Termination Upon a Change in Control. (a) If, within the two-year period following a Change in Control, Executive shall suffer an Involuntary Termination or a Termination Without Cause, then: (i) the Company shall pay Executive a lump sum equal to any annual salary and other benefits earned and accrued under this Agreement prior to the Termination Date (and reimbursement under this Agreement for expenses incurred prior to the Termination Date); (ii) the Company shall pay Executive an amount equal to the target Annual Bonus for the Termination Year multiplied by a fraction, the numerator of which is the number of days elapsed in the Termination Year through the Termination Date and the denominator of which is the number of days in the Termination Year; (iii) the Company shall pay Executive an amount equal to two times the Change-in-Control Severance Amount; (iv) all outstanding unvested stock options, restricted stock and other unvested equity-type interests shall vest and shall otherwise be exercisable for the greater of (1) one year after the effective date of such termination or (2) in accordance with their terms (provided, however, that the Board, in its sole discretion, may extend such exercise period, and/or modify any of the other terms and conditions of any such stock option, stock award or other equity-type award programs, on terms no less favorable to Executive than those provided for herein); (v) the Company shall forgive any and all outstanding balances on loans made by the Company to Executive to purchase the Company's stock (provided, however, that as a condition precedent to the Company's obligation to forgive such loans, the Company may withhold from other amounts payable to Executive, or require Executive to pay to the Company, the amount the Company in good ▇▇▇▇▇ ▇▇▇▇▇ necessary to satisfy the Company's obligation to withhold federal, state or local income or other taxes incurred by reason of such forgiveness of loans); (vi) the Company shall continue to provide Executive, for three years from the date of termination, with the level of health/medical insurance or coverage provided to Executive at the time of such termination; it being expressly understood and agreed that nothing in this clause (vi) shall restrict the ability of the Company to amend or terminate such plans and programs from time to time in its sole discretion; provided, however, that the Company shall in no event be required to provide any coverage after such time as Executive becomes entitled to receive benefits of the same type from another employer or recipient of Executive's services (and provided, further, that such entitlement shall be determined without regard to any individual waivers or other similar arrangements); (vii) any continued rights and benefits that Executive may have under employee benefit plans and programs of the Company upon such termination shall be determined in accordance with the terms and provisions of such plans and programs; and (viii) Executive shall have no further rights to any other compensation or benefits hereunder or granted hereunder on or after the termination of employment, or any other rights hereunder. (b) Notwithstanding the foregoing, (i) neither Good Reason nor grounds for Involuntary Termination shall be deemed to exist unless a Notice of Termination on account thereof (specifying a termination date no less than 14 days and no more than 21 days from the date of such notice) is given no later than 90 days after the time at which the event or condition purportedly giving rise to Good Reason or the Involuntary Termination first occurs or arises; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason or grounds for Involuntary Termination, the Company shall have 30 days from the date such Notice of Termination is given to remedy or cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason or grounds for Involuntary Termination, respectively, hereunder.
Appears in 3 contracts
Sources: Employment Agreement (Keystone Property Trust), Employment Agreement (Keystone Property Trust), Employment Agreement (Keystone Property Trust)
Termination Upon a Change in Control. (a) If, within the two-year period following twelve (12) months of a Change of Control pursuant to subsection 1.6(e) (Change in Control), Executive shall suffer an Involuntary Termination or a Termination Without Cause, then:
either (i) the Executive's employment is terminated by the Company shall pay Executive a lump sum equal to any annual salary and other benefits earned and accrued under this Agreement prior to the Termination Date (and reimbursement under this Agreement for expenses incurred prior to the Termination Date);
Without Cause, or (ii) if the Executive terminates his employment for Good Reason, then the Company shall pay to the Executive as severance pay and as liquidated damages (because actual damages are difficult to ascertain), in accordance with the provisions of Section 1.4 (Compensation) or in a lump sum within 15 days following the Date of Termination (at the Company's option), in cash, an amount equal to $100 less than three times the target Annual Bonus Executive's "annualized includable compensation for the Termination Year multiplied by a fractionbase period" (as defined in Section 280G of the Internal Revenue Code of 1986). Anything in this Agreement to the contrary notwithstanding and except as set forth below, the numerator of which is the number of days elapsed in the Termination Year through the Termination Date and the denominator of which is the number of days in the Termination Year;
(iii) the Company event it shall pay Executive an amount equal to two times the Change-in-Control Severance Amount;
(iv) all outstanding unvested stock options, restricted stock and other unvested equity-type interests shall vest and shall otherwise be exercisable for the greater of (1) one year after the effective date of such termination determined that any payment or (2) in accordance with their terms (provided, however, that the Board, in its sole discretion, may extend such exercise period, and/or modify any of the other terms and conditions of any such stock option, stock award or other equity-type award programs, on terms no less favorable to Executive than those provided for herein);
(v) the Company shall forgive any and all outstanding balances on loans made distribution by the Company to or for the benefit of the Executive to purchase the Company's stock (provided, however, that as a condition precedent whether paid or payable or distributed or distributable pursuant to the Company's obligation to forgive such loansterms of this Agreement or otherwise, the Company may withhold from other amounts including, but not limited to, accelerated vesting or payment of any deferred compensation, options, stock appreciation rights or any benefits payable to Executivethe Executive under any plan for the benefit of employees, or require Executive to pay to the Company, the amount the Company in good ▇▇▇▇▇ ▇▇▇▇▇ necessary to satisfy the Company's obligation to withhold federal, state or local income or other taxes incurred by reason of such forgiveness of loans);
(vi) the Company shall continue to provide Executive, for three years from the date of termination, with the level of health/medical insurance or coverage provided to Executive at the time of such termination; it being expressly understood and agreed that nothing in this clause (vi) shall restrict the ability of the Company to amend or terminate such plans and programs from time to time in its sole discretion; provided, however, that the Company shall in no event be required to provide any coverage after such time as Executive becomes entitled to receive benefits of the same type from another employer or recipient of Executive's services (and provided, further, that such entitlement shall be but determined without regard to any individual waivers or other similar arrangementsadditional payments required under this Section (a "Payment");
(vii) any continued rights and benefits that Executive may have under employee benefit plans and programs would be subject to the excise tax imposed by Section 4999 of the Company upon Code or any interest or penalties are incurred by the Executive with respect to such termination excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then the Executive shall be determined entitled to receive an additional payment (a "Gross-Up Payment") in accordance an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the terms and provisions of such plans and programs; and
(viii) Executive shall have no further rights to any other compensation or benefits hereunder or granted hereunder on or after the termination of employment, or any other rights hereunder.
(b) Notwithstanding the foregoing, (i) neither Good Reason nor grounds for Involuntary Termination shall be deemed to exist unless a Notice of Termination on account thereof (specifying a termination date no less than 14 days and no more than 21 days from the date of such notice) is given no later than 90 days after the time at which the event or condition purportedly giving rise to Good Reason or the Involuntary Termination first occurs or arises; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason or grounds for Involuntary TerminationGross-Up Payment, the Company shall have 30 days from Executive retains an amount of the date such Notice of Termination is given Gross-Up Payment equal to remedy or cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason or grounds for Involuntary Termination, respectively, hereunderExcise Tax imposed upon the Payments.
Appears in 2 contracts
Sources: Employment Agreement (Teraforce Technology Corp), Employment Agreement (Teraforce Technology Corp)
Termination Upon a Change in Control. (a) IfIf Executive’s employment with the Company is terminated, by Executive or by the Company, for any reason, or no reason, within the two-year period following a Change in ControlControl (including without limitation, Executive shall suffer an Involuntary Termination or a Termination Without CauseWith Cause or on account of death or disability), then:
(i) the Company shall pay Executive a lump sum equal to any annual salary and other benefits earned and accrued under this Agreement prior to the Termination Date (and reimbursement under this Agreement for expenses incurred prior to the Termination Date);
(ii) the Company shall pay Executive an amount equal to the target Annual Bonus for the Termination Year multiplied by a fraction, the numerator of which is the number of days elapsed in the Termination Year through the Termination Date and the denominator of which is the number of days in the Termination Year;
(iii) the Company shall pay Executive an amount equal to two three times the Change-in-Control Severance Amount;
(iv) all outstanding unvested stock options, restricted stock and other unvested equity-type interests shall vest and shall otherwise be exercisable for the greater of (1) one year after the effective date of such termination or (2) in accordance with their terms (provided, however, that the Board, in its sole discretion, may extend such exercise period, and/or modify any of the other terms and conditions of any such stock option, stock award or other equity-type award programs, on terms no less favorable to Executive than those provided for herein);
(v) the Company shall forgive any and all outstanding balances on loans made by the Company to Executive to purchase the Company's ’s stock (provided, however, that as a condition precedent to the Company's ’s obligation to forgive such loans, the Company may withhold from other amounts payable to Executive, or require Executive to pay to the Company, the amount the Company in good ▇f▇▇▇▇ ▇▇▇▇▇ necessary to satisfy the Company's ’s obligation to withhold federal, state or local income or other taxes incurred by reason of such forgiveness of loans);
(vi) the Company shall continue to provide Executive, for three years from the date of termination, with the level of health/medical insurance or coverage provided to Executive at the time of such termination; it being expressly understood and agreed that nothing in this clause (vie) shall restrict the ability of the Company to amend or terminate such plans and programs from time to time in its sole discretion; provided, however, that the Company shall in no event be required to provide any coverage after such time as Executive becomes entitled to receive benefits of the same type from another employer or recipient of Executive's ’s services (and provided, further, that such entitlement shall be determined without regard to any individual waivers or other similar arrangements);
(vii) the Company shall pay to Executive the aggregate amount of any remaining unpaid supplemental cash payments under Section B, Paragraph 4(f) hereof;
(viii) any continued rights and benefits that Executive may have under employee benefit plans and programs of the Company upon such termination shall be determined in accordance with the terms and provisions of such plans and programs; and
(viiiix) Executive shall have no further rights to any other compensation or benefits hereunder or granted hereunder on or after the termination of employment, or any other rights hereunder.
(b) Notwithstanding the foregoing, (i) neither Good Reason nor grounds for If a Change of Control occurs within one year after Executive suffers an Involuntary Termination shall be deemed to exist unless or a Notice of Termination on account thereof (specifying a termination date no less than 14 days and no more than 21 days from the date of such notice) is given no later than 90 days after the time at which the event or condition purportedly giving rise to Good Reason or the Involuntary Termination first occurs or arises; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason or grounds for Involuntary TerminationWithout Cause, then the Company shall have 30 days from pay Executive an amount equal to the date such Notice average of the dollar amounts awarded to Executive in the form of Incentive Compensation for each of the three fiscal years prior to the Termination is given to remedy or cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason or grounds for Involuntary Termination, respectively, hereunderYear.
