vested and shall remain exercisable (to the extent not previously exercised) until the third anniversary of the Date of Termination. In the event that you resign from your employment with the Company without Good Reason and the Date of Termination is prior to the third anniversary of the Grant Effective Date, the vested portion of your Stock Option shall remain exercisable until the end of the 90-day period following the Date of Termination and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated by reason of your death or Disability and the Date of Termination is prior to the third anniversary of the Grant Effective Date, except as otherwise expressly provided in this Section 5, the vested portion of your Stock Option on the Date of Termination shall remain exercisable until the third anniversary of the Date of Termination, and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated for any reason other than your termination for Cause and the Date of Termination is on or following the third anniversary of the Grant Effective Date, your Stock Option shall be fully vested and, except as otherwise expressly provided in this Section 5, shall remain exercisable until the third anniversary of the Date of Termination. Upon termination of your employment by the Company for Cause, the vested and unvested portion of your Stock Option shall be forfeited.
(b) In the event of a Change in Control, your Stock Option shall become fully vested immediately prior thereto; provided, however, that the Compensation Committee of the Board (the “Committee”) may elect in its sole discretion prior to a Change in Control not to vest your Stock Option in connection with such Change in Control if (i) it reasonably determines in good faith that not accelerating the unvested portion of your Stock Option is necessary or advisable to consummate the Change in Control, (ii) immediately following the Change in Control you are the Co-President and Chief Financial Marketing and Merchandising Officer (or if you are not the Chief Financial Officer, the Chief Financial Officer reports to you) of the surviving corporation in the Change in Control, which surviving corporation is at least comparable in size to the Company immediately prior to the Change in Control and any related transactions, (iii) such surviving corporation has a publicly traded class of common stock and (iv) either (A) the Company is the surviving corporation in the Change in Control or (B) your Stock Option is assumed or replaced by such surviving corporation; provided further that if the Committee so elects not to vest the unvested portion of your Stock Option in connection with a Change in Control, subject to the other terms and conditions of this Award Agreement and your continued employment with the Company on the applicable vesting date, the portion of your Stock Option that is unvested after the date of the Change in Control shall become fully vested on the six-month anniversary of the Change in Control or, if earlier, in accordance with the other, applicable vesting provisions of this Award Agreement.
(c) In the event of a transaction described in clause (vii) of the definition of Good Reason in that certain the Employment Agreement dated August 23, 2005 by and between the Company and ▇▇▇▇ ▇▇▇▇▇▇▇▇, filed as Exhibit 10.2 to the Company’s Form 8-K filed with the Securities and Exchange Commission on August 25, 2005 (whether or not Yucaipa has a controlling interest within the meaning of such clause), your Stock Option shall become fully vested immediately prior to such transaction.
(d) Notwithstanding anything in this Award Agreement or the Employment Agreement to the contrary, in the event of any merger or consolidation of the Company or other transaction following which either the Company is not the surviving corporation or the Common Stock ceases to be publicly traded, the Committee shall provide for:
(i) the substitution by the surviving corporation or the Company’s parent corporation for your outstanding Stock Option of stock option(s) on the same terms as your Stock Option, and which preserve(s) the economic value to you of your outstanding Stock Option; or
(ii) where all of the holders of the then outstanding Common Stock (other than Yucaipa) receive payment in cash or cash equivalents in consideration for such Common Stock, the cancellation of your Stock Option upon payment to you of a per share amount in cash or cash equivalents equal to (A) the highest price paid for a share of Common Stock in such transaction, minus (B) the exercise price of your Stock Option.
Appears in 2 contracts
Sources: Employment Agreement (Pathmark Stores Inc), Award Agreement (Pathmark Stores Inc)
Termination of Employment; Change in Control. (a) In Notwithstanding the event that your termination of this Agreement or the termination of the Executive’s employment with for any reason, the Company is terminated by reason of your Involuntary Termination, except as otherwise expressly provided in this Section 5, your Stock Option parties shall be considered fully vested and required to carry out any provisions of this Agreement which contemplate performance by them subsequent to such termination. In addition, no termination of this Agreement shall remain exercisable until affect any liability or other obligation of either party which shall have accrued prior to such termination, including, but not limited to, any liability, loss or damage on account of breach. No termination of employment shall terminate the third anniversary obligation of the Date Employer to make payments of Termination. In any vested benefits provided hereunder or the event the Date of Termination occurs (A) on or after the third anniversary obligations of the Grant Date, (B) on or after a Change in Control, or (C) within six months prior to a Change in Control Executive under Sections 7 and such Involuntary Termination prior to the Change in Control was requested by a party to, or was 8 of this Agreement. Unless otherwise in connection with, the Change in Control, your Stock Option shall be fully vested and shall remain exercisable (to the extent not previously exercised) until the third anniversary of the Date of Termination. In the event that you resign from your employment with the Company without Good Reason and the Date of Termination is prior to the third anniversary of the Grant Date, the vested portion of your Stock Option shall remain exercisable until the end of the 90-day period following the Date of Termination and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated by reason of your death or Disability and the Date of Termination is prior to the third anniversary of the Grant Date, except as otherwise expressly provided stated in this Section 5, the vested portion effect of your Stock Option termination on any outstanding incentive awards, stock options, stock appreciation rights, performance units, or other incentives shall be governed by the Date of Termination shall remain exercisable until the third anniversary terms of the Date applicable benefit or incentive plan and/or the agreements governing such incentives.
(a) The Executive’s employment hereunder may be terminated by the Executive upon 30 days written notice to the Employer or at any time by mutual agreement in writing. It shall not constitute a breach of Terminationthis Agreement for the Employer to suspend the Executive’s duties and to place the Executive on a paid leave during the 30-day notice period. If the Executive’s employment is terminated under this Section 5(a), and the unvested portion Employer shall pay the Executive only any sums due to him as Base Salary and/or reimbursement of your Stock Option expenses through the date of termination. Such amounts shall be forfeited. In paid at the event that your employment with the Company is terminated for any reason other than your termination for Cause and the Date of Termination is on or following the third anniversary end of the Grant Date, your Stock Option shall be fully vested and, except as otherwise expressly provided payroll period that follows the payroll period in this Section 5, shall remain exercisable until the third anniversary of the Date of Termination. Upon termination of your which his employment by the Company for Cause, the vested and unvested portion of your Stock Option shall be forfeitedterminates.
(b) In This Agreement shall terminate upon death of the event of a Change in Control, your Stock Option shall become fully vested immediately prior theretoExecutive; provided, however, that in such event the Compensation Committee Employer shall pay to the estate of the Board (Executive the “Committee”) may elect compensation, including Base Salary and accrued but unused paid-time off in its sole discretion prior accordance with Employer’s policies with respect thereto, which otherwise would be payable to a Change the Executive through the date on which his death occurs. Such amounts shall be paid at the end of the payroll period that follows the payroll period in Control not which his employment terminates due to vest your Stock Option in connection with such Change in Control if his death. Additionally, the Employer shall pay to the Executive’s estate (i) it reasonably determines any bonus or other short-term incentive compensation earned, but not yet paid, for any year prior to the year in good faith which his death occurs and (ii) any bonus or other short-term incentive compensation for the year in which his death occurs that not accelerating he would have been eligible to receive if he had lived, multiplied by a fraction, the unvested portion numerator of your Stock Option which is necessary the number of days in the year that precede the date on which his death occurs and the denominator of which is three hundred sixty-five. Any bonus or advisable other short-term incentive compensation payable under this Section 5(b) shall be paid (i) on the date of payment to consummate other employees eligible for bonuses or other short-term incentive compensation under the Change in Controlsame plan or plans, or, (ii) immediately if no date or time frame for payment is specified in those plans, by March 15 of the calendar year following the Change calendar year in Control you are which the Co-President and Chief Financial Officer (or if you are not the Chief Financial Officer, the Chief Financial Officer reports to you) of the surviving corporation in the Change in Control, which surviving corporation compensation is at least comparable in size to the Company immediately prior to the Change in Control and any related transactions, (iii) such surviving corporation has a publicly traded class of common stock and (iv) either (A) the Company is the surviving corporation in the Change in Control or (B) your Stock Option is assumed or replaced by such surviving corporation; provided further that if the Committee so elects not to vest the unvested portion of your Stock Option in connection with a Change in Control, subject to the other terms and conditions of this Award Agreement and your continued employment with the Company on the applicable vesting date, the portion of your Stock Option that is unvested after the date of the Change in Control shall become fully vested on the six-month anniversary of the Change in Control or, if earlier, in accordance with the other, applicable vesting provisions of this Award Agreementearned.