Appears in 2 contracts
Sources: Employment Agreement (Keystone Property Trust), Employment Agreement (Keystone Property Trust)
Termination Upon a Change in Control. (a) IfIf Executive's employment with the Company is terminated, by Executive or by the Company, for any reason, or no reason, within the two-year period following a Change in ControlControl (including without limitation, Executive shall suffer an Involuntary Termination or a Termination Without CauseWith Cause or on account of death or disability), then:
(i) the Company shall pay Executive a lump sum equal to any annual salary and other benefits earned and accrued under this Agreement prior to the Termination Date (and reimbursement under this Agreement for expenses incurred prior to the Termination Date);
(ii) the Company shall pay Executive an amount equal to the target Annual Bonus for the Termination Year multiplied by a fraction, the numerator of which is the number of days elapsed in the Termination Year through the Termination Date and the denominator of which is the number of days in the Termination Year;
(iii) the Company shall pay Executive an amount equal to two three times the Change-in-Control Severance Amount;
(iv) all outstanding unvested stock options, restricted stock and other unvested equity-type interests shall vest and shall otherwise be exercisable for the greater of (1) one year after the effective date of such termination or (2) in accordance with their terms (provided, however, that the Board, in its sole discretion, may extend such exercise period, and/or modify any of the other terms and conditions of any such stock option, stock award or other equity-type award programs, on terms no less favorable to Executive than those provided for herein);
(v) the Company shall forgive any and all outstanding balances on loans made by the Company to Executive to purchase the Company's stock (provided, however, that as a condition precedent to the Company's obligation to forgive such loans, the Company may withhold from other amounts payable to Executive, or require Executive to pay to the Company, the amount the Company in good ▇▇▇▇▇ ▇▇▇▇▇ necessary to satisfy the Company's obligation to withhold federal, state or local income or other taxes incurred by reason of such forgiveness of loans);
(vi) the Company shall continue to provide Executive, for three years from the date of termination, with the level of health/medical insurance or coverage provided to Executive at the time of such termination; it being expressly understood and agreed that nothing in this clause (vie) shall restrict the ability of the Company to amend or terminate such plans and programs from time to time in its sole discretion; provided, however, that the Company shall in no event be required to provide any coverage after such time as Executive becomes entitled to receive benefits of the same type from another employer or recipient of Executive's services (and provided, further, that such entitlement shall be determined without regard to any individual waivers or other similar arrangements);
(vii) any continued rights and benefits that Executive may have under employee benefit plans and programs of the Company upon such termination shall be determined in accordance with the terms and provisions of such plans and programs; and
(viii) Executive shall have no further rights to any other compensation or benefits hereunder or granted hereunder on or after the termination of employment, or any other rights hereunder.
(b) Notwithstanding the foregoing, (i) neither Good Reason nor grounds for If a Change of Control occurs within one year after Executive suffers an Involuntary Termination shall be deemed to exist unless or a Notice of Termination on account thereof (specifying a termination date no less than 14 days and no more than 21 days from the date of such notice) is given no later than 90 days after the time at which the event or condition purportedly giving rise to Good Reason or the Involuntary Termination first occurs or arises; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason or grounds for Involuntary TerminationWithout Cause, then the Company shall have 30 days from pay Executive an amount equal to the date such Notice average of the dollar amounts awarded to Executive in the form of Incentive Compensation for each of the three fiscal years prior to the Termination is given to remedy or cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason or grounds for Involuntary Termination, respectively, hereunderYear.
Appears in 1 contract
Termination Upon a Change in Control. (a) IfIf a Change in Control occurs during the Term of this Agreement, within Executive shall be entitled to the two-year period following benefits provided in this Section 4 upon the subsequent termination of Executive's employment by the Company without Cause, the Executive's resignation for Good Reason or, if during the 7th full calendar month after the occurrence of a Change in Control, the Executive voluntarily elects to terminate his employment for any reason. The Executive's voluntary election to separate from service during the 7th full calendar month after the occurrence of a Change in Control shall be deemed a termination for Good Reason pursuant to Section 1(g), however, instead of the benefits described under Section 3, the Executive shall suffer an Involuntary be entitled to the payments and other rights described in this Section 4. Notwithstanding anything in this Agreement to the contrary, if Executive's employment terminates on account of his death or Disability, Executive shall be entitled to receive the life insurance and/or disability benefits under any life insurance policy and/or disability program maintained by the Company for similarly situated executives on the date hereof which shall cover Executive, and Executive shall not be considered to have terminated employment under this Section 4(a) and shall not be entitled to receive benefits pursuant to this Section 4; provided, if such policy or program shall be amended to provide less favorable benefits, or shall be terminated, then the Company shall procure comparable such coverage for Executive, or pay Executive such amount in cash as may be required to compensate him for the cost to purchase such coverage, as in effect immediately prior to such amendment or termination.
(b) Upon any Termination of Employment described in Section 4(a) above, Executive shall be entitled to receive only the amount due to Executive under the Company's then current severance pay plan for employees, if any. No other payments or benefits shall be due under this Agreement to Executive, but Executive shall be entitled to any benefits accrued or earned in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 4(b), in the event that Executive executes and does not revoke a Release, upon such removal or resignation, of any and all claims against the Company and all related parties with respect to all matters arising out of Executive's employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which Executive has accrued a benefit), Executive shall be entitled to receive, in lieu of the payment described in Section 4(b), the following in connection with Executive's Termination Without Cause, thenof Employment:
(i) the Company Executive shall pay Executive receive a lump sum cash payment equal to 2 times (x) Executive's Annual Base Salary in effect immediately before Executive's Termination of Employment (disregarding for this purpose any annual salary reduction in Executive's Annual Base Salary resulting in Good Reason for such Termination of Employment) and other benefits earned and accrued under this Agreement prior (y) the target bonus applicable to Executive as of the date on which Executive's Termination Date of Employment occurs. Payment shall be made within 30 days after the effective date of the termination (and reimbursement under this Agreement or the end of the revocation period for expenses incurred prior to the Termination DateRelease, if later);.
(ii) For a period of 24 months following the date of termination, Executive shall continue to receive the medical coverage in effect at the date of his termination (or comparable coverage) for himself and, where applicable, his spouse and dependents or, as an alternative, the Company shall may elect to pay Executive cash in lieu of such coverage in an amount equal to Executive's after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the target Annual Bonus tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 18 month benefit period.
(iii) A pro rated bonus for the year in which Executive's Termination Year of Employment occurs. A pro rated bonus shall be based on the Executive's annual target bonus for the year in which Executive's termination occurs, multiplied by a fraction, the numerator of which is the number of days elapsed during which Executive was employed by the Company in the Termination Year through the Termination Date year of his termination and the denominator of which is 365. Payment shall be made within 30 days after the number date of days in declaration by the Termination Year;
Board (iii) or the Company shall pay Executive an amount equal to two times end of the Change-in-Control Severance Amount;revocation period for the Release, if later).
(iv) All outstanding options held by Executive that have not previously become exercisable shall automatically accelerate and become fully exercisable. All of Executive's restricted stock, if any, shall become fully vested and payable. In addition, all outstanding unvested stock options, restricted stock and other unvested equity-type interests options which are or have become exercisable shall vest and shall otherwise be remain exercisable for the greater remaining portion of the applicable option. All such options shall remain exercisable until the earlier to occur of (1x) one year 48 months following such termination and (y) the last day of the stated option term, and shall remain outstanding with respect to shares of Company stock or shall be assumed by the successor to the Company (with appropriate adjustment to reflect the terms of the transaction).
(v) Executive shall have the right to participate in the EELP with respect to his vested options after Executive's Termination of Employment until the effective earlier to occur of (x) 48 months following such Termination and (y) the last day of the stated option term.
(vi) Executive shall receive any amounts earned, accrued or owing but not yet paid to Executive as of the date of such termination his Termination of Employment, payable in a lump sum, and any benefits accrued or (2) earned in accordance with their the terms of any applicable benefit plans and programs of the Company.
(i) Prior to or contemporaneously with the execution of this Agreement, the Company shall seek approval by the holders of more than 75% of all capital stock of ICGC outstanding as of such time ("Shareholder Approval"), of the terms of this Agreement, including approval of any payment, distribution or other benefit provided by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Payment"), which, in the reasonable judgment of the Company, would result in an "excess parachute payment" within the meaning of Section 280G of the Code if made in connection with a change in control of ICGC. In the event that Shareholder Approval is not obtained, the Company shall have no obligation to make such Payment to Executive. In the event that Shareholder Approval is obtained, the Company shall have the right to seek subsequent approval and ratification of this Agreement by the holders of ICGC stock from time to time thereafter, provided, however, that the Boardfailure to obtain any such subsequent approval or ratification shall not limit the Company's obligation to make any Payment or Gross-Up Payment (defined below) to Executive pursuant hereto.
(ii) At the time the Payment is made, in its sole discretion, may extend Executive shall be paid an additional amount (the "Gross-Up Payment") such exercise period, and/or modify that the net amount retained by Executive after deduction of any excise tax imposed under Section 4999 of the other terms Code, and conditions any federal, state and local income and employment tax and excise tax imposed upon the Gross-Up Payment shall be an amount such that the Executive will be in the same after-tax position as if no excise tax under the Code had been imposed, provided that the Gross-Up Payment results in an after-tax payment amount to the Executive at least $5,000 greater than the Executive's after-tax position without the Gross-Up Payment. In the event that the after-tax benefit is less than this $5,000 threshold amount, then the Payment will be reduced in such amount as is necessary so that no excise tax is imposed. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence (or, if greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Payment) on the relevant calculation date, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. All determinations to be made under this Section 4(d) shall be made by a nationally recognized independent public accountant selected by the Company immediately prior to the Change in Control (which may be the Company's auditors) (the "Accounting Firm"), which firm shall provide its determinations and any supporting calculations both to the Company and Executive within ten days before the date of the Payment (or any part thereof). If the Accounting Firm determines that no excise tax is payable by the Executive, it shall furnish the Company and the Executive with an opinion to the effect that there is "substantial authority" that the Payment does not constitute an "excess parachute payment." Subject to any determination of an Underpayment or Overpayment, any such determination by the Accounting Firm shall be binding upon the Company and Executive for purposes of any dispute between the parties hereto. All fees and expenses of the Accounting Firm in performing the determinations and obtaining such stock optionopinion referred to above shall be borne solely by the Company. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, stock award or other equityit is possible that the Gross-type award programs, on terms no Up Payment made will have been an amount less favorable to Executive than those provided for herein);
(v) the Company should have paid pursuant to this Section 4(d) (the "Underpayment") or an amount greater than the Company should have paid pursuant to this Section 4(d) (the "Overpayment"). In the event that it is finally determined that an Underpayment exists and the Executive is required to make a payment of any excise tax or related tax, the Gross-Up Payment shall forgive any be adjusted accordingly and all outstanding balances on loans made the shortfall shall be promptly paid by the Company to Executive or for his benefit. In the event that it is finally determined that an Overpayment exists and the Company paid a Gross-Up Payment to purchase the Company's stock (providedExecutive in excess of the amount of the Gross-Up Payment to which he is actually entitled hereunder, however, that as a condition precedent such excess shall be promptly reimbursed by the Executive to the Company's obligation . The Company agrees to forgive such loansindemnify and hold harmless the Accounting Firm of and from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 4(d), except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.
(iii) Notwithstanding anything in this Section 4(d) to the contrary, in the event that a Gross-Up Payment is payable by the Company pursuant to this Section 4(d), (x) to the extent that the Gross-Up Payment relates to equity compensation received by Executive, the Company may withhold Gross-Up Payment shall only be payable with respect to equity compensation that results from other amounts payable to Executivestock options, or require Executive to pay to the Company, the amount the Company in good ▇▇▇▇▇ ▇▇▇▇▇ necessary to satisfy the Company's obligation to withhold federal, state or local income restricted stock or other taxes incurred by reason of such forgiveness of loans);
(vi) the Company shall continue to provide Executive, for three years from the date of termination, with the level of health/medical insurance or coverage provided equity compensation grants that are made to Executive at the time of such termination; it being expressly understood upon his initial employment as Chairman and agreed Chief Executive Officer hereunder (i.e., not including any equity grants that nothing are made subsequent to grants made in this clause connection with Executive's initial employment hereunder) and (viy) shall restrict the ability of the Company to amend or terminate such plans and programs from time to time in its sole discretion; provided, however, that the Company shall in no event be required shall the aggregate Gross-Up Payments payable pursuant hereto exceed an amount equal to provide any coverage after such time as Executive becomes entitled to receive benefits 0.40% of the same type from another employer or recipient Derived Company Equity Value (as hereinafter defined). For purposes of Executive's services (and providedthis Section 4(d), furtherthe "Derived Company Equity Value" shall mean the deemed value of all outstanding shares of capital stock of ICGC on a fully-diluted basis, that such entitlement shall be determined without regard to any individual waivers or other similar arrangements);
(vii) any continued rights and benefits that Executive may have under employee benefit plans and programs of the Company upon such termination shall be determined in accordance with the terms and provisions of such plans and programs; and
(viii) Executive shall have no further rights to any other compensation or benefits hereunder or granted hereunder on or after the termination of employment, or any other rights hereunder.
(b) Notwithstanding the foregoing, (i) neither Good Reason nor grounds for Involuntary Termination shall be deemed to exist unless a Notice of Termination on account thereof (specifying a termination date no less than 14 days and no more than 21 days as derived from the date valuation used for purposes of such notice) is given no later than 90 days after the time at which the event or condition purportedly giving rise to Good Reason or the Involuntary Termination first occurs or arises; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason or grounds for Involuntary Termination, the Company shall have 30 days from the date such Notice of Termination is given to remedy or cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason or grounds for Involuntary Termination, respectively, hereundercalculating consideration in a Change in Control.
Appears in 1 contract
Sources: Severance and Change in Control Agreement (Internet Capital Group Inc)
Termination Upon a Change in Control. If the Company or any successor in interest to the Company terminates Employee’s employment without Cause in connection with or within twelve (a12) If, months after a Change in Control (defined below) or if Employee terminates her employment for Good Reason (defined below) within the two-year period following twelve (12) months after a Change in Control, Executive Employee shall suffer an Involuntary Termination or a Termination Without Cause, then:
be entitled to receive (i) the Company shall pay Executive a lump sum equal to any annual salary her accrued but unpaid Base Salary and other benefits earned under any Company-provided plans, policies and accrued under this Agreement prior to arrangements for the Termination Date (period preceding the effective date of the termination of employment, and reimbursement under this Agreement for expenses incurred prior to the Termination Date);
(ii) a lump-sum payment equal to one times Employee’s Base Salary, as then in effect, less all tax withholdings and other applicable deductions the Company shall pay Executive an amount equal reasonably determines are required to be made, payable on the target Annual Bonus for the Termination Year multiplied by a fraction, the numerator of which is the number of days elapsed in the Termination Year through the Termination Date and the denominator of which is the number of days in the Termination Year;
(iii) the Company shall pay Executive an amount equal to two times the Change-in-Control Severance Amount;
(iv) all outstanding unvested stock options, restricted stock and other unvested equity-type interests shall vest and shall otherwise be exercisable for the greater of (1) one year first regular payroll date after the effective date of such a Separation Agreement and Release that has been executed and not revoked within any applicable rescission period that has expired within seventy (70) days of the Employee’s termination or (2) in accordance with their terms (provided, however, that the Boardof employment, in its sole discretionsubstantially the form of Exhibit C attached hereto, may extend such exercise period, and/or modify the execution and performance by Employee of which is specifically a condition to her receipt of any of the other terms payments and conditions benefits provided under this Paragraph 12C; provided that Employee shall not be required to execute a release of any such stock option, stock award or other equity-type award programs, on terms no less favorable to Executive than those provided for herein);
(v) the Company shall forgive any and all outstanding balances on loans made by the Company to Executive to purchase claims arising from the Company's stock (provided, however, that as a condition precedent ’s failure to comply with its obligations under Paragraph 12A. If Employee timely and effectively elects continuation coverage under the Company's obligation ’s group health plan pursuant to forgive such loansCOBRA or similar state law, the Company may withhold from other amounts payable to Executivewill pay or reimburse the premiums for such coverage of Employee (and her dependents, or require Executive to pay to as applicable) at the Company, the amount the Company in good ▇▇▇▇▇ ▇▇▇▇▇ necessary to satisfy the Company's obligation to withhold federal, state or local income or other taxes incurred by reason of such forgiveness of loans);
same rate it pays for active employees for a period for twelve (vi12) the Company shall continue to provide Executive, for three years months from the date of termination, with the level termination of health/medical insurance or coverage employment; provided to Executive at the time of such termination; it being expressly understood and agreed that nothing in this clause (vi) shall restrict the ability of the Company to amend or terminate such plans and programs from time to time in its sole discretion; provided, however, that the Company Company’s obligation to make such payments shall in no event immediately expire if Employee ceases to be required to provide any eligible for continuation coverage after under COBRA or similar state law or otherwise terminates such time as Executive becomes entitled to receive benefits of coverage. Notwithstanding the same type from another employer or recipient of Executive's services (and provided, further, that such entitlement shall be determined without regard to any individual waivers or other similar arrangements);
(vii) any continued rights and benefits that Executive may have under employee benefit plans and programs of the Company upon such termination shall be determined in accordance with the terms and previous provisions of such plans and programs; and
this Paragraph 12C, any payments due under this Paragraph 12C shall commence within seventy (viii70) Executive shall have no further rights to any other compensation or benefits hereunder or granted hereunder on or after the days of Employee's termination of employment, or provided that if such seventy (70)-day period spans two calendar years, payments shall commence in the latter calendar year. In addition to the foregoing and subject to Employee’s timely execution of a Separation Agreement and Release that has been executed and not revoked within any other rights hereunder.
applicable rescission period that has expired within seventy (b70) Notwithstanding days of the foregoingEmployee’s termination of employment, (i) neither Good Reason nor grounds for Involuntary Termination Employee shall be deemed entitled to exist unless the pro-rated amount of any unpaid bonus for the calendar year in which her termination of employment occurs, if earned pursuant to the terms thereof and at such time and in such manner as determined by the Board (or a Notice of Termination on account committee thereof) in its sole discretion (but consistent with other bonuses determined by the Board) pursuant to the terms thereof, less any payments thereof (specifying a termination date no less than 14 days already made during such year. The payments and no more than 21 days from the date of such notice) is given no later than 90 days after the time at which the event or condition purportedly giving rise to Good Reason or the Involuntary Termination first occurs or arises; benefits described in this Paragraph 12C are in lieu of, and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason or grounds for Involuntary Terminationnot in addition to, the Company payments and benefits described in Paragraph 12B, it being understood by Employee that she shall have 30 days from the date such Notice be paid and receive only one set of Termination is given to remedy or cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason or grounds for Involuntary Termination, respectively, hereunderseverance payments and benefits.
Appears in 1 contract
Sources: Employment Agreement (Xtant Medical Holdings, Inc.)
Termination Upon a Change in Control. If the Company or any successor in interest to the Company terminates Employee’s employment without Cause in connection with or within twelve (a12) If, months after a Change in Control (defined below) or if Employee terminates his employment for Good Reason (defined below) within the two-year period following twelve (12) months after a Change in Control, Executive Employee shall suffer an Involuntary Termination or a Termination Without Cause, then:
be entitled to receive (i) the Company shall pay Executive a lump sum equal to any annual salary his accrued but unpaid Base Salary and other benefits earned under any Company-provided plans, policies and accrued under this Agreement prior to arrangements for the Termination Date (period preceding the effective date of the termination of employment, and reimbursement under this Agreement for expenses incurred prior to the Termination Date);
(ii) the Company shall pay Executive an amount equal to the target Annual Bonus for the Termination Year multiplied by a fraction, the numerator of which is the number of days elapsed in the Termination Year through the Termination Date and the denominator of which is the number of days in the Termination Year;
(iii) the Company shall pay Executive an amount lump-sum payment equal to two times the Change-in-Control Severance Amount;
(iv) Employee’s Base Salary, as then in effect, less all outstanding unvested stock options, restricted stock tax withholdings and other unvested equity-type interests shall vest and shall otherwise applicable deductions the Company reasonably determines are required to be exercisable for made, payable on the greater of (1) one year first regular payroll date after the effective date of such a Separation Agreement and Release that has been executed and not revoked within any applicable rescission period that has expired within seventy (70) days of the Employee’s termination or (2) in accordance with their terms (provided, however, that the Boardof employment, in its sole discretionsubstantially the form of Exhibit C attached hereto, may extend such exercise period, and/or modify the execution and performance by Employee of which is specifically a condition to his receipt of any of the other terms payments and conditions benefits provided under this Paragraph 12C; provided that Employee shall not be required to execute a release of any such stock option, stock award or other equity-type award programs, on terms no less favorable to Executive than those provided for herein);
(v) the Company shall forgive any and all outstanding balances on loans made by the Company to Executive to purchase claims arising from the Company's stock (provided, however, that as a condition precedent ’s failure to comply with its obligations under Paragraph 12A. If Employee timely and effectively elects continuation coverage under the Company's obligation ’s group health plan pursuant to forgive such loansCOBRA or similar state law, the Company may withhold from other amounts payable to Executivewill pay or reimburse the premiums for such coverage of Employee (and his dependents, or require Executive to pay to as applicable) at the Company, the amount the Company in good ▇▇▇▇▇ ▇▇▇▇▇ necessary to satisfy the Company's obligation to withhold federal, state or local income or other taxes incurred by reason of such forgiveness of loans);
same rate it pays for active employees for a period for twelve (vi12) the Company shall continue to provide Executive, for three years months from the date of termination, with the level termination of health/medical insurance or coverage employment; provided to Executive at the time of such termination; it being expressly understood and agreed that nothing in this clause (vi) shall restrict the ability of the Company to amend or terminate such plans and programs from time to time in its sole discretion; provided, however, that the Company Company’s obligation to make such payments shall in no event immediately expire if Employee ceases to be required to provide any eligible for continuation coverage after under COBRA or similar state law or otherwise terminates such time as Executive becomes entitled to receive benefits of coverage. Notwithstanding the same type from another employer or recipient of Executive's services (and provided, further, that such entitlement shall be determined without regard to any individual waivers or other similar arrangements);
(vii) any continued rights and benefits that Executive may have under employee benefit plans and programs of the Company upon such termination shall be determined in accordance with the terms and previous provisions of such plans and programs; and
this Paragraph 12C, any payments due under this Paragraph 12C shall commence within seventy (viii70) Executive shall have no further rights to any other compensation or benefits hereunder or granted hereunder on or after the days of Employee’s termination of employment, or provided that if such seventy (70)-day period spans two calendar years, payments shall commence in the latter calendar year. In addition to the foregoing and subject to Employee’s timely execution of a Separation Agreement and Release that has been executed and not revoked within any other rights hereunder.
applicable rescission period that has expired within seventy (b70) Notwithstanding days of the foregoingEmployee’s termination of employment, (i) neither Good Reason nor grounds for Involuntary Termination Employee shall be deemed entitled to exist unless the immediate vesting of the RSUs and the pro-rated amount of any unpaid bonus for the calendar year in which his termination of employment occurs, if earned pursuant to the terms thereof and at such time and in such manner as determined by the Board (or a Notice of Termination on account committee thereof) in its sole discretion (but consistent with other bonuses determined by the Board) pursuant to the terms thereof, less any payments thereof (specifying a termination date no less than 14 days already made during such year. The payments and no more than 21 days from the date of such notice) is given no later than 90 days after the time at which the event or condition purportedly giving rise to Good Reason or the Involuntary Termination first occurs or arises; benefits described in this Paragraph 12C are in lieu of, and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason or grounds for Involuntary Terminationnot in addition to, the Company payments and benefits described in Paragraph 12B, it being understood by Employee that he shall have 30 days from the date such Notice be paid and receive only one set of Termination is given to remedy or cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason or grounds for Involuntary Termination, respectively, hereunderseverance payments and benefits.
Appears in 1 contract
Sources: Employment Agreement (Xtant Medical Holdings, Inc.)
Termination Upon a Change in Control. (a) If, within 4.5.1 Upon the two-year period following occurrence of a Change in ControlControl of the Company during the Term, any then outstanding stock options granted to Executive shall suffer become fully exercisable, whether or not otherwise exercisable, and such options shall be fully vested.