(c) In the event of a transaction described in clause (vii) The Employer may terminate Executive’s employment under this Agreement upon its determination of the definition Disability of Good Reason in that certain Employment Agreement dated August 23the Executive, 2005 which Disability has continued for such period required for the Executive to become eligible to receive long term disability benefits under the Employer’s long-term disability plan or insurance program. “Disability” shall mean as defined by and between Treasury Regulation § 1.409A-3(i)(4). During the Company and ▇▇▇▇ ▇▇▇▇▇▇▇▇, filed as Exhibit 10.2 period of any Disability leading up to the Companytermination of the Executive’s Form 8-K filed employment under this provision, the Employer shall continue to pay the Executive his full Base Salary at the rate then in effect and all perquisites and other benefits (other than any bonus) in accordance with the Securities and Exchange Commission on August 25Employer’s normal payroll practices; provided that, 2005 (whether or not Yucaipa has a controlling interest within the meaning amount of any such clause), your Stock Option shall become fully vested immediately prior to such transaction.
(d) Notwithstanding anything in this Award Agreement or the Employment Agreement payments to the contrary, in Executive shall be reduced by the event of any merger or consolidation sum of the Company amounts, if any, payable to the Executive for the same period under any other disability benefit covering the Executive that is provided by the Employer. Additionally, the Employer shall pay the Executive any bonus or other transaction following which either short-term incentive compensation earned, but not yet paid, through the Company is not the surviving corporation or the Common Stock ceases to be publicly tradeddate of termination, the Committee shall provide for:
(i) the substitution by the surviving corporation or the Company’s parent corporation for your outstanding Stock Option of stock option(s) on the same terms as your Stock Option, and which preserve(s) the economic value to you of your outstanding Stock Option; or
(ii) where all of the holders of the then outstanding Common Stock (other than Yucaipa) receive payment set forth in cash or cash equivalents in consideration for such Common Stock, the cancellation of your Stock Option upon payment to you of a per share amount in cash or cash equivalents equal to (A) the highest price paid for a share of Common Stock in such transaction, minus (B) the exercise price of your Stock OptionSection 5(b).
Appears in 2 contracts
Sources: Employment Agreement (Hampton Roads Bankshares Inc), Employment Agreement (Hampton Roads Bankshares Inc)
Termination of Employment; Change in Control. (a) In Notwithstanding the event that your termination of this Agreement or the termination of the Executive’s employment with for any reason, the Company is terminated by reason of your Involuntary Termination, except as otherwise expressly provided in this Section 5, your Stock Option parties shall be considered fully vested and required to carry out any provisions of this Agreement which contemplate performance by them subsequent to such termination. In addition, no termination of this Agreement shall remain exercisable until affect any liability or other obligation of either party which shall have accrued prior to such termination, including, but not limited to, any liability, loss or damage on account of breach. No termination of employment shall terminate the third anniversary obligation of the Date Employer to make payments of Termination. In any vested benefits provided hereunder or the event the Date of Termination occurs (A) on or after the third anniversary obligations of the Grant Date, (B) on or after a Change in Control, or (C) within six months prior to a Change in Control Executive under Sections 7 and such Involuntary Termination prior to the Change in Control was requested by a party to, or was 8 of this Agreement. Unless otherwise in connection with, the Change in Control, your Stock Option shall be fully vested and shall remain exercisable (to the extent not previously exercised) until the third anniversary of the Date of Termination. In the event that you resign from your employment with the Company without Good Reason and the Date of Termination is prior to the third anniversary of the Grant Date, the vested portion of your Stock Option shall remain exercisable until the end of the 90-day period following the Date of Termination and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated by reason of your death or Disability and the Date of Termination is prior to the third anniversary of the Grant Date, except as otherwise expressly provided stated in this Section 5, the vested portion effect of your Stock Option termination on any outstanding incentive awards, stock options, stock appreciation rights, performance units, or other incentives shall be governed by the Date of Termination shall remain exercisable until the third anniversary terms of the Date applicable benefit or incentive plan and/or the agreements governing such incentives.
(a) The Executive’s employment hereunder may be terminated by the Executive upon 30 days written notice to the Employer or at any time by mutual agreement in writing. It shall not constitute a breach of Terminationthis Agreement for the Employer to suspend the Executive’s duties and to place the Executive on a paid leave during the 30-day notice period. If the Executive’s employment is terminated under this Section 5(a), and the unvested portion Employer shall pay the Executive only any sums due to him as Base Salary and/or reimbursement of your Stock Option expenses through the date of termination. Such amounts shall be forfeited. In paid at the event that your employment with the Company is terminated for any reason other than your termination for Cause and the Date of Termination is on or following the third anniversary end of the Grant Date, your Stock Option shall be fully vested and, except as otherwise expressly provided payroll period that follows the payroll period in this Section 5, shall remain exercisable until the third anniversary of the Date of Termination. Upon termination of your which his employment by the Company for Cause, the vested and unvested portion of your Stock Option shall be forfeitedterminates.
(b) In This Agreement shall terminate upon death of the event of a Change in Control, your Stock Option shall become fully vested immediately prior theretoExecutive; provided, however, that in such event the Compensation Committee Employer shall pay to the estate of the Board (Executive the “Committee”) may elect compensation, including Base Salary and accrued but unused paid-time off in its sole discretion prior accordance with Employer’s policies with respect thereto, which otherwise would be payable to a Change the Executive through the date on which his death occurs. Such amounts shall be paid at the end of the payroll period that follows the payroll period in Control not which his employment terminates due to vest your Stock Option in connection with such Change in Control if his death. Additionally, the Employer shall pay to the Executive’s estate (i) it reasonably determines any bonus or other short-term incentive compensation earned, but not yet paid, for any year prior to the year in good faith which his death occurs and (ii) any bonus or other short-term incentive compensation for the year in which his death occurs that not accelerating he would have been eligible to receive if he had lived, multiplied by a fraction, the unvested portion numerator of your Stock Option which is necessary the number of days in the year that precede the date on which his death occurs and the denominator of which is three hundred sixty-five. Any bonus or advisable other short-term incentive compensation payable under this Section 5(b) shall be paid (i) on the date of payment to consummate other employees eligible for bonuses or other short-term incentive compensation under the Change in Controlsame plan or plans, or, (ii) immediately if no date or time frame for payment is specified in those plans, by March 15 of the calendar year following the Change calendar year in Control you are which the Co-President and Chief Financial Officer (or if you are not the Chief Financial Officer, the Chief Financial Officer reports to you) of the surviving corporation in the Change in Control, which surviving corporation compensation is at least comparable in size to the Company immediately prior to the Change in Control and any related transactions, (iii) such surviving corporation has a publicly traded class of common stock and (iv) either (A) the Company is the surviving corporation in the Change in Control or (B) your Stock Option is assumed or replaced by such surviving corporation; provided further that if the Committee so elects not to vest the unvested portion of your Stock Option in connection with a Change in Control, subject to the other terms and conditions of this Award Agreement and your continued employment with the Company on the applicable vesting date, the portion of your Stock Option that is unvested after the date of the Change in Control shall become fully vested on the six-month anniversary of the Change in Control or, if earlier, in accordance with the other, applicable vesting provisions of this Award Agreementearned.
(c) In the event of a transaction described in clause (vii) The Employer may terminate Executive’s employment under this Agreement upon its determination of the definition Disability of Good Reason in that certain Employment Agreement dated August 23the Executive, 2005 which Disability has continued for such period required for the Executive to become eligible to receive long term disability benefits under the Employer's long-term disability plan or insurance program. “Disability” shall mean as defined by and between Treasury Regulation § 1.409A-3(i)(4). During the Company and ▇▇▇▇ ▇▇▇▇▇▇▇▇, filed as Exhibit 10.2 period of any Disability leading up to the Companytermination of the Executive’s Form 8-K filed employment under this provision, the Employer shall continue to pay the Executive his full Base Salary at the rate then in effect and all perquisites and other benefits (other than any bonus) in accordance with the Securities and Exchange Commission on August 25Employer’s normal payroll practices; provided that, 2005 (whether or not Yucaipa has a controlling interest within the meaning amount of any such clause), your Stock Option shall become fully vested immediately prior to such transaction.