4.5.2 Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive in connection with a Change in Control or the termination of the Executive's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called "Total Payments") would not be deductible (in whole or part) by the Company, an Involuntary Termination affiliate or Person making such payment or providing such benefit as a Termination Without Causeresult of section 280G of the Code, then:
, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of section 280G of the Code in such other plan, arrangement or agreement), the cash Severance Payments shall first be reduced (if necessary, to zero), and all other Severance Payments shall thereafter be reduced (if necessary, to zero); PROVIDED, HOWEVER, that the Executive may elect to have the noncash Severance Payments reduced (or eliminated) prior to any reduction of the cash Severance Payments. For purposes of this limitation, (i) no portion of the Company Total Payments the receipt or enjoyment of which the Executive shall pay have waived at such time and in such manner as not to constitute a "payment" within the meaning of section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to the Executive a lump sum equal to any annual salary and other benefits earned and accrued under this Agreement selected by the accounting firm which was, immediately prior to the Termination Date Change in Control of the Company, the Company's independent auditor (and reimbursement under this Agreement for expenses incurred prior the "Auditor"), does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (iii) the Severance Payments shall be reduced only to the Termination Dateextent necessary so that the Total Payments (other than those referred to in clauses (i) or (ii);
) in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions by reason of section 280G of the Code, in the opinion of Tax Counsel, and (iv) the value of any noncash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Section 4.5.2, the Total Payments paid to or for the Executive's benefit are in an amount that would result in any portion of such Total Payments being subject to the Excise Tax, then, if such repayment would result in (i) no portion of the remaining Total Payments being subject to the Excise Tax and (ii) a dollar-for- dollar reduction in the Executive's taxable income and wages for purposes of federal, state and local income and employment taxes, the Executive shall have an obligation to pay the Company shall pay Executive upon demand an amount equal to the target Annual Bonus for the Termination Year multiplied by a fraction, the numerator sum of which is the number of days elapsed in the Termination Year through the Termination Date and the denominator of which is the number of days in the Termination Year;
(iii) the Company shall pay Executive an amount equal to two times the Change-in-Control Severance Amount;
(iv) all outstanding unvested stock options, restricted stock and other unvested equity-type interests shall vest and shall otherwise be exercisable for the greater of (1) one year after the effective date of such termination or (2) in accordance with their terms (provided, however, that the Board, in its sole discretion, may extend such exercise period, and/or modify any of the other terms and conditions of any such stock option, stock award or other equity-type award programs, on terms no less favorable to Executive than those provided for herein);
(v) the Company shall forgive any and all outstanding balances on loans made by the Company to Executive to purchase the Company's stock (provided, however, that as a condition precedent to the Company's obligation to forgive such loans, the Company may withhold from other amounts payable to Executive, or require Executive to pay to the Company, the amount the Company in good ▇▇▇▇▇ ▇▇▇▇▇ necessary to satisfy the Company's obligation to withhold federal, state or local income or other taxes incurred by reason of such forgiveness of loans);
(vi) the Company shall continue to provide Executive, for three years from the date of termination, with the level of health/medical insurance or coverage provided to Executive at the time of such termination; it being expressly understood and agreed that nothing in this clause (vi) shall restrict the ability of the Company to amend or terminate such plans and programs from time to time in its sole discretion; provided, however, that the Company shall in no event be required to provide any coverage after such time as Executive becomes entitled to receive benefits of the same type from another employer or recipient of Executive's services (and provided, further, that such entitlement shall be determined without regard to any individual waivers or other similar arrangements);
(vii) any continued rights and benefits that Executive may have under employee benefit plans and programs of the Company upon such termination shall be determined in accordance with the terms and provisions of such plans and programs; and
(viii) Executive shall have no further rights to any other compensation or benefits hereunder or granted hereunder on or after the termination of employment, or any other rights hereunder.
(b) Notwithstanding the foregoing, (i) neither Good Reason nor grounds the excess of the Total Payments paid to or for Involuntary Termination shall be deemed the Executive's benefit over the Total Payments that could have been paid to exist unless a Notice of Termination on account thereof (specifying a termination date no less than 14 days and no more than 21 days from or for the date Executive's benefit without any portion of such notice) is given no later than 90 days after Total Payments being subject to the time at which the event or condition purportedly giving rise to Good Reason or the Involuntary Termination first occurs or arisesExcise Tax; and (ii) if there exists (without regard to this interest on the amount set forth in clause (ii)i) an event or condition that constitutes Good Reason or grounds for Involuntary Termination, of this sentence at the Company shall have 30 days rate provided in section 1274(b)(2)(B) of the Code from the date of the Executive's receipt of such Notice excess until the date of Termination is given to remedy or cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason or grounds for Involuntary Termination, respectively, hereunderpayment.
Appears in 1 contract
Termination Upon a Change in Control. If (ax) Ifthe Company terminates Executive’s employment hereunder without Cause, within (y) Executive terminates Executive’s employment for Good Reason or (z) the twoCompany delivers a notice of non-year period following a renewal, in each case in connection with or after the occurrence of the Change in Control, Executive shall suffer an Involuntary Termination or a Termination Without Cause, thenbe entitled only to the following:
(i) the Company shall pay Executive a lump sum equal to any annual salary and other benefits earned and accrued under this Agreement prior to the Standard Termination Date (and reimbursement under this Agreement for expenses incurred prior to the Termination Date)Payments;
(ii) the Company continued payment of the Base Salary (as determined pursuant to Section 3(a)) for one year (such sums to be paid at the times and in the amounts such Base Salary would have been paid had Executive’s employment not terminated); provided, however, that if necessary to comply with Section 409A(a)(2)(B)(i) of the Code and applicable administrative guidance and regulations, the payment of such sums shall pay Executive be made as follows: (A) no payments shall be made for a six-month period following the date of termination, (B) an amount equal to six months of Base Salary shall be paid in a lump sum six months following the target Annual Bonus for date of termination, and (C) during the Termination Year multiplied by a fractionperiod beginning six months following the date of termination through the remainder of the twelve-month period, payment of the numerator of which is Base Salary shall be made at the number of days elapsed times and in the Termination Year through the Termination Date and the denominator of which is the number of days in the Termination Yearamounts such Base Salary would have been paid had Executive’s employment not terminated;
(iii) the Company shall pay Executive an amount equal payment of any accrued but unpaid Annual Bonuses with respect to two times the Change-in-Control Severance Amountprior full calendar year as determined by the Compensation Committee in good faith and payable in cash and vested stock (as applicable) at the time described in Section 3(b);
(iv) all outstanding unvested stock options, restricted stock and other unvested equity-type interests shall vest and shall otherwise be exercisable a pro rata portion of any Annual Bonuses under Section 3(b) for the greater year of termination based on the number of days employed during such year, calculated based on the targets set forth in Section 3(b) and payable in cash and vested stock (1as applicable) one year after within 30 days of the effective date of such termination or (2) in accordance with their terms (provided, however, that the Board, in its sole discretion, may extend such exercise period, and/or modify any of the other terms and conditions of any such stock option, stock award or other equity-type award programs, on terms no less favorable to Executive than those provided for herein);termination; and
(v) to have the Company shall forgive any take all such action as is necessary such that all stock options and all outstanding balances on loans made by the Company restricted stock grants to Executive to purchase shall, immediately and irrevocably vest and become exercisable as of the Company's stock date of termination and shall remain exercisable for a period of not less than one (provided, however, that as a condition precedent to the Company's obligation to forgive such loans, the Company may withhold from other amounts payable to Executive, or require Executive to pay to the Company, the amount the Company in good ▇▇▇▇▇ ▇▇▇▇▇ necessary to satisfy the Company's obligation to withhold federal, state or local income or other taxes incurred by reason of such forgiveness of loans);
(vi1) the Company shall continue to provide Executive, for three years year from the date of termination, with the level of health/medical insurance or coverage provided to Executive at the time of such termination; it being expressly understood and agreed that nothing in this clause (vi) shall restrict the ability of the Company to amend or terminate such plans and programs from time to time in its sole discretion; provided, however, that the Company shall in no event be required to provide any coverage after such time as Executive becomes entitled to receive benefits of the same type from another employer or recipient of Executive's services (and provided, further, that such entitlement shall be determined without regard to any individual waivers or other similar arrangements);
(vii) any continued rights and benefits that Executive may have under employee benefit plans and programs of the Company upon such termination shall be determined in accordance with the terms and provisions of such plans and programs; and
(viii) Executive shall have no further rights to any other compensation or benefits hereunder or granted hereunder on or after the termination of employment, or any other rights hereunder.
(b) Notwithstanding the foregoing, (i) neither Good Reason nor grounds for Involuntary Termination shall be deemed to exist unless a Notice of Termination on account thereof (specifying a termination date no less than 14 days and no more than 21 days from the date of such notice) is given no later than 90 days after the time at which the event or condition purportedly giving rise to Good Reason or the Involuntary Termination first occurs or arises; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason or grounds for Involuntary Termination, the Company shall have 30 days from the date such Notice of Termination is given to remedy or cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason or grounds for Involuntary Termination, respectively, hereunder.
Appears in 1 contract
Termination Upon a Change in Control. (a) If, within during the two-year period Employment Period (but not following the expiration of the Employment Period), Officer’s employment is terminated in a Termination Upon a Change in Control, Executive Corporation shall suffer an Involuntary Termination pay or a Termination Without Causeprovide Officer (in addition to the payments and entitlements in Section 4(a)) the following benefits, thensubject to tax withholding and other authorized deductions:
(i) the Company Corporation shall pay Executive Officer, at the time specified in Section 4(e), a lump sum equal to any annual salary and other benefits earned and accrued under this Agreement prior to the Termination Date (and reimbursement under this Agreement for expenses incurred prior to the Termination Date);
(ii) the Company shall pay Executive an cash amount equal to the target Annual Officer’s Target Bonus for the year in which the Date of Termination Year multiplied by a fractionoccurs, the numerator of which is the number of days elapsed in the Termination Year through the Termination Date and the denominator of which is pro-rated based on the number of days in such year that had elapsed as of the Date of Termination.
(ii) Corporation shall pay to Officer, at the time specified in Section 4(e), a lump sum cash severance payment equal to the sum of (x) three (3) times Officer’s Base Salary (at the greater of the highest annualized rate in effect in the year preceding the Date of Termination Year;or the year in which the Date of Termination occurs), plus (y) three (3) times the greater of Officer’s Target Bonus for the year in which the Date of Termination occurs or the highest annual bonus received by Officer in the three (3) years immediately prior to the Change in Control (for purposes of the foregoing clause, Corporation and Officer hereby agree that Officer’s annual bonus for the year 2004 was $1 million).
(iii) For a period of three (3) years following the Company shall pay Executive an amount equal to two times the Change-in-Control Severance Amount;
(iv) all outstanding unvested stock optionsDate of Termination, restricted stock and other unvested equity-type interests shall vest and shall otherwise be exercisable for the greater of (1) one year after the effective date of such termination or (2) in accordance with their terms (provided, however, that the Board, in its sole discretion, may extend such exercise period, and/or modify any of the other terms and conditions of any such stock option, stock award or other equity-type award programs, on terms no less favorable to Executive than those provided for herein);
(v) the Company shall forgive any and all outstanding balances on loans made by the Company to Executive to purchase the Company's stock (provided, however, that as a condition precedent to the Company's obligation to forgive such loans, the Company may withhold from other amounts payable to Executive, or require Executive to pay to the Company, the amount the Company in good ▇▇▇▇▇ ▇▇▇▇▇ necessary to satisfy the Company's obligation to withhold federal, state or local income or other taxes incurred by reason of such forgiveness of loans);
(vi) the Company Corporation shall continue to provide ExecutiveOfficer and Officer’s eligible family members, for three years from based on the cost sharing arrangement between Officer and Corporation on the date of terminationthe Change in Control, with medical and dental health benefits at least equal in the level of health/medical insurance or coverage aggregate to those which would have been provided to Executive Officer and Officer’s eligible family members if Officer’s employment had not been terminated or, if more favorable to Officer, as in effect generally at the any time of such termination; it being expressly understood and agreed that nothing in this clause (vi) shall restrict the ability of the Company to amend or terminate such plans and programs from time to time in its sole discretionthereafter; provided, however, that if Officer becomes re-employed with another employer and he and his dependents are eligible to receive medical and dental health benefits under another employer’s plans, Corporation’s obligations under this Section 4(b)(iii) shall be reduced to the Company extent comparable benefits with respect to Officer and his dependents are actually received by Officer following Officer’s termination, and any such benefits actually received by Officer shall be reported by Officer to Corporation. In the event Officer and his dependents are or become ineligible under the terms of such benefit plans or programs to continue to be so covered through the end of the three-year period following the Date of Termination, in such event, Corporation shall provide Officer and his dependents with substantially equivalent coverage through other sources or shall provide Officer with a lump sum payment in such amount that, after all taxes on that amount, shall be equal to the cost to Officer of providing Officer such benefit coverage until the end of such period. The lump sum payment shall be determined on a present value basis using the interest rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the “Code”) on the Date of Termination (the “Interest Rate”). In addition, during the three-year period following the Date of Termination, Corporation shall continue to pay the premiums for the term life insurance policy described in Section 3(c)(iii) above. At the end of the three-year period following the Date of Termination, Officer, Officer’s spouse and Officer’s dependents shall be entitled to continuation coverage pursuant to Section 4980B of the Code, Sections 601-608 of the Employee Retirement Income Security Act of 1974, as amended, and under any other applicable law, to the extent required by such laws, as if Officer had then terminated employment with Corporation. To the extent that the foregoing medical and dental benefits are taxable to Officer, any medical or dental reimbursement payments shall be paid to Officer on or before the last day of Officer’s taxable year following the taxable year in which the expense was incurred and the payment of any tax-gross up payments shall be paid to Officer on or before the last day of the end of Officer’s taxable year following the taxable year in which Officer (or the Corporation) pays or remits the related taxes. The medical and dental benefits and payment of term life insurance premiums described herein are not subject to liquidation or exchange for another benefit. The amount of the foregoing benefits that the Officer receives in one taxable year shall not affect the amount of the foregoing benefits that the Officer receives in any other taxable year.
(iv) Officer shall be fully vested in Officer’s accrued benefits under any qualified or nonqualified pension, profit sharing, deferred compensation or supplemental plans maintained by Corporation for Officer’s benefit, except to the extent the acceleration of vesting of such benefits would violate any applicable law or require Corporation to accelerate the vesting of the accrued benefits of all participants in such plan or plans, in which case Corporation shall pay Officer a payment at the time such benefit would have otherwise been paid pursuant to the applicable plan in an amount equal to the value of such accrued benefits that would have become vested but for the application of the preceding clause, plus Corporation shall pay Officer at the time specified in Section 4(e) an amount equal to the present value (calculated using the Interest Rate) of the amounts Corporation would have contributed to Officer’s account under Corporation’s 401(k) plan as a matching contribution had Officer remained employed by Corporation for three (3) years after Officer’s Date of Termination and had Officer made the maximum elected deferral contributions (based on the 401(k) contribution formula and plan limits in effect on the Date of Termination).
(v) Officer shall be entitled to accelerated vesting as of the Date of Termination of any then-outstanding awards granted to Officer under Corporation’s stock and other equity and long-term incentive plans (to the extent such awards have not previously become vested). Any stock options that are then vested (including any that become vested pursuant to the preceding sentence) and that are granted to Officer on or after the Effective Date shall, notwithstanding any provision of any applicable plan or award agreement, remain exercisable until the later of (x) three (3) years after the Date of Termination or (y) the date specified in the applicable plan or award agreement; provided in no event shall any stock option be required exercisable beyond its original expiration date. Notwithstanding the foregoing two sentences, any equity-based awards that are subject to provide any coverage after forfeiture and/or vesting requirements based on the satisfaction of performance-based criteria, to the extent that such time awards are outstanding as Executive becomes entitled to receive benefits of the Date of Termination, shall continue to be governed by the provisions of the applicable award agreement in the circumstances; provided, however, that to the extent that any such then-outstanding equity-based awards are subject to forfeiture and/or vesting requirements based on the passage of time, such awards shall be fully accelerated with respect to such time-based forfeiture and/or vesting provisions.
(vi) Corporation shall furnish Officer for six (6) years following the Date of Termination (without reference to whether the Employment Period continues in effect) with directors’ and officers’ liability insurance insuring Officer against insurable events which occur or have occurred while Officer was a director or officer of Corporation, such insurance to have policy limits aggregating not less than the amount in effect immediately prior to the Change in Control, and otherwise to be in substantially the same type form and to contain substantially the same terms, conditions and exceptions as the liability issuance policies provided for officers and directors of Corporation in force from another employer or recipient of Executive's services (time to time, provided, however, that such terms, conditions and exceptions shall not be, in the aggregate, materially less favorable to Officer than those in effect on the Effective Date; provided, further, that if the aggregate annual premiums for such entitlement insurance at any time during such period exceed one hundred and fifty percent (150%) of the per annum rate of premium currently paid by Corporation for such insurance, then Corporation shall provide the maximum coverage that will then be determined without regard available at an annual premium equal to any individual waivers or other similar arrangements);one hundred and fifty percent (150%) of such rate.
(vii) In any continued rights situation where under applicable law Corporation has the power to indemnify (or advance expenses to) Officer in respect of any judgments, fines, settlements, loss, cost or expense (including attorneys’ fees) of any nature related to or arising out of Officer’s activities as an agent, employee, officer or director of Corporation or in any other capacity on behalf of or at the request of Corporation, Corporation shall promptly on written request, indemnify (and benefits that Executive may advance expenses to) Officer to the fullest extent permitted by applicable law, including but not limited to making such findings and determinations and taking any and all such actions as Corporation may, under applicable law, be permitted to have the discretion to take so as to effectuate such indemnification or advancement. Such agreement by Corporation shall not be deemed to impair any other obligation of Corporation respecting Officer’s indemnification (or advancement of expenses) otherwise arising out of this or any other agreement or promise of Corporation or under employee benefit plans and programs any corporate governance document of the Company upon such termination shall be determined in accordance with the terms and provisions of such plans and programs; andCorporation or under statute or applicable law.
(viii) Executive (A) Anything in this Agreement to the contrary notwithstanding, if it shall have no further rights be determined that any payment, entitlement, benefit or distribution to Officer or for Officer’s benefit (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise and whether pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, restricted stock, restricted stock unit, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing) (the “Payments”) would be subject to the excise tax imposed by Section 4999 of the Code or to any similar tax imposed by federal, state or local law or any interest or penalties imposed with respect to such excise or other compensation similar tax (such tax or benefits hereunder taxes, together with any such interest or granted hereunder on or penalties, are collectively referred to as the “Excise Tax”), then Officer shall, be entitled to receive from Corporation an additional payment (the “Gross-Up Payment”) in an amount such that the net amount of the Payments and the Gross-Up Payment retained by Officer after the termination calculation and deduction of employmentall Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the Payment and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section 4(b)(viii), and taking into account any other rights hereunder.
(b) Notwithstanding lost or reduced tax deductions on account of the foregoingGross-Up Payment, (i) neither Good Reason nor grounds for Involuntary Termination shall be deemed equal to exist unless a Notice of Termination on account thereof (specifying a termination date no less than 14 days and no more than 21 days from the date of such notice) is given no later than 90 days after the time at which the event or condition purportedly giving rise to Good Reason or the Involuntary Termination first occurs or arises; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason or grounds for Involuntary Termination, the Company shall have 30 days from the date such Notice of Termination is given to remedy or cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason or grounds for Involuntary Termination, respectively, hereunder.Payments;
Appears in 1 contract
Sources: Employment Agreement (Hcp, Inc.)
Termination Upon a Change in Control. If the Company or any successor in interest to the Company terminates Employee’s employment without Cause after July 2, 2023 and in connection with or within twelve (a12) Ifmonths after a Change in Control (defined below) or if Employee terminates his employment for Good Reason (defined below) after July 2, 2023 and within the two-year period following twelve (12) months after a Change in Control, Executive Employee shall suffer an Involuntary Termination or a Termination Without Cause, then:
be entitled to receive (i) the Company shall pay Executive a lump sum equal to any annual salary his accrued but unpaid Base Salary and other benefits earned under any Company-provided plans, policies and accrued under this Agreement prior to arrangements for the Termination Date (period preceding the effective date of the termination of employment, and reimbursement under this Agreement for expenses incurred prior to the Termination Date);
(ii) a lump-sum payment equal to one times Employee’s Base Salary, as then in effect, less all tax withholdings and other applicable deductions the Company shall pay Executive an amount equal reasonably determines are required to be made, payable on the target Annual Bonus for the Termination Year multiplied by a fraction, the numerator of which is the number of days elapsed in the Termination Year through the Termination Date and the denominator of which is the number of days in the Termination Year;
(iii) the Company shall pay Executive an amount equal to two times the Change-in-Control Severance Amount;
(iv) all outstanding unvested stock options, restricted stock and other unvested equity-type interests shall vest and shall otherwise be exercisable for the greater of (1) one year first regular payroll date after the effective date of such a Separation Agreement and Release that has been executed and not revoked within any applicable rescission period that has expired within sixty (60) days of the Employee’s termination or (2) in accordance with their terms (provided, however, that the Boardof employment, in its sole discretionsubstantially the form of Exhibit C attached hereto, may extend such exercise period, and/or modify the execution and performance by Employee of which is specifically a condition to his receipt of any of the other terms payments and conditions of any such stock option, stock award or other equity-type award programs, on terms no less favorable to Executive than those benefits provided for herein);
(v) the Company shall forgive any under this Paragraph 12C. If Employee timely and all outstanding balances on loans made by the Company to Executive to purchase effectively elects continuation coverage under the Company's stock (provided, however, that as a condition precedent ’s group health plan pursuant to the Company's obligation to forgive such loansCOBRA or similar state law, the Company may withhold from other amounts payable to Executivewill pay or reimburse the premiums for such coverage of Employee (and his dependents, or require Executive to pay to the Company, the amount the Company in good ▇▇▇▇▇ ▇▇▇▇▇ necessary to satisfy the Company's obligation to withhold federal, state or local income or other taxes incurred by reason of such forgiveness of loans);
as applicable) that exceed what Employee would have paid as an active employee for a period for twelve (vi12) the Company shall continue to provide Executive, for three years months from the date of termination, with the level termination of health/medical insurance or coverage employment; provided to Executive at the time of such termination; it being expressly understood and agreed that nothing in this clause (vi) shall restrict the ability of the Company to amend or terminate such plans and programs from time to time in its sole discretion; provided, however, that the Company Company’s obligation to make such payments shall in no event immediately expire if Employee ceases to be required to provide any eligible for continuation coverage after under COBRA or similar state law or otherwise terminates such time as Executive becomes entitled to receive benefits of coverage. Notwithstanding the same type from another employer or recipient of Executive's services (and provided, further, that such entitlement shall be determined without regard to any individual waivers or other similar arrangements);
(vii) any continued rights and benefits that Executive may have under employee benefit plans and programs of the Company upon such termination shall be determined in accordance with the terms and previous provisions of such plans and programs; and
this Paragraph 12C, any payments due under this Paragraph 12C shall commence within sixty (viii60) Executive shall have no further rights to any other compensation or benefits hereunder or granted hereunder on or after the days of Employee’s termination of employment, or provided that if such sixty (60)-day period spans two calendar years, payments shall commence in the latter calendar year. In addition to the foregoing and subject to Employee’s timely execution of a Separation Agreement and Release that has been executed and not revoked within any other rights hereunder.
applicable rescission period that has expired within sixty (b60) Notwithstanding days of the foregoingEmployee’s termination of employment, (i) neither Good Reason nor grounds for Involuntary Termination Employee shall be deemed entitled to exist unless a Notice the pro-rated amount of Termination on account any unpaid bonus for the calendar year in which his termination of employment occurs, if earned pursuant to the terms thereof (specifying a termination date no less than 14 days and no more than 21 days from except for the provision of remaining an employee through the date of payment thereof) and at such noticetime and in such manner as determined by the Board (or a committee thereof) is given in its sole discretion pursuant to the terms thereof, provided such bonus shall be paid no later than 90 days as soon as reasonably practicable after the time at earlier of the filing of the Company’s Annual Report on Form 10-K with the SEC and December 31 of the calendar year immediately following the calendar year in which the event or condition purportedly giving rise to Good Reason or the Involuntary Termination first occurs or arises; bonus is being measured. The payments and (ii) if there exists (without regard to benefits described in this clause (ii)) an event or condition that constitutes Good Reason or grounds for Involuntary TerminationParagraph 12C are in lieu of, and not in addition to, the Company payments and benefits described in Paragraph 12B, it being understood by Employee that he shall have 30 days from the date such Notice be paid and receive only one set of Termination severance payments and benefits. This Paragraph 12C is given inapplicable and has no effect prior to remedy or cure such event or condition andJuly 2, if the Company does so, such event or condition shall not constitute Good Reason or grounds for Involuntary Termination, respectively, hereunder2023.