(d) Notwithstanding anything in this Award Agreement or the Employment Agreement payments to the contrary, in Executive shall be reduced by the event of any merger or consolidation sum of the Company amounts, if any, payable to the Executive for the same period under any other disability benefit covering the Executive that is provided by the Employer. Additionally, the Employer shall pay the Executive any bonus or other transaction following which either short-term incentive compensation earned, but not yet paid, through the Company is not the surviving corporation or the Common Stock ceases to be publicly tradeddate of termination, the Committee shall provide for:
(i) the substitution by the surviving corporation or the Company’s parent corporation for your outstanding Stock Option of stock option(s) on the same terms as your Stock Option, and which preserve(s) the economic value to you of your outstanding Stock Option; or
(ii) where all of the holders of the then outstanding Common Stock (other than Yucaipa) receive payment set forth in cash or cash equivalents in consideration for such Common Stock, the cancellation of your Stock Option upon payment to you of a per share amount in cash or cash equivalents equal to (A) the highest price paid for a share of Common Stock in such transaction, minus (B) the exercise price of your Stock OptionSection 5(b).
Appears in 1 contract
Sources: Employment Agreement (Hampton Roads Bankshares Inc)
Termination of Employment; Change in Control. (a) Notwithstanding the termination of this Agreement or the termination of Executive’s employment for any reason, the parties shall be required to carry out any provisions of this Agreement which contemplate performance by them subsequent to such termination. In addition, no termination of this Agreement shall affect any liability or other obligation of either party which shall have accrued prior to such termination, including, but not limited to, any liability, loss or damage on account of breach. No termination of employment shall terminate the event that your employment with obligation of the Company is terminated Employer to make payments of any vested benefits provided hereunder or the obligations of Executive under Section 6 of this Agreement. The existence of any claim or cause of action of the Executive against the Employer, whether predicated on this Agreement or not, shall not constitute a defense to the enforcement by reason the Employer of your Involuntary Terminationthe restrictions, except as otherwise expressly provided covenants and agreements contained in this Section 5, your Stock Option shall be considered fully vested and shall remain exercisable until the third anniversary of the Date of Termination. In the event the Date of Termination occurs (A) on or after the third anniversary of the Grant Date, (B) on or after a Change in Control, or (C) within six months prior to a Change in Control and such Involuntary Termination prior to the Change in Control was requested by a party to, or was otherwise in connection with, the Change in Control, your Stock Option shall be fully vested and shall remain exercisable (to the extent not previously exercised) until the third anniversary of the Date of Termination. In the event that you resign from your employment with the Company without Good Reason and the Date of Termination is prior to the third anniversary of the Grant Date, the vested portion of your Stock Option shall remain exercisable until the end of the 90-day period following the Date of Termination and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated by reason of your death or Disability and the Date of Termination is prior to the third anniversary of the Grant Date, except as otherwise expressly provided in this Section 5, the vested portion of your Stock Option on the Date of Termination shall remain exercisable until the third anniversary of the Date of Termination, and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated for any reason other than your termination for Cause and the Date of Termination is on or following the third anniversary of the Grant Date, your Stock Option shall be fully vested and, except as otherwise expressly provided in this Section 5, shall remain exercisable until the third anniversary of the Date of Termination. Upon termination of your employment by the Company for Cause, the vested and unvested portion of your Stock Option shall be forfeitedAgreement.
(b) In Executive’s employment hereunder may be terminated by Executive upon thirty (30) days written notice to the event Employer or at any time by mutual agreement in writing. It shall not constitute a breach of this Agreement for the Employer to suspend Executive’s duties and to place Executive on a Change in Control, your Stock Option paid leave during the thirty (30) day notice period.
(c) This Agreement shall become fully vested immediately prior theretoterminate upon death of Executive; provided, however, that in such event the Compensation Committee Employer shall pay to the estate of Executive the compensation, including salary and accrued but unused paid-time off in accordance with Employer’s policies with respect thereto, which otherwise would be payable to Executive through the end of the Board (month in which her death occurs. Such amounts shall be paid at the “Committee”) may elect end of the payroll period that follows the payroll period in its sole discretion prior which her employment terminates due to a Change in Control not death. Additionally, there shall be paid to vest your Stock Option in connection with such Change in Control if the Executive’s estate (i) it reasonably determines any bonus or other short term incentive compensation earned, but not yet paid, for any year prior to the year in good faith which her death occurs and (ii) any bonus or other short term incentive compensation for the year in which her death occurs that not accelerating she would have been eligible to receive if she had lived, multiplied by a fraction, the unvested portion numerator of your Stock Option which is necessary the number of days in the year that precede the date on which her death occurs and the denominator of which is three hundred sixty-five. Any bonus or advisable other short term incentive compensation payable under this Section 5(c) shall be paid (i) on the date of payment to consummate other employees eligible for bonuses or other short term incentive compensation under the Change in Controlsame plan or plans, or, (ii) immediately if no date or time frame for payment is specified in those plans, by March 15 of the calendar year following the Change calendar year in Control you are which the Cocompensation is earned.
(1) The Employer may terminate Executive’s employment other than for “Cause”, as defined in Section 5(e), at any time upon written notice to Executive, which termination shall be effective immediately. Executive may resign thirty (30) days after notice to the Employer for “Good Reason”, as hereafter defined. In the event the Executive’s employment terminates pursuant to this Section 5(d)(1), Executive shall receive, at the end of the payroll period that follows the payroll period in which her employment terminates, her salary earned through the date of termination and accrued but unused paid-President time off. In the event the Executive’s employment terminates pursuant to this Section 5(d)(1), Executive shall also receive the following items on the later of the applicable date set forth below or the 60th day following her termination of employment, provided that Executive signs a release and Chief Financial Officer waiver of claims reasonably satisfactory to the Employer that becomes irrevocable within 60 days of her termination of employment, and provided further that any portion of the premium due to be paid by the Employer during such 60-day period under item (iv) below shall be paid by the Employer on the due date whether or if you are not the Chief Financial Officerrelease and waiver has been signed:
(i) An amount equal to 300% of her current rate of annual salary in effect immediately preceding such termination; and
(ii) Any bonus or other short term incentive compensation earned, the Chief Financial Officer reports to you) of the surviving corporation in the Change in Controlbut not yet paid, which surviving corporation is at least comparable in size to the Company immediately for any year prior to the Change year in Control and any related transactions, which her employment terminates; and
(iii) such surviving corporation has Any bonus or other short term incentive compensation for the year in which her employment terminates that she would have been eligible to receive if her employment had not terminated, multiplied by a publicly traded class fraction, the numerator of common stock which is the number of days in the year that precede the date on which she is notified of the termination of her employment and the denominator of which is three hundred sixty-five; and
(iv) either If Executive timely elects COBRA coverage, her current benefits under group health and dental plans will continue. In such case, for the longer of one year or the remainder of the term of this Agreement: (Aa) Executive will receive such benefits at the rates paid by active participants, and (b) the Company is Employer will continue to pay its portion of such health and dental premiums. In no event shall such benefits continue beyond the surviving corporation in the Change in Control period permitted by COBRA, and periods of coverage under this Agreement shall offset Executive’s period of coverage under COBRA. Any amount due under Section 5(d)(1)(ii) or (Biii) your Stock Option shall be paid on (i) the date of payment to other employees eligible for bonuses or other short term incentive compensation under the same plan or plans or, (ii) if no date or time frame for payment is assumed or replaced specified in those plans, by such surviving corporation; provided further that if March 15 of the Committee so elects not to vest calendar year following the unvested portion of your Stock Option calendar year in connection with which the compensation is earned. If Executive is a Change in Control, subject to the other terms and conditions of this Award Agreement and your continued employment with the Company “specified employee” under Section 409A on the applicable vesting datedate of her termination of employment, the portion payment of your Stock Option that is unvested amounts due under Section 5(d)(1) shall be made six months and one day after the date of her employment terminates to the Change in Control shall become fully vested on the six-month anniversary of the Change in Control or, if earlier, in accordance with the other, applicable vesting provisions of this Award Agreement.extent required by Section 409A.