Appears in 1 contract
Sources: Employment Agreement (Xtant Medical Holdings, Inc.)
Termination Upon a Change in Control. If the Company or any successor in interest to the Company terminates Employee’s employment without Cause in connection with or within twelve (a12) If, months after a Change in Control (defined below) or if Employee terminates his employment for Good Reason (defined below) within the two-year period following twelve (12) months after a Change in Control, Executive Employee shall suffer an Involuntary Termination or a Termination Without Cause, then:
be entitled to receive (i) the Company shall pay Executive a lump sum equal to any annual salary his accrued but unpaid Base Salary and other benefits earned under any Company-provided plans, policies and accrued under this Agreement prior to arrangements for the Termination Date (period preceding the effective date of the termination of employment, and reimbursement under this Agreement for expenses incurred prior to the Termination Date);
(ii) a lump-sum payment equal to one times Employee’s Base Salary, as then in effect, less all tax withholdings and other applicable deductions the Company shall pay Executive an amount equal reasonably determines are required to be made, payable on the target Annual Bonus for the Termination Year multiplied by a fraction, the numerator of which is the number of days elapsed in the Termination Year through the Termination Date and the denominator of which is the number of days in the Termination Year;
(iii) the Company shall pay Executive an amount equal to two times the Change-in-Control Severance Amount;
(iv) all outstanding unvested stock options, restricted stock and other unvested equity-type interests shall vest and shall otherwise be exercisable for the greater of (1) one year first regular payroll date after the effective date of such a Separation Agreement and Release that has been executed and not revoked within any applicable rescission period that has expired within sixty (60) days of the Employee’s termination or (2) in accordance with their terms (provided, however, that the Boardof employment, in its sole discretionsubstantially the form of Exhibit C attached hereto, may extend such exercise period, and/or modify the execution and performance by Employee of which is specifically a condition to his receipt of any of the other terms payments and conditions of any such stock option, stock award or other equity-type award programs, on terms no less favorable to Executive than those benefits provided for herein);
(v) the Company shall forgive any under this Paragraph 12C. If Employee timely and all outstanding balances on loans made by the Company to Executive to purchase effectively elects continuation coverage under the Company's stock (provided, however, that as a condition precedent ’s group health plan pursuant to the Company's obligation to forgive such loansCOBRA or similar state law, the Company may withhold from other amounts payable to Executivewill pay or reimburse the premiums for such coverage of Employee (and his dependents, or require Executive to pay to the Company, the amount the Company in good ▇▇▇▇▇ ▇▇▇▇▇ necessary to satisfy the Company's obligation to withhold federal, state or local income or other taxes incurred by reason of such forgiveness of loans);
as applicable) that exceed what Employee would have paid as an active employee for a period for twelve (vi12) the Company shall continue to provide Executive, for three years months from the date of termination, with the level termination of health/medical insurance or coverage employment; provided to Executive at the time of such termination; it being expressly understood and agreed that nothing in this clause (vi) shall restrict the ability of the Company to amend or terminate such plans and programs from time to time in its sole discretion; provided, however, that the Company Company’s obligation to make such payments shall in no event immediately expire if Employee ceases to be required to provide any eligible for continuation coverage after under COBRA or similar state law or otherwise terminates such time as Executive becomes entitled to receive benefits of coverage. Notwithstanding the same type from another employer or recipient of Executive's services (and provided, further, that such entitlement shall be determined without regard to any individual waivers or other similar arrangements);
(vii) any continued rights and benefits that Executive may have under employee benefit plans and programs of the Company upon such termination shall be determined in accordance with the terms and previous provisions of such plans and programs; and
this Paragraph 12C, any payments due under this Paragraph 12C shall commence within sixty (viii60) Executive shall have no further rights to any other compensation or benefits hereunder or granted hereunder on or after the days of Employee’s termination of employment, or provided that if such sixty (60)-day period spans two calendar years, payments shall commence in the latter calendar year. In addition to the foregoing and subject to Employee’s timely execution of a Separation Agreement and Release that has been executed and not revoked within any other rights hereunder.
applicable rescission period that has expired within sixty (b60) Notwithstanding days of the foregoingEmployee’s termination of employment, (i) neither Good Reason nor grounds for Involuntary Termination Employee shall be deemed entitled to exist unless a Notice the pro-rated amount of Termination on account any unpaid bonus for the calendar year in which his termination of employment occurs, if earned pursuant to the terms thereof (specifying a termination date no less than 14 days and no more than 21 days from except for the provision of remaining an employee through the date of payment thereof) and at such noticetime and in such manner as determined by the Board (or a committee thereof) is given in its sole discretion pursuant to the terms thereof, provided such bonus shall be paid no later than 90 days as soon as reasonably practicable after the time at earlier of the filing of the Company’s Annual Report on Form 10-K with the SEC and December 31 of the calendar year immediately following the calendar year in which the event or condition purportedly giving rise to Good Reason or the Involuntary Termination first occurs or arises; bonus is being measured. The payments and (ii) if there exists (without regard to benefits described in this clause (ii)) an event or condition that constitutes Good Reason or grounds for Involuntary TerminationParagraph 12C are in lieu of, and not in addition to, the Company payments and benefits described in Paragraph 12B, it being understood by Employee that he shall have 30 days from the date such Notice be paid and receive only one set of Termination is given to remedy or cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason or grounds for Involuntary Termination, respectively, hereunderseverance payments and benefits.
Appears in 1 contract
Sources: Employment Agreement (Xtant Medical Holdings, Inc.)
Termination Upon a Change in Control. If the Company or any successor in interest to the Company terminates Employee’s employment without Cause in connection with or within twelve (a12) If, months after a Change in Control (defined below) or if Employee terminates his employment for Good Reason (defined below) within the two-year period following twelve (12) months after a Change in Control, Executive Employee shall suffer an Involuntary Termination or a Termination Without Cause, then:
be entitled to receive (i) the Company shall pay Executive a lump sum equal to any annual salary his accrued but unpaid Base Salary and other benefits earned under any Company-provided plans, policies and accrued under this Agreement prior to arrangements for the Termination Date (period preceding the effective date of the termination of employment, and reimbursement under this Agreement for expenses incurred prior to the Termination Date);
(ii) a lump-sum payment equal to one time Employee’s Base Salary, as then in effect, less all tax withholdings and other applicable deductions the Company shall pay Executive an amount equal reasonably determines are required to be made, payable on the target Annual Bonus for the Termination Year multiplied by a fraction, the numerator of which is the number of days elapsed in the Termination Year through the Termination Date and the denominator of which is the number of days in the Termination Year;
(iii) the Company shall pay Executive an amount equal to two times the Change-in-Control Severance Amount;
(iv) all outstanding unvested stock options, restricted stock and other unvested equity-type interests shall vest and shall otherwise be exercisable for the greater of (1) one year first regular payroll date after the effective date of such a Separation Agreement and Release that has been executed and not revoked within any applicable rescission period that has expired within sixty (60) days of the Employee’s termination or (2) in accordance with their terms (provided, however, that the Boardof employment, in its sole discretionsubstantially the form of Exhibit C attached hereto, may extend such exercise period, and/or modify the execution and performance by Employee of which is specifically a condition to his receipt of any of the other terms payments and conditions benefits provided under this Paragraph 12C; provided that Employee shall not be required to execute a release of any such stock option, stock award or other equity-type award programs, on terms no less favorable to Executive than those provided for herein);
(v) the Company shall forgive any and all outstanding balances on loans made by the Company to Executive to purchase claims arising from the Company's stock (provided, however, that as a condition precedent ’s failure to comply with its obligations under Paragraph 12A. If Employee timely and effectively elects continuation coverage under the Company's obligation ’s group health plan pursuant to forgive such loansCOBRA or similar state law, the Company may withhold from other amounts payable to Executivewill pay or reimburse the premiums for such coverage of Employee (and his dependents, or require Executive to pay to as applicable) at the Company, the amount the Company in good ▇▇▇▇▇ ▇▇▇▇▇ necessary to satisfy the Company's obligation to withhold federal, state or local income or other taxes incurred by reason of such forgiveness of loans);
same rate it pays for active employees for a period for twelve (vi12) the Company shall continue to provide Executive, for three years months from the date of termination, with the level termination of health/medical insurance or coverage employment; provided to Executive at the time of such termination; it being expressly understood and agreed that nothing in this clause (vi) shall restrict the ability of the Company to amend or terminate such plans and programs from time to time in its sole discretion; provided, however, that the Company Company’s obligation to make such payments shall in no event immediately expire if Employee ceases to be required to provide any eligible for continuation coverage after under COBRA or similar state law or otherwise terminates such time as Executive becomes entitled to receive benefits of coverage. Notwithstanding the same type from another employer or recipient of Executive's services (and provided, further, that such entitlement shall be determined without regard to any individual waivers or other similar arrangements);
(vii) any continued rights and benefits that Executive may have under employee benefit plans and programs of the Company upon such termination shall be determined in accordance with the terms and previous provisions of such plans and programs; and
this Paragraph 12C, any payments due under this Paragraph 12C shall commence within sixty (viii60) Executive shall have no further rights to any other compensation or benefits hereunder or granted hereunder on or after the days of Employee’s termination of employment, or provided that if such sixty (60)-day period spans two calendar years, payments shall commence in the latter calendar year. In addition to the foregoing and subject to Employee’s timely execution of a Separation Agreement and Release that has been executed and not revoked within any other rights hereunder.
applicable rescission period that has expired within sixty (b60) Notwithstanding days of the foregoing, (i) neither Good Reason nor grounds for Involuntary Termination Employee’s termination of employment„ Employee shall be deemed entitled to exist unless a Notice the pro-rated amount of Termination on account any unpaid bonus for the calendar year in which his termination of employment occurs, if earned pursuant to the terms thereof (specifying a termination date no less than 14 days and no more than 21 days from except for the provision of remaining an employee through the date of payment thereof) and at such noticetime and in such manner as determined by the Board (or a committee thereof) is given no later than 90 days after in its sole discretion pursuant to the time at which the event or condition purportedly giving rise to Good Reason or the Involuntary Termination first occurs or arises; terms thereof, less any payments thereof already made during such year. The payments and (ii) if there exists (without regard to benefits described in this clause (ii)) an event or condition that constitutes Good Reason or grounds for Involuntary TerminationParagraph 12C are in lieu of, and not in addition to, the Company payments and benefits described in Paragraph 12B, it being understood by Employee that he shall have 30 days from the date such Notice be paid and receive only one set of Termination is given to remedy or cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason or grounds for Involuntary Termination, respectively, hereunderseverance payments and benefits.
Appears in 1 contract
Sources: Employment Agreement (Xtant Medical Holdings, Inc.)
Termination Upon a Change in Control. (a) If, within the two-year period following a Change in Control, Executive shall suffer an Involuntary Termination or a Termination Without Cause, then:
(i) the Company shall pay Executive a lump sum equal to any annual salary and other benefits earned and accrued under this Agreement prior to the Termination Date (and reimbursement under this Agreement for expenses incurred prior to the Termination Date);
(ii) the Company shall pay Executive an amount equal to the target Annual Bonus for the Termination Year multiplied by a fraction, the numerator of which is the number of days elapsed in the Termination Year through the Termination Date and the denominator of which is the number of days in the Termination Year;
(iii) the Company shall pay Executive an amount equal to two times the Change-in-Control Severance Amount;
(iv) all outstanding unvested stock options, restricted stock and other unvested equity-type interests shall vest and shall otherwise be exercisable for the greater of (1) one year after the effective date of such termination or (2) in accordance with their terms (provided, however, that the Board, in its sole discretion, may extend such exercise period, and/or modify any of the other terms and conditions of any such stock option, stock award or other equity-type award programs, on terms no less favorable to Executive than those provided for herein);
(v) the Company shall forgive any and all outstanding balances on loans made by the Company to Executive to purchase the Company's stock (provided, however, that as a condition precedent to the Company's obligation to forgive such loans, the Company may withhold from other amounts payable to Executive, or require Executive to pay to the Company, the amount the Company in good ▇▇▇▇▇ ▇▇▇▇▇ necessary to satisfy the Company's obligation to withhold federal, state or local income or other taxes incurred by reason of such forgiveness of loans);
(vi) the Company shall continue to provide Executive, for three years from the date of termination, with the level of health/medical insurance or coverage provided to Executive at the time of such termination; it being expressly understood and agreed that nothing in this clause (vi) shall restrict the ability of the Company to amend or terminate such plans and programs from time to time in its sole discretion; provided, however, that the Company shall in no event be required to provide any coverage after such time as Executive becomes entitled to receive benefits of the same type from another employer or recipient of Executive's services (and provided, further, that such entitlement shall be determined without regard to any individual waivers or other similar arrangements);
(vii) any continued rights and benefits that Executive may have under employee benefit plans and programs of the Company upon such termination shall be determined in accordance with the terms and provisions of such plans and programs; and
(viii) Executive shall have no further rights to any other compensation or benefits hereunder or granted hereunder on or after the termination of employment, or any other rights hereunder.
(b) Notwithstanding the foregoing, (i) neither Good Reason nor grounds for Involuntary Termination shall be deemed to exist unless a Notice of Termination on account thereof (specifying a termination date no less than 14 days and no more than 21 days from the date of such notice) is given no later than 90 days after the time at which the event or condition purportedly giving rise to Good Reason or the Involuntary Termination first occurs or arises; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason or grounds for Involuntary Termination, the Company shall have 30 days from the date such Notice of Termination is given to remedy or cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason or grounds for Involuntary Termination, respectively, hereunder.
(c) If a Change in Control occurs during the Employment Term, then the provisions of this Section B, Paragraph 9 shall survive the termination of the Employment Term and continue in effect until the expiration of the two-year period following such Change in Control.
Appears in 1 contract
Termination Upon a Change in Control. If the Company or any successor in interest to the Company terminates Employee’s employment without Cause in connection with or within twelve (a12) If, months after a Change in Control (defined below) or if Employee terminates his employment for Good Reason (defined below) within the two-year period following twelve (12) months after a Change in Control, Executive Employee shall suffer an Involuntary Termination or a Termination Without Cause, then:
be entitled to receive (i) the Company shall pay Executive a lump sum equal to any annual salary his accrued but unpaid Base Salary and other benefits earned under any Company-provided plans, policies and accrued under this Agreement prior to arrangements for the Termination Date (period preceding the effective date of the termination of employment, and reimbursement under this Agreement for expenses incurred prior to the Termination Date);
(ii) a lump-sum payment equal to one time Employee’s Base Salary, as then in effect, less all tax withholdings and other applicable deductions the Company shall pay Executive an amount equal reasonably determines are required to be made, payable on the target Annual Bonus for the Termination Year multiplied by a fraction, the numerator of which is the number of days elapsed in the Termination Year through the Termination Date and the denominator of which is the number of days in the Termination Year;
(iii) the Company shall pay Executive an amount equal to two times the Change-in-Control Severance Amount;
(iv) all outstanding unvested stock options, restricted stock and other unvested equity-type interests shall vest and shall otherwise be exercisable for the greater of (1) one year first regular payroll date after the effective date of such a Separation Agreement and Release that has been executed and not revoked within any applicable rescission period that has expired within sixty (60) days of the Employee’s termination or (2) in accordance with their terms (provided, however, that the Boardof employment, in its sole discretionsubstantially the form of Exhibit C attached hereto, may extend such exercise period, and/or modify the execution and performance by Employee of which is specifically a condition to his receipt of any of the other terms payments and conditions benefits provided under this Section 12C; provided that Employee shall not be required to execute a release of any such stock option, stock award or other equity-type award programs, on terms no less favorable to Executive than those provided for herein);
(v) the Company shall forgive any and all outstanding balances on loans made by the Company to Executive to purchase claims arising from the Company's stock (provided, however, that as a condition precedent ’s failure to comply with its obligations under Section 12A. If Employee timely and effectively elects continuation coverage under the Company's obligation ’s group health plan pursuant to forgive such loansCOBRA or similar state law, the Company may withhold from other amounts payable to Executivewill pay or reimburse the premiums for such coverage of Employee (and his dependents, or require Executive to pay to as applicable) at the Company, the amount the Company in good ▇▇▇▇▇ ▇▇▇▇▇ necessary to satisfy the Company's obligation to withhold federal, state or local income or other taxes incurred by reason of such forgiveness of loans);
same rate it pays for active employees for a period for twelve (vi12) the Company shall continue to provide Executive, for three years months from the date of termination, with the level termination of health/medical insurance or coverage employment; provided to Executive at the time of such termination; it being expressly understood and agreed that nothing in this clause (vi) shall restrict the ability of the Company to amend or terminate such plans and programs from time to time in its sole discretion; provided, however, that the Company Company’s obligation to make such payments shall in no event immediately expire if Employee ceases to be required to provide any eligible for continuation coverage after under COBRA or similar state law or otherwise terminates such time as Executive becomes entitled to receive benefits of coverage. Notwithstanding the same type from another employer or recipient of Executive's services (and provided, further, that such entitlement shall be determined without regard to any individual waivers or other similar arrangements);
(vii) any continued rights and benefits that Executive may have under employee benefit plans and programs of the Company upon such termination shall be determined in accordance with the terms and previous provisions of such plans and programs; and
this Section 12C, any payments due under this Section 12C shall commence within sixty (viii60) Executive shall have no further rights to any other compensation or benefits hereunder or granted hereunder on or after the days of Employee's termination of employment, or provided that if such sixty (60)-day period spans two calendar years, payments shall commence in the latter calendar year. In addition to the foregoing and subject to Employee’s timely execution of a Separation Agreement and Release that has been executed and not revoked within any other rights hereunder.
applicable rescission period that has expired within sixty (b60) Notwithstanding days of the foregoingEmployee’s termination of employment, (i) neither Good Reason nor grounds for Involuntary Termination Employee shall be deemed entitled to exist unless a Notice the pro-rated amount of Termination on account any unpaid bonus for the calendar year in which his termination of employment occurs, if earned pursuant to the terms thereof (specifying a termination date no less than 14 days and no more than 21 days from except for the provision of remaining an employee through the date of such noticepayment thereof) is given no later than 90 days and and paid after the time at which end of such calendar year but on or before March 15 of the event following calendar year and in such manner as determined by the Board (or condition purportedly giving rise a committee thereof) in its sole discretion pursuant to Good Reason or the Involuntary Termination first occurs or arises; terms thereof. The payments and (ii) if there exists (without regard to benefits described in this clause (ii)) an event or condition that constitutes Good Reason or grounds for Involuntary TerminationSection 12C are in lieu of, and not in addition to, the Company payments and benefits described in Section 12B, it being understood by Employee that he shall have 30 days from the date such Notice be paid and receive only one set of Termination is given to remedy or cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason or grounds for Involuntary Termination, respectively, hereunderseverance payments and benefits.
Appears in 1 contract
Sources: Employment Agreement (Xtant Medical Holdings, Inc.)
Termination Upon a Change in Control. If the Company or any successor in interest to the Company terminates Employee’s employment without Cause in connection with or within twelve (a12) If, months after a Change in Control (defined below) or if Employee terminates his employment for Good Reason (defined below) within the two-year period following twelve (12) months after a Change in Control, Executive Employee shall suffer an Involuntary Termination or a Termination Without Cause, then:
be entitled to receive (i) the Company shall pay Executive a lump sum equal to any annual salary his accrued but unpaid Base Salary and other benefits earned under any Company-provided plans, policies and accrued under this Agreement prior to arrangements for the Termination Date (period preceding the effective date of the termination of employment, and reimbursement under this Agreement for expenses incurred prior to the Termination Date);
(ii) a lump-sum payment equal to one times Employee’s Base Salary, as then in effect, less all tax withholdings and other applicable deductions the Company shall pay Executive an amount equal reasonably determines are required to be made, payable on the target Annual Bonus for the Termination Year multiplied by a fraction, the numerator of which is the number of days elapsed in the Termination Year through the Termination Date and the denominator of which is the number of days in the Termination Year;
(iii) the Company shall pay Executive an amount equal to two times the Change-in-Control Severance Amount;
(iv) all outstanding unvested stock options, restricted stock and other unvested equity-type interests shall vest and shall otherwise be exercisable for the greater of (1) one year first regular payroll date after the effective date of such a Separation Agreement and Release that has been executed and not revoked within any applicable rescission period that has expired within sixty (60) days of the Employee’s termination or (2) in accordance with their terms (provided, however, that the Boardof employment, in its sole discretionsubstantially the form of Exhibit C attached hereto, may extend such exercise period, and/or modify the execution and performance by Employee of which is specifically a condition to his receipt of any of the other terms payments and conditions benefits provided under this Paragraph 12C; provided that Employee shall not be required to execute a release of any such stock option, stock award or other equity-type award programs, on terms no less favorable to Executive than those provided for herein);
(v) the Company shall forgive any and all outstanding balances on loans made by the Company to Executive to purchase claims arising from the Company's stock (provided, however, that as a condition precedent ’s failure to comply with its obligations under Paragraph 12A. If Employee timely and effectively elects continuation coverage under the Company's obligation ’s group health plan pursuant to forgive such loansCOBRA or similar state law, the Company may withhold from other amounts payable to Executivewill pay or reimburse the premiums for such coverage of Employee (and his dependents, or require Executive to pay to as applicable) at the Company, the amount the Company in good ▇▇▇▇▇ ▇▇▇▇▇ necessary to satisfy the Company's obligation to withhold federal, state or local income or other taxes incurred by reason of such forgiveness of loans);
same rate it pays for active employees for a period for twelve (vi12) the Company shall continue to provide Executive, for three years months from the date of termination, with the level termination of health/medical insurance or coverage employment; provided to Executive at the time of such termination; it being expressly understood and agreed that nothing in this clause (vi) shall restrict the ability of the Company to amend or terminate such plans and programs from time to time in its sole discretion; provided, however, that the Company Company’s obligation to make such payments shall in no event immediately expire if Employee ceases to be required to provide any eligible for continuation coverage after under COBRA or similar state law or otherwise terminates such time as Executive becomes entitled to receive benefits of coverage. Notwithstanding the same type from another employer or recipient of Executive's services (and provided, further, that such entitlement shall be determined without regard to any individual waivers or other similar arrangements);
(vii) any continued rights and benefits that Executive may have under employee benefit plans and programs of the Company upon such termination shall be determined in accordance with the terms and previous provisions of such plans and programs; and
this Paragraph 12C, any payments due under this Paragraph 12C shall commence within sixty (viii60) Executive shall have no further rights to any other compensation or benefits hereunder or granted hereunder on or after the days of Employee’s termination of employment, or provided that if such sixty (60)-day period spans two calendar years, payments shall commence in the latter calendar year. In addition to the foregoing and subject to Employee’s timely execution of a Separation Agreement and Release that has been executed and not revoked within any other rights hereunder.
applicable rescission period that has expired within sixty (b60) Notwithstanding days of the foregoingEmployee’s termination of employment, (i) neither Good Reason nor grounds for Involuntary Termination Employee shall be deemed entitled to exist unless a Notice the pro-rated amount of Termination on account any unpaid bonus for the calendar year in which his termination of employment occurs, if earned pursuant to the terms thereof (specifying a termination date no less than 14 days and no more than 21 days from except for the provision of remaining an employee through the date of payment thereof) and at such noticetime and in such manner as determined by the Board (or a committee thereof) is given in its sole discretion pursuant to the terms thereof, provided such bonus shall be paid no later than 90 days as soon as reasonably practicable after the time at earlier of the filing of the Company’s Annual Report on Form 10-K with the SEC and December 31 of the calendar year immediately following the calendar year in which the event or condition purportedly giving rise to Good Reason or the Involuntary Termination first occurs or arises; bonus is being measured. The payments and (ii) if there exists (without regard to benefits described in this clause (ii)) an event or condition that constitutes Good Reason or grounds for Involuntary TerminationParagraph 12C are in lieu of, and not in addition to, the Company payments and benefits described in Paragraph 12B, it being understood by Employee that he shall have 30 days from the date such Notice be paid and receive only one set of Termination is given to remedy or cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason or grounds for Involuntary Termination, respectively, hereunderseverance payments and benefits.