(c) In the event of a transaction described in clause (vii) of the definition of Good Reason in that certain Employment Agreement dated August 23, 2005 by and between the Company and ▇▇▇▇ ▇▇▇▇▇▇▇▇, filed as Exhibit 10.2 to the Company’s Form 8-K filed with the Securities and Exchange Commission on August 25, 2005 (whether or not Yucaipa has a controlling interest within the meaning of such clause), your Stock Option shall become fully vested immediately prior to such transaction.
(d2) Notwithstanding anything in this Award Agreement or the Employment Agreement to the contrary, in the event if Executive breaches Section 6 of this Agreement, Executive will not thereafter be entitled to receive any merger further compensation or consolidation benefits pursuant to this Section 5(d)(1).
(3) For purposes of the Company or other transaction following which either the Company is not the surviving corporation or the Common Stock ceases to be publicly tradedthis Agreement, the Committee Good Reason shall provide formean:
(i) The continued assignment of duties to the substitution Executive by the surviving corporation Employer which result in the Executive having significantly less authority or responsibility than contemplated in Section 2 hereof or ceasing to report directly to the CompanyChief Executive Officer of HRB without her express written consent;
(ii) The relocation of the Executive to any other primary place of employment which might require the Executive to move the Executive’s parent corporation residence which, for your outstanding Stock Option this purpose, includes any reassignment to a place of stock option(semployment located more than fifty (50) on miles from the same terms as your Stock OptionExecutive’s initially assigned place of employment, and which preserve(swithout the Executive’s express written consent to such relocation; provided, however, this subsection (ii) shall not apply in connection with the economic value relocation of the Executive if the Employer decides to you of your outstanding Stock Optionrelocate its headquarters; or
(iiiii) where all The Employer’s failure to comply with any material term of this Agreement after being advised in writing of such failure and having been given a reasonable opportunity and period to remedy such failure, if such failure can be remedied.
(e) The Employer shall have the right to terminate Executive’s employment under this Agreement at any time for Cause, which termination shall be effective immediately. Termination for “Cause” shall mean material failure of the holders Executive to perform her duties under this Agreement due to the gross negligence or gross misconduct of the then outstanding Common Stock (other than Yucaipa) receive payment in cash or cash equivalents in consideration for such Common StockExecutive, the cancellation of your Stock Option upon payment to you unlawful business conduct, theft, commission of a per share amount in cash felony, a material violation of the Employer’s work rules or cash equivalents equal policies or a breach of Executive’s fiduciary duties. In the event Executive’s employment under this Agreement is terminated for Cause, Executive shall thereafter have no right to (A) the highest price paid for a share of Common Stock in such transaction, minus (B) the exercise price of your Stock Optionreceive compensation or other benefits under this Agreement.
Appears in 1 contract
Sources: Employment Agreement (Hampton Roads Bankshares Inc)
Termination of Employment; Change in Control. Notwithstanding the termination of this Agreement or the termination of the Executive’s employment for any reason, the parties shall be required to carry out any provisions of this Agreement which contemplate performance by them subsequent to such termination. In addition, no termination of this Agreement shall affect any liability or other obligation of either party which shall have accrued prior to such termination, including, but not limited to, any liability, loss or damage on account of breach. No termination of employment shall terminate the obligation of the Employer to make payments of any vested benefits provided hereunder or the obligations of the Executive under Section 6 of this Agreement. Unless otherwise stated in this Section 4, the effect of termination on any outstanding incentive awards, stock options, stock appreciation rights, performance units, or other incentives shall be governed by the terms of the applicable benefit or incentive plan and/or the agreements governing such incentives.
(a) In The Executive’s employment hereunder may be terminated by the event that your Executive upon 90 days written notice to the Employer or at any time by mutual agreement in writing. It shall not constitute a breach of this Agreement for the Employer to suspend the Executive’s duties and to place the Executive on a paid leave during the 90-day notice period. If the Executive’s employment with the Company is terminated by reason of your Involuntary Termination, except as otherwise expressly provided in under this Section 54(a), your Stock Option the Employer shall pay the Executive only any sums due to her as Base Salary and/or reimbursement of expenses through the date of termination. Such amounts shall be considered fully vested and shall remain exercisable until the third anniversary of the Date of Termination. In the event the Date of Termination occurs (A) on or after the third anniversary of the Grant Date, (B) on or after a Change in Control, or (C) within six months prior to a Change in Control and such Involuntary Termination prior to the Change in Control was requested by a party to, or was otherwise in connection with, the Change in Control, your Stock Option shall be fully vested and shall remain exercisable (to the extent not previously exercised) until the third anniversary of the Date of Termination. In the event that you resign from your employment with the Company without Good Reason and the Date of Termination is prior to the third anniversary of the Grant Date, the vested portion of your Stock Option shall remain exercisable until paid at the end of the 90-day payroll period following that follows the Date of Termination and the unvested portion of your Stock Option shall be forfeited. In the event that your payroll period in which her employment with the Company is terminated by reason of your death or Disability and the Date of Termination is prior to the third anniversary of the Grant Date, except as otherwise expressly provided in this Section 5, the vested portion of your Stock Option on the Date of Termination shall remain exercisable until the third anniversary of the Date of Termination, and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated for any reason other than your termination for Cause and the Date of Termination is on or following the third anniversary of the Grant Date, your Stock Option shall be fully vested and, except as otherwise expressly provided in this Section 5, shall remain exercisable until the third anniversary of the Date of Termination. Upon termination of your employment by the Company for Cause, the vested and unvested portion of your Stock Option shall be forfeitedterminates.
(b) In This Agreement shall terminate upon death of the event of a Change in Control, your Stock Option shall become fully vested immediately prior theretoExecutive; provided, however, that in such event the Compensation Committee Employer shall pay to the estate of the Board (Executive the “Committee”) may elect compensation, including Base Salary and accrued but unused paid-time off in its sole discretion prior accordance with Employer’s policies with respect thereto, which otherwise would be payable to a Change the Executive through the date on which her death occurs. Such amounts shall be paid at the end of the payroll period that follows the payroll period in Control not which her employment terminates due to vest your Stock Option in connection with such Change in Control if her death. Additionally, the Employer shall (i) it reasonably determines pay to the Executive’s estate (A) any bonus or other short-term incentive compensation earned, but not yet paid, for any year prior to the year in good faith which her death occurs, and (B) any bonus or other short-term incentive compensation for the year in which her death occurs that not accelerating she would have been eligible to receive if she had lived, multiplied by a fraction, the numerator of which is the number of days in the year that precede the date on which her death occurs and the denominator of which is three hundred sixty-five, and (ii) cause any unvested portion of your the 2017 Restricted Stock Option is necessary Award to become fully vested. Any bonus or advisable other short-term incentive compensation payable under this Section 4(b) shall be paid (i) on the date of payment to consummate other employees eligible for bonuses or other short-term incentive compensation under the Change in Controlsame plan or plans, or, (ii) immediately if no date or time frame for payment is specified in those plans, by March 1st of the calendar year following the Change calendar year in Control you are which the Co-President and Chief Financial Officer (or if you are not the Chief Financial Officer, the Chief Financial Officer reports to you) of the surviving corporation in the Change in Control, which surviving corporation compensation is at least comparable in size to the Company immediately prior to the Change in Control and any related transactions, (iii) such surviving corporation has a publicly traded class of common stock and (iv) either (A) the Company is the surviving corporation in the Change in Control or (B) your Stock Option is assumed or replaced by such surviving corporation; provided further that if the Committee so elects not to vest the unvested portion of your Stock Option in connection with a Change in Control, subject to the other terms and conditions of this Award Agreement and your continued employment with the Company on the applicable vesting date, the portion of your Stock Option that is unvested after the date of the Change in Control shall become fully vested on the six-month anniversary of the Change in Control or, if earlier, in accordance with the other, applicable vesting provisions of this Award Agreementearned.
(c) The Employer may terminate Executive’s employment under this Agreement upon its determination of the Disability of the Executive, which Disability has continued for such period required for the Executive to become eligible to receive long term disability benefits under the Employer’s long-term disability plan or insurance program. “Disability” shall mean as defined by Treasury Regulation § 1.409A-3(i)(4). During the period of any Disability leading up to the termination of the Executive’s employment under this provision, the Employer shall continue to pay the Executive her full Base Salary at the rate then in effect and all perquisites and other benefits (other than any bonus) in accordance with the Employer’s normal payroll practices; provided that, the amount of any such payments to the Executive shall be reduced by the sum of the amounts, if any, payable to the Executive for the same period under any other disability benefit covering the Executive that is provided by the Employer. In the event that Employer terminates Executive’s employment upon its determination of a transaction described in clause (vii) Disability of the definition of Good Reason in that certain Employment Agreement dated August 23, 2005 by and between the Company and ▇▇▇▇ ▇▇▇▇▇▇▇▇, filed as Exhibit 10.2 to the Company’s Form 8-K filed with the Securities and Exchange Commission on August 25, 2005 (whether or not Yucaipa has a controlling interest within the meaning of such clause), your Stock Option shall become fully vested immediately prior to such transaction.
(d) Notwithstanding anything in this Award Agreement or the Employment Agreement to the contrary, in the event of any merger or consolidation of the Company or other transaction following which either the Company is not the surviving corporation or the Common Stock ceases to be publicly tradedExecutive, the Committee Employer shall provide for:
(i) pay the substitution by Executive any bonus or other short-term incentive compensation earned, but not yet paid, through the surviving corporation or the Company’s parent corporation for your outstanding Stock Option date of stock option(s) termination, on the same terms as your Stock Optionset forth in Section 4(b), and which preserve(s) the economic value to you of your outstanding Stock Option; or
(ii) where all cause any unvested portion of the holders of the then outstanding Common 2017 Restricted Stock (other than Yucaipa) receive payment in cash or cash equivalents in consideration for such Common Stock, the cancellation of your Stock Option upon payment Award to you of a per share amount in cash or cash equivalents equal to (A) the highest price paid for a share of Common Stock in such transaction, minus (B) the exercise price of your Stock Optionbecome fully vested.
Appears in 1 contract
Termination of Employment; Change in Control. (a) In the event that your (i) New Reit terminates Executive's employment with the Company is terminated by reason of your Involuntary Termination, except for Cause (as otherwise expressly provided in this Section 5, your Stock Option shall be considered fully vested and shall remain exercisable until the third anniversary of the Date of Termination. In the event the Date of Termination occurs (Ahereinafter defined) on or after the third anniversary of the Grant Date, (B) on or after a Change in Control, or (Cii) within six months prior to a Change in Control and such Involuntary Termination prior to the Change in Control was requested by a party to, or was otherwise in connection with, the Change in Control, your Stock Option shall be fully vested and shall remain exercisable (to the extent not previously exercised) until the third anniversary of the Date of Termination. In the event that you resign from your Executive terminates her employment with the Company without Good Reason (as hereinafter defined), New Reit shall pay Executive any unpaid salary accrued through and including the Date date of Termination is prior termination (the "Accrued Amount"). In addition, in such event, Executive shall be entitled (i) to exercise any options, including the Options granted hereunder, which have vested and are exercisable in accordance with the terms of this Agreement, the applicable stock option agreement or the Plan, and (ii) to retain any shares awarded to Executive which are fully vested on the date of termination. Except for any rights which Executive may have to the third anniversary of the Grant DateAccrued Amount, the vested portion of your Stock Option shall remain exercisable until the end of the 90-day period following the Date of Termination options and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated by reason of your death or Disability vested share awards and the Date of Termination is prior to the third anniversary of the Grant Date, except as otherwise expressly provided in this Section 5required by law, the vested portion of your Stock Option on the Date of Termination New Reit shall remain exercisable until the third anniversary of the Date of Termination, and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated for any reason other than your termination for Cause and the Date of Termination is on or have no further obligations hereunder following the third anniversary of the Grant Date, your Stock Option shall be fully vested and, except as otherwise expressly provided in this Section 5, shall remain exercisable until the third anniversary of the Date of Termination. Upon termination of your employment by the Company for Cause, the vested and unvested portion of your Stock Option shall be forfeitedsuch termination.
(b) In the event of termination of Executive's employment as a Change result of either (i) Executive's death or Disability (as hereinafter defined), (ii) termination by New Reit for any reason other than Cause or (iii) termination by Executive of her employment for Good Reason, New Reit shall pay to Executive (A) the Accrued Amount, (B) the unpaid salary, at the rate then in Controleffect without reduction, your Stock Option shall become fully vested immediately prior thereto; provided, however, that from the Compensation Committee date of termination through the end of the Board Employment Period remaining (assuming no such termination occurred) and (C) a pro-rata portion, based upon the “Committee”number of days in the period beginning with January 1 of the calendar year in which such termination occurred and ending with the date the Employment Period ends (assuming such termination did not occur), of the average annual amount of bonus pool payments paid to Executive during each year of Executive's employment hereunder. In the event the Executive is terminated in the first year of employment, Executive shall receive her pro-rata portion of the amount that would have otherwise been payable to Executive in such year had her employment not terminated. The aforesaid amount shall be payable, at the option of Executive, her estate or her personal representative, either (i) may elect in its sole discretion prior full immediately upon such termination without discount for early payment or (ii) monthly over the remainder of the Employment Period. In addition, Executive shall have a fully-vested non-forfeitable right to the Options and any other options or restricted stock awards previously granted to her as of the date the applicable event listed in the first sentence of this Paragraph 4(b) occurs. Executive shall be entitled, at the option of Executive, her estate or her personal representative, within ninety (90) days (one (1) year in the case of termination as a result of Executive's death or Disability) of the date of such termination, (i) to exercise any options to purchase shares of Common Stock that have vested (including, without limitation, by acceleration in accordance with the terms of this Agreement) and are exercisable in accordance with the terms of either this Agreement, any stock option agreement or the Plan, (ii) to retain any shares of Common Stock awarded to Executive which are vested on the date of termination, and (iii) to require New Reit (upon written notice delivered within one hundred eighty (180) days following the date of Executive's termination) to repurchase all or any portion of Executive's vested options (including without limitation options, if any, which have vested by acceleration in accordance with the terms of this Agreement the Plan or stock option agreement) to purchase shares of Common Stock at a price equal to the difference between the Fair Market Value (as hereinafter defined) of the shares of Common Stock for which the options to be repurchased are exercisable and the exercise price of such option as of the date of Executive's termination of employment.
(i) In the event of a Change in Control not to vest your Stock Option (as hereinafter defined) and irrespective of whether Executive's employment terminates in connection with such Change in Control if (i) it reasonably determines in good faith that not accelerating the unvested portion of your Stock Option is necessary or advisable to consummate the Change in Control, (ii) immediately following New Reit shall pay Executive and Executive shall be entitled to all the Change in Control you are the Co-President payments and Chief Financial Officer (or rights Executive would have had if you are not the Chief Financial Officer, the Chief Financial Officer reports to you) of the surviving corporation in the Change in Control, which surviving corporation is at least comparable in size to the Company immediately prior to the Change in Control and any related transactions, (iii) such surviving corporation has a publicly traded class of common stock and (iv) either (A) the Company is the surviving corporation in the Change in Control or (B) your Stock Option is assumed or replaced by such surviving corporation; provided further that if the Committee so elects not to vest the unvested portion of your Stock Option in connection with a Change in Control, subject to the other terms and conditions of this Award Agreement and your continued Executive's employment with the Company had been terminated on the applicable vesting date, the portion of your Stock Option that is unvested after the date of the Change in Control due to Disability as set forth in sub-paragraph 4(b) (including vesting in the Options and all other options and restricted stock awards and all benefits under this Agreement) except that Executive must exercise any options which have vested within ninety (90) days (one (1) year in the case of termination as a result of Executive's death or Disability) of her actual termination of employment. Furthermore, all cash payments owed to Executive pursuant to this Paragraph 4(c)(i) shall become fully vested be paid to Executive in a single sum without discount for early payment on or immediately prior to the six-month anniversary date of the Change in Control or, if earlier, in accordance but prior to the consummation of the transaction with the other, applicable vesting provisions of this Award Agreementany successor.
(cii) In If the event Change in Control is a change "in the ownership or effective control" of New Reit or "in the ownership of a transaction described in clause (vii) substantial portion of the definition assets" of Good Reason in that certain Employment Agreement dated August 23, 2005 by and between the Company and ▇▇▇▇ ▇▇▇▇▇▇▇▇, filed as Exhibit 10.2 to the Company’s Form 8-K filed with the Securities and Exchange Commission on August 25, 2005 (whether or not Yucaipa has a controlling interest New Reit within the meaning of such clauseSection 280G of the Internal Revenue Code of 1986, as amended, (the "Code") and the Executive is then, in any taxable year, liable for the payment of an excise tax under Section 4999 of the Code (or any successor provisions thereto), your Stock Option with respect to any payment in the nature of compensation made by New Reit to (or for the benefit of) Executive, New Reit shall become fully vested immediately prior pay Executive an amount equal to X determined under the following formula: X = E x P ------------------------------------ 1 - [(FI x (1 - SLI)) + SLI + E + M] where E = the rate at which the excise tax is assessed under Section 4999 of the Code P = the amount with respect to which such transactionexcise tax is assessed, determined without regard to this Section 4(c)(ii) FI = the highest effective marginal rate of income tax applicable to Executive under the Code for the taxable year in question (taking into account any phase-out or loss of deductions, personal exemptions and other similar adjustments); SLI = the sum of the highest marginal rates of income tax applicable to Executive under all applicable state and local laws for the taxable year in question (taking into account any phase-out or loss of deductions, personal exemptions and other similar adjustments); and M = the highest marginal rate of Medicare Tax applicable to Executive under the Code for the taxable year in question. With respect to any payment in the nature of compensation that is made to (or for the benefit of) Executive under the terms of this Agreement or otherwise and on which an excise tax under Section 4999 of the Code will be assessed, the payment determined under this Section 4(c)(ii) shall be made of the earlier of the date New Reit is required to withhold such tax, or the date the tax is required to be paid by Executive. It is the intention of the parties that New Reit provide Executive with a full tax gross-up under the provisions of this Paragraph, so that on a net after-tax basis, the result to Executive shall be the same as if the excise tax under Section 4999 of the Code (or any successor provisions) had not been imposed. The Excise Tax Gross Up shall be adjusted to achieve a full gross-up if alternative minimum tax rules are applicable to Executive.
(d) Notwithstanding anything in For purposes of this Award Agreement or the Employment Agreement to the contrary, in the event of any merger or consolidation of the Company or other transaction following which either the Company is not the surviving corporation or the Common Stock ceases to be publicly traded, the Committee shall provide forAgreement:
(i) the substitution by the surviving corporation or the Company’s parent corporation for your outstanding Stock Option of stock option(s) on the same terms as your Stock Option, and which preserve(s) the economic value to you of your outstanding Stock Option; or
(ii) where all of the holders of the then outstanding Common Stock (other than Yucaipa) receive payment in cash or cash equivalents in consideration for such Common Stock, the cancellation of your Stock Option upon payment to you of a per share amount in cash or cash equivalents equal to (A) the highest price paid for a share of Common Stock in such transaction, minus (B) the exercise price of your Stock Option.
Appears in 1 contract
Sources: Employment Agreement (Philips International Realty Corp)
Termination of Employment; Change in Control. (a) In Notwithstanding the event that your termination of this Agreement or the termination of the Executive’s employment with for any reason, the Company is terminated by reason of your Involuntary Termination, except as otherwise expressly provided in this Section 5, your Stock Option parties shall be considered fully vested and required to carry out any provisions of this Agreement which contemplate performance by them subsequent to such termination. In addition, no termination of this Agreement shall remain exercisable until affect any liability or other obligation of either party which shall have accrued prior to such termination, including, but not limited to, any liability, loss or damage on account of breach. No termination of employment shall terminate the third anniversary obligation of the Date Employer to make payments of Termination. In any vested benefits provided hereunder or the event the Date of Termination occurs (A) on or after the third anniversary obligations of the Grant Date, (B) on or after a Change in Control, or (C) within six months prior to a Change in Control Executive under Sections 7 and such Involuntary Termination prior to the Change in Control was requested by a party to, or was 8 of this Agreement. Unless otherwise in connection with, the Change in Control, your Stock Option shall be fully vested and shall remain exercisable (to the extent not previously exercised) until the third anniversary of the Date of Termination. In the event that you resign from your employment with the Company without Good Reason and the Date of Termination is prior to the third anniversary of the Grant Date, the vested portion of your Stock Option shall remain exercisable until the end of the 90-day period following the Date of Termination and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated by reason of your death or Disability and the Date of Termination is prior to the third anniversary of the Grant Date, except as otherwise expressly provided stated in this Section 5, the vested portion effect of your Stock Option termination on any outstanding incentive awards, stock options, stock appreciation rights, performance units, or other incentives shall be governed by the Date of Termination shall remain exercisable until the third anniversary terms of the Date applicable benefit or incentive plan and/or the agreements governing such incentives.
(a) The Executive’s employment hereunder may be terminated by the Executive upon 30 days written notice to the Employer or at any time by mutual agreement in writing. It shall not constitute a breach of Terminationthis Agreement for the Employer to suspend the Executive’s duties and to place the Executive on a paid leave during the 30-day notice period. If the Executive’s employment is terminated under this Section 5(a), and the unvested portion Employer shall pay the Executive only any sums due to him as Base Salary and/or reimbursement of your Stock Option expenses through the date of termination. Such amounts shall be forfeited. In paid at the event that your employment with the Company is terminated for any reason other than your termination for Cause and the Date of Termination is on or following the third anniversary end of the Grant Date, your Stock Option shall be fully vested and, except as otherwise expressly provided payroll period that follows the payroll period in this Section 5, shall remain exercisable until the third anniversary of the Date of Termination. Upon termination of your which his employment by the Company for Cause, the vested and unvested portion of your Stock Option shall be forfeitedterminates.
(b) In This Agreement shall terminate upon death of the event of a Change in Control, your Stock Option shall become fully vested immediately prior theretoExecutive; provided, however, that in such event the Compensation Committee Employer shall pay to the estate of the Board (Executive the “Committee”) may elect compensation, including Base Salary and accrued but unused paid-time off in its sole discretion prior accordance with Employer’s policies with respect thereto, which otherwise would be payable to a Change the Executive through the date on which his death occurs. Such amounts shall be paid at the end of the payroll period that follows the payroll period in Control not which his employment terminates due to vest your Stock Option in connection with such Change in Control if his death. Additionally, the Employer shall pay to the Executive’s estate (i) it reasonably determines any bonus or other short-term incentive compensation earned, but not yet paid, for any year prior to the year in good faith which his death occurs and (ii) any bonus or other short-term incentive compensation for the year in which his death occurs that not accelerating he would have been eligible to receive if he had lived, multiplied by a fraction, the unvested portion numerator of your Stock Option which is necessary the number of days in the year that precede the date on which his death occurs and the denominator of which is three hundred sixty-five. Any bonus or advisable other short-term incentive compensation payable under this Section 5(b) shall be paid (i) on the date of payment to consummate other employees eligible for bonuses or other short-term incentive compensation under the Change in Controlsame plan or plans, or, (ii) immediately if no date or time frame for payment is specified in those plans, by March 15 of the calendar year following the Change calendar year in Control you are which the Co-President and Chief Financial Officer (or if you are not the Chief Financial Officer, the Chief Financial Officer reports to you) of the surviving corporation in the Change in Control, which surviving corporation compensation is at least comparable in size to the Company immediately prior to the Change in Control and any related transactions, (iii) such surviving corporation has a publicly traded class of common stock and (iv) either (A) the Company is the surviving corporation in the Change in Control or (B) your Stock Option is assumed or replaced by such surviving corporation; provided further that if the Committee so elects not to vest the unvested portion of your Stock Option in connection with a Change in Control, subject to the other terms and conditions of this Award Agreement and your continued employment with the Company on the applicable vesting date, the portion of your Stock Option that is unvested after the date of the Change in Control shall become fully vested on the six-month anniversary of the Change in Control or, if earlier, in accordance with the other, applicable vesting provisions of this Award Agreementearned.
(c) In the event of a transaction described in clause (vii) The Employer may terminate Executive’s employment under this Agreement upon its determination of the definition Disability of Good Reason in that certain Employment Agreement dated August 23the Executive, 2005 which Disability has continued for such period required for the Executive to become eligible to receive long term disability benefits under the Employer’s long-term disability plan or insurance program. “Disability” shall mean as defined by and between Treasury Regulation § 1.409A-3(i)(4). During the Company and ▇▇▇▇ ▇▇▇▇▇▇▇▇, filed as Exhibit 10.2 period of any Disability leading up to the Companytermination of the Executive’s Form 8-K filed employment under this provision, the Employer shall continue to pay the Executive his full Base Salary at the rate then in effect and all perquisites and other benefits (other than any bonus) in accordance with the Securities and Exchange Commission on August 25Employer’s normal payroll practices provided that, 2005 (whether or not Yucaipa has a controlling interest within the meaning amount of any such clause), your Stock Option shall become fully vested immediately prior to such transaction.
(d) Notwithstanding anything in this Award Agreement or the Employment Agreement payments to the contrary, in Executive shall be reduced by the event of any merger or consolidation sum of the Company amounts, if any, payable to the Executive for the same period under any other disability benefit covering the Executive that is provided by the Employer. Additionally, the Employer shall pay the Executive any bonus or other transaction following which either short-term incentive compensation earned, but not yet paid, through the Company is not the surviving corporation or the Common Stock ceases to be publicly tradeddate of termination, the Committee shall provide for:
(i) the substitution by the surviving corporation or the Company’s parent corporation for your outstanding Stock Option of stock option(s) on the same terms as your Stock Option, and which preserve(s) the economic value to you of your outstanding Stock Option; or
(ii) where all of the holders of the then outstanding Common Stock (other than Yucaipa) receive payment set forth in cash or cash equivalents in consideration for such Common Stock, the cancellation of your Stock Option upon payment to you of a per share amount in cash or cash equivalents equal to (A) the highest price paid for a share of Common Stock in such transaction, minus (B) the exercise price of your Stock OptionSection 5(b).
Appears in 1 contract
Sources: Employment Agreement (Hampton Roads Bankshares Inc)
Termination of Employment; Change in Control. (a) In Notwithstanding the event that your termination of this Agreement or the termination of the Executive’s employment with for any reason, the Company is terminated by reason of your Involuntary Termination, except as otherwise expressly provided in this Section 5, your Stock Option parties shall be considered fully vested and required to carry out any provisions of this Agreement which contemplate performance by them subsequent to such termination. In addition, no termination of this Agreement shall remain exercisable until affect any liability or other obligation of either party which shall have accrued prior to such termination, including, but not limited to, any liability, loss or damage on account of breach. No termination of employment shall terminate the third anniversary obligation of the Date Employer to make payments of Termination. In any vested benefits provided hereunder or the event the Date of Termination occurs (A) on or after the third anniversary obligations of the Grant Date, (B) on or after a Change in Control, or (C) within six months prior to a Change in Control Executive under Sections 7 and such Involuntary Termination prior to the Change in Control was requested by a party to, or was 8 of this Agreement. Unless otherwise in connection with, the Change in Control, your Stock Option shall be fully vested and shall remain exercisable (to the extent not previously exercised) until the third anniversary of the Date of Termination. In the event that you resign from your employment with the Company without Good Reason and the Date of Termination is prior to the third anniversary of the Grant Date, the vested portion of your Stock Option shall remain exercisable until the end of the 90-day period following the Date of Termination and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated by reason of your death or Disability and the Date of Termination is prior to the third anniversary of the Grant Date, except as otherwise expressly provided stated in this Section 5, the vested portion effect of your Stock Option termination on any outstanding incentive awards, stock options, stock appreciation rights, performance units, or other incentives shall be governed by the Date of Termination shall remain exercisable until the third anniversary terms of the Date applicable benefit or incentive plan and/or the agreements governing such incentives.
(a) The Executive’s employment hereunder may be terminated by the Executive upon 30 days written notice to the Employer or at any time by mutual agreement in writing. It shall not constitute a breach of Terminationthis Agreement for the Employer to suspend the Executive’s duties and to place the Executive on a paid leave during the 30-day notice period. If the Executive’s employment is terminated under this Section 5(a), and the unvested portion Employer shall pay the Executive only any sums due to him as Base Salary and/or reimbursement of your Stock Option expenses through the date of termination. Such amounts shall be forfeited. In paid at the event that your employment with the Company is terminated for any reason other than your termination for Cause and the Date of Termination is on or following the third anniversary end of the Grant Date, your Stock Option shall be fully vested and, except as otherwise expressly provided payroll period that follows the payroll period in this Section 5, shall remain exercisable until the third anniversary of the Date of Termination. Upon termination of your which his employment by the Company for Cause, the vested and unvested portion of your Stock Option shall be forfeitedterminates.
(b) In This Agreement shall terminate upon death of the event of a Change in Control, your Stock Option shall become fully vested immediately prior theretoExecutive; provided, however, that in such event the Compensation Committee Employer shall pay to the estate of the Board Executive the compensation, including Base Salary
(c) and accrued but unused paid-time off in accordance with Employer’s policies with respect thereto, which otherwise would be payable to the “Committee”) may elect Executive through the date on which his death occurs. Such amounts shall be paid at the end of the payroll period that follows the payroll period in its sole discretion prior which his employment terminates due to a Change in Control not his death. Additionally, the Employer shall pay to vest your Stock Option in connection with such Change in Control if the Executive’s estate (i) it reasonably determines any bonus or other short-term incentive compensation earned, but not yet paid, for any year prior to the year in good faith which his death occurs and (ii) any bonus or other short-term incentive compensation for the year in which his death occurs that not accelerating he would have been eligible to receive if he had lived, multiplied by a fraction, the unvested portion numerator of your Stock Option which is necessary the number of days in the year that precede the date on which his death occurs and the denominator of which is three hundred sixty-five. Any bonus or advisable other short-term incentive compensation payable under this Section 5(b) shall be paid (i) on the date of payment to consummate other employees eligible for bonuses or other short-term incentive compensation under the Change in Controlsame plan or plans, or, (ii) immediately if no date or time frame for payment is specified in those plans, by March 15 of the calendar year following the Change calendar year in Control you are which the Co-President and Chief Financial Officer (or if you are not the Chief Financial Officer, the Chief Financial Officer reports to you) of the surviving corporation in the Change in Control, which surviving corporation compensation is at least comparable in size to the Company immediately prior to the Change in Control and any related transactions, (iii) such surviving corporation has a publicly traded class of common stock and (iv) either (A) the Company is the surviving corporation in the Change in Control or (B) your Stock Option is assumed or replaced by such surviving corporation; provided further that if the Committee so elects not to vest the unvested portion of your Stock Option in connection with a Change in Control, subject to the other terms and conditions of this Award Agreement and your continued employment with the Company on the applicable vesting date, the portion of your Stock Option that is unvested after the date of the Change in Control shall become fully vested on the six-month anniversary of the Change in Control or, if earlier, in accordance with the other, applicable vesting provisions of this Award Agreement.
(c) In the event of a transaction described in clause (vii) of the definition of Good Reason in that certain Employment Agreement dated August 23, 2005 by and between the Company and ▇▇▇▇ ▇▇▇▇▇▇▇▇, filed as Exhibit 10.2 to the Company’s Form 8-K filed with the Securities and Exchange Commission on August 25, 2005 (whether or not Yucaipa has a controlling interest within the meaning of such clause), your Stock Option shall become fully vested immediately prior to such transactionearned.
(d) Notwithstanding anything in The Employer may terminate Executive’s employment under this Award Agreement upon its determination of the Disability of the Executive, which Disability has continued for such period required for the Executive to become eligible to receive long term disability benefits under the Employer's long-term disability plan or insurance program. “Disability” shall mean as defined by Treasury Regulation § 1.409A-3(i)(4). During the Employment Agreement period of any Disability leading up to the contrarytermination of the Executive’s employment under this provision, the Employer shall continue to pay the Executive his full Base Salary at the rate then in effect and all perquisites and other benefits (other than any bonus) in accordance with the event Employer’s normal payroll practices; provided that, the amount of any merger or consolidation such payments to the Executive shall be reduced by the sum of the Company amounts, if any, payable to the Executive for the same period under any other disability benefit covering the Executive that is provided by the Employer. Additionally, the Employer shall pay the Executive any bonus or other transaction following which either short-term incentive compensation earned, but not yet paid, through the Company is not the surviving corporation or the Common Stock ceases to be publicly tradeddate of termination, the Committee shall provide for:
(i) the substitution by the surviving corporation or the Company’s parent corporation for your outstanding Stock Option of stock option(s) on the same terms as your Stock Option, and which preserve(s) the economic value to you of your outstanding Stock Option; or
(ii) where all of the holders of the then outstanding Common Stock (other than Yucaipa) receive payment set forth in cash or cash equivalents in consideration for such Common Stock, the cancellation of your Stock Option upon payment to you of a per share amount in cash or cash equivalents equal to (A) the highest price paid for a share of Common Stock in such transaction, minus (B) the exercise price of your Stock OptionSection 5(b).
Appears in 1 contract
Sources: Employment Agreement (Hampton Roads Bankshares Inc)
Termination of Employment; Change in Control. (a) In Notwithstanding the event that your termination of this Agreement or the termination of the Executive’s employment with for any reason, the Company is terminated by reason of your Involuntary Termination, except as otherwise expressly provided in this Section 5, your Stock Option parties shall be considered fully vested and required to carry out any provisions of this Agreement which contemplate performance by them subsequent to such termination. In addition, no termination of this Agreement shall remain exercisable until affect any liability or other obligation of either party which shall have accrued prior to such termination, including, but not limited to, any liability, loss or damage on account of breach. No termination of employment shall terminate the third anniversary obligation of the Date Employer to make payments of Termination. In any vested benefits provided hereunder or the event the Date of Termination occurs (A) on or after the third anniversary obligations of the Grant Date, (B) on or after a Change in Control, or (C) within six months prior to a Change in Control Executive under Sections 7 and such Involuntary Termination prior to the Change in Control was requested by a party to, or was 8 of this Agreement. Unless otherwise in connection with, the Change in Control, your Stock Option shall be fully vested and shall remain exercisable (to the extent not previously exercised) until the third anniversary of the Date of Termination. In the event that you resign from your employment with the Company without Good Reason and the Date of Termination is prior to the third anniversary of the Grant Date, the vested portion of your Stock Option shall remain exercisable until the end of the 90-day period following the Date of Termination and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated by reason of your death or Disability and the Date of Termination is prior to the third anniversary of the Grant Date, except as otherwise expressly provided stated in this Section 5, the vested portion effect of your Stock Option termination on any outstanding incentive awards, stock options, stock appreciation rights, performance units, or other incentives shall be governed by the Date of Termination shall remain exercisable until the third anniversary terms of the Date applicable benefit or incentive plan and/or the agreements governing such incentives.
(a) The Executive’s employment hereunder may be terminated by the Executive upon 30 days written notice to the Employer or at any time by mutual agreement in writing. It shall not constitute a breach of Terminationthis Agreement for the Employer to suspend the Executive’s duties and to place the Executive on a paid leave during the 30-day notice period. If the Executive’s employment is terminated under this Section 5(a), and the unvested portion Employer shall pay the Executive only any sums due to her as Base Salary and/or reimbursement of your Stock Option expenses through the date of termination. Such amounts shall be forfeited. In paid at the event that your employment with the Company is terminated for any reason other than your termination for Cause and the Date of Termination is on or following the third anniversary end of the Grant Date, your Stock Option shall be fully vested and, except as otherwise expressly provided payroll period that follows the payroll period in this Section 5, shall remain exercisable until the third anniversary of the Date of Termination. Upon termination of your which her employment by the Company for Cause, the vested and unvested portion of your Stock Option shall be forfeitedterminates.
(b) In This Agreement shall terminate upon death of the event of a Change in Control, your Stock Option shall become fully vested immediately prior theretoExecutive; provided, however, that in such event the Compensation Committee Employer shall pay to the estate of the Board (Executive the “Committee”) may elect compensation, including Base Salary and accrued but unused paid-time off in its sole discretion prior accordance with Employer’s policies with respect thereto, which otherwise would be payable to a Change the Executive through the date on which her death occurs. Such amounts shall be paid at the end of the payroll period that follows the payroll period in Control not which her employment terminates due to vest your Stock Option in connection with such Change in Control if her death. Additionally, the Employer shall pay to the Executive’s estate (i) it reasonably determines any bonus or other short-term incentive compensation earned, but not yet paid, for any year prior to the year in good faith which her death occurs and (ii) any bonus or other short-term incentive compensation for the year in which her death occurs that not accelerating she would have been eligible to receive if she had lived, multiplied by a fraction, the unvested portion numerator of your Stock Option which is necessary the number of days in the year that precede the date on which her death occurs and the denominator of which is three hundred sixty-five. Any bonus or advisable other short-term incentive compensation payable under this Section 5(b) shall be paid (i) on the date of payment to consummate other employees eligible for bonuses or other short-term incentive compensation under the Change in Controlsame plan or plans, or, (ii) immediately if no date or time frame for payment is specified in those plans, by March 15 of the calendar year following the Change calendar year in Control you are which the Co-President and Chief Financial Officer (or if you are not the Chief Financial Officer, the Chief Financial Officer reports to you) of the surviving corporation in the Change in Control, which surviving corporation compensation is at least comparable in size to the Company immediately prior to the Change in Control and any related transactions, (iii) such surviving corporation has a publicly traded class of common stock and (iv) either (A) the Company is the surviving corporation in the Change in Control or (B) your Stock Option is assumed or replaced by such surviving corporation; provided further that if the Committee so elects not to vest the unvested portion of your Stock Option in connection with a Change in Control, subject to the other terms and conditions of this Award Agreement and your continued employment with the Company on the applicable vesting date, the portion of your Stock Option that is unvested after the date of the Change in Control shall become fully vested on the six-month anniversary of the Change in Control or, if earlier, in accordance with the other, applicable vesting provisions of this Award Agreementearned.
(c) In the event of a transaction described in clause (vii) The Employer may terminate Executive’s employment under this Agreement upon its determination of the definition Disability of Good Reason in that certain Employment Agreement dated August 23the Executive, 2005 which Disability has continued for such period required for the Executive to become eligible to receive long term disability benefits under the Employer’s long-term disability plan or insurance program. “Disability” shall mean as defined by and between Treasury Regulation § 1.409A-3(i)(4). During the Company and ▇▇▇▇ ▇▇▇▇▇▇▇▇, filed as Exhibit 10.2 period of any Disability leading up to the Companytermination of the Executive’s Form 8-K filed employment under this provision, the Employer shall continue to pay the Executive her full Base Salary at the rate then in effect and all perquisites and other benefits (other than any bonus) in accordance with the Securities and Exchange Commission on August 25Employer’s normal payroll practices; provided that, 2005 (whether or not Yucaipa has a controlling interest within the meaning amount of any such clause), your Stock Option shall become fully vested immediately prior to such transaction.
(d) Notwithstanding anything in this Award Agreement or the Employment Agreement payments to the contrary, in Executive shall be reduced by the event of any merger or consolidation sum of the Company amounts, if any, payable to the Executive for the same period under any other disability benefit covering the Executive that is provided by the Employer. Additionally, the Employer shall pay the Executive any bonus or other transaction following which either short-term incentive compensation earned, but not yet paid, through the Company is not the surviving corporation or the Common Stock ceases to be publicly tradeddate of termination, the Committee shall provide for:
(i) the substitution by the surviving corporation or the Company’s parent corporation for your outstanding Stock Option of stock option(s) on the same terms as your Stock Option, and which preserve(s) the economic value to you of your outstanding Stock Option; or
(ii) where all of the holders of the then outstanding Common Stock (other than Yucaipa) receive payment set forth in cash or cash equivalents in consideration for such Common Stock, the cancellation of your Stock Option upon payment to you of a per share amount in cash or cash equivalents equal to (A) the highest price paid for a share of Common Stock in such transaction, minus (B) the exercise price of your Stock OptionSection 5(b).
Appears in 1 contract
Sources: Employment Agreement (Hampton Roads Bankshares Inc)