Appears in 1 contract
Sources: Employment Agreement (Xtant Medical Holdings, Inc.)
Termination Upon a Change in Control. (a) IfIf a Change in Control occurs during the Term of this Agreement, within Executive shall be entitled to the two-year period following benefits provided in this Section 3 upon the subsequent termination of Executive's employment by the Company without Cause, the Executive's resignation for Good Reason or, if during the 7th full calendar month after the occurrence of a Change in Control, the Executive voluntarily elects to terminate his employment for any reason. The Executive's voluntary election to separate from service during the 7th full calendar month after the occurrence of a Change in Control shall be deemed a termination for Good Reason pursuant to Section 1(g), however, instead of the benefits described under Section 2, the Executive shall suffer an Involuntary be entitled to the payments and other rights described in this Section 3. Notwithstanding anything in this Agreement to the contrary, if Executive's employment terminates on account of his death or Disability, Executive shall be entitled to receive the life insurance and/or disability benefits under any life insurance policy and/or disability program maintained by the Company for similarly situated executives on the date hereof which shall cover Executive, and Executive shall not be considered to have terminated employment under this Section 3(a) and shall not be entitled to receive benefits pursuant to this Section 3; provided, if such policy or program shall be amended to provide less favorable benefits, or shall be terminated, then the Company shall procure comparable such coverage for Executive, or pay Executive such amount in cash as may be required to compensate him for the cost to purchase such coverage, as in effect immediately prior to such amendment or termination
(b) Upon any Termination of Employment described in Section 3(a) above, Executive shall be entitled to receive only the amount due to Executive under the Company's then current severance pay plan for employees, if any. No other payments or benefits shall be due under this Agreement to Executive, but Executive shall be entitled to any benefits accrued or earned in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 3(b), in the event that Executive executes and does not revoke a Release, upon such removal or resignation, of any and all claims against the Company and all related parties with respect to all matters arising out of Executive's employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which Executive has accrued a benefit), Executive shall be entitled to receive, in lieu of the payment described in Section 3(b), the following in connection with Executive's Termination Without Cause, thenof Employment:
(i) the Company Executive shall pay Executive receive a lump sum cash payment equal to 2 times (x) Executive's Annual Base Salary in effect immediately before Executive's Termination of Employment (disregarding for this purpose any annual salary reduction in Executive's Annual Base Salary resulting in Good Reason for such Termination of Employment) and other benefits earned and accrued under this Agreement prior (y) the target bonus applicable to Executive as of the date on which Executive's Termination Date of Employment occurs. Payment shall be made within 30 days after the effective date of the termination (and reimbursement under this Agreement or the end of the revocation period for expenses incurred prior to the Termination DateRelease, if later);.
(ii) For a period of 24 months following the date of termination, Executive shall continue to receive the medical coverage in effect at the date of his termination (or comparable coverage) for himself and, where applicable, his spouse and dependents or, as an alternative, the Company shall may elect to pay Executive cash in lieu of such coverage in an amount equal to Executive's after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the target Annual Bonus tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 18 month benefit period.
(iii) A pro rated bonus for the year in which Executive's Termination Year of Employment occurs, when declared by the Board based upon business goal achievement; provided: (i) if such termination occurs during calendar year 2001, such bonus shall be the sum of (1) one-half of a target bonus, plus (2) the greater of (w) one-half of a target bonus or (x) a pro rated bonus; and (ii) if such termination occurs during calendar 2002, such bonus shall be equal to the greater of (y) one-half of a target bonus or (z) a pro rated bonus. A pro rated bonus shall be based on the Executive's annual bonus for the year in which Executive's termination occurs, multiplied by a fraction, the numerator of which is the number of days elapsed during which Executive was employed by the Company in the Termination Year through the Termination Date year of his termination and the denominator of which is 365. Payment shall be made within 30 days after the number date of days in declaration by the Termination Year;
Board (iii) or the Company shall pay Executive an amount equal to two times end of the Change-in-Control Severance Amount;
(iv) all outstanding unvested stock options, restricted stock and other unvested equity-type interests shall vest and shall otherwise be exercisable revocation period for the greater Release, if later); provided, if such termination occurs during calendar 2001, such part of (1) one year the bonus as equals one-half of a target bonus shall be paid to Executive within 30 days after the effective date of the termination (or the end of the revocation period for the Release, if later).
(iv) All outstanding options held by Executive that have not previously become exercisable shall automatically accelerate and become fully exercisable. All of Executive's restricted stock, if any, shall become fully vested and payable. In addition, all outstanding options which are or have become exercisable shall remain exercisable for the remaining portion of the applicable option. All such options shall remain exercisable for at least 24 months following such termination or (2) in accordance with their terms (provided, however, that the Board, in its sole discretion, may extend such exercise period, and/or modify any remaining term of the other terms and conditions of any such stock option, whichever is shorter, and shall remain outstanding with respect to shares of Company stock award or other equity-type award programs, on shall be assumed by the successor to the Company (with appropriate adjustment to reflect the terms no less favorable to Executive than those provided for hereinof the transaction);.
(v) the Company Executive shall forgive receive any and all outstanding balances on loans made by the Company amounts earned, accrued or owing but not yet paid to Executive to purchase the Company's stock (provided, however, that as a condition precedent to the Company's obligation to forgive such loans, the Company may withhold from other amounts payable to Executive, or require Executive to pay to the Company, the amount the Company in good ▇▇▇▇▇ ▇▇▇▇▇ necessary to satisfy the Company's obligation to withhold federal, state or local income or other taxes incurred by reason of such forgiveness of loans);
(vi) the Company shall continue to provide Executive, for three years from the date of terminationhis Termination of Employment, payable in a lump sum, and any benefits accrued or earned in accordance with the level terms of health/medical insurance or coverage provided to Executive at the time of such termination; it being expressly understood and agreed that nothing in this clause (vi) shall restrict the ability of the Company to amend or terminate such plans and programs from time to time in its sole discretion; provided, however, that the Company shall in no event be required to provide any coverage after such time as Executive becomes entitled to receive benefits of the same type from another employer or recipient of Executive's services (and provided, further, that such entitlement shall be determined without regard to any individual waivers or other similar arrangements);
(vii) any continued rights and benefits that Executive may have under employee applicable benefit plans and programs of the Company upon such termination shall be determined in accordance with the terms and provisions of such plans and programs; and
(viii) Executive shall have no further rights to any other compensation or benefits hereunder or granted hereunder on or after the termination of employment, or any other rights hereunderCompany.
(bvi) Notwithstanding Any relocation expense reimbursement obligation shall be excused.
(d) In addition to the foregoingamount payable under subsection (c) above, in the event that it shall be finally determined that any payment or distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (ithe "Payment"), would constitute an "excess parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), Executive shall be paid an additional amount (the "Gross-Up Payment") neither Good Reason nor grounds for Involuntary Termination such that the net amount retained by Executive after deduction of any excise tax imposed under Section 4999 of the Code, and any federal, state and local income and employment tax and excise tax imposed upon the Gross-Up Payment shall be an amount such that the Executive will be in the same after-tax position as if no excise tax under the Code had been imposed, provided that the Gross-Up Payment results in an after-tax payment amount to the Executive at least $5,000 greater than the Executive's after-tax position without the Gross-Up Payment. In the event that the after-tax benefit would not meet this threshold the Payment will be reduced in such amount as is reasonably deemed necessary by the Company so that no excise tax is imposed. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to exist unless pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence (or, if greater, the state and locality in which Executive is required to file a Notice of Termination nonresident income tax return with respect to the Payment) on account thereof (specifying a termination date no less than 14 days and no more than 21 days from the date of termination, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such noticestate and local taxes. All determinations to be made under this Section 3(d) is given no later than 90 shall be made by a nationally recognized independent public accountant selected by the Company immediately prior to the Change in Control (which may be the Company's auditors) (the "Accounting Firm"), which firm shall provide its determinations and any supporting calculations both to the Company and Executive within ten days after of Executive's termination date. Any such determination by the Accounting Firm shall be binding upon the Company and Executive for purposes of any dispute between the parties hereto. All fees and expenses of the Accounting Firm in performing the determinations referred to above shall be borne solely by the Company. As a result of uncertainty in the application of Section 4999 of the Code at the time at which of the initial determination by the Accounting Firm, it is possible that the Gross-Up Payment made will have been an amount less than the Company should have paid pursuant to this Section 3(d) (the "Underpayment") or an amount greater than the Company should have paid pursuant to this Section 3(d) (the "Overpayment"). In the event that it is finally determined that an Underpayment exists and the Executive is required to make a payment of any excise tax or condition purportedly giving rise related tax, the Gross-Up Payment shall be adjusted accordingly and the shortfall shall be promptly paid by the Company to Good Reason Executive or for his benefit. In the Involuntary Termination first occurs event that it is finally determined that an Overpayment exists and the Company paid a Gross-Up Payment to the Executive in excess of the amount of the Gross-Up Payment to which he is actually entitled hereunder, such excess shall be promptly reimbursed by the Executive to the Company. The Company agrees to indemnify and hold harmless the Accounting Firm of and from any and all claims, damages and expenses resulting from or arises; and (ii) if there exists (without regard relating to its determinations pursuant to this clause (iiSection 3(d)) an event , except for claims, damages or condition that constitutes Good Reason or grounds for Involuntary Termination, the Company shall have 30 days expenses resulting from the date such Notice gross negligence or willful misconduct of Termination is given to remedy or cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason or grounds for Involuntary Termination, respectively, hereunderAccounting Firm.
Appears in 1 contract
Sources: Severance and Change in Control Agreement (Internet Capital Group Inc)
Termination Upon a Change in Control. (a) IfIf Executive's employment with the Company is terminated, by Executive or by the Company, for any reason, or no reason, within the two-year period following a Change in ControlControl (including without limitation, Executive shall suffer an Involuntary Termination or a Termination Without CauseWith Cause or on account of death or disability), then:
(i) the Company shall pay Executive a lump sum equal to any annual salary and other benefits earned and accrued under this Agreement prior to the Termination Date (and reimbursement under this Agreement for expenses incurred prior to the Termination Date);
(ii) the Company shall pay Executive an amount equal to the target Annual Bonus for the Termination Year multiplied by a fraction, the numerator of which is the number of days elapsed in the Termination Year through the Termination Date and the denominator of which is the number of days in the Termination Year;
(iii) the Company shall pay Executive an amount equal to two three times the Change-in-Control Severance Amount;
(iv) all outstanding unvested Options granted under Section B, Paragraph 3(e), and all other outstanding unvested stock options, restricted stock and other unvested equity-type interests shall vest and shall otherwise be exercisable for the greater of (1) one year after the effective date of such termination or (2) in accordance with their terms (provided, however, that the Board, in its sole discretion, may extend such exercise period, and/or modify any of the other terms and conditions of any such stock option, stock award or other equity-type award programs, on terms no less favorable to Executive than those provided for herein);
(v) the Company shall forgive the outstanding balance of the loan made by the Company to Executive under Section B, Paragraph 3(c), and any and all outstanding balances on other loans made by the Company to Executive to purchase the Company's stock (provided, however, that as a condition precedent to the Company's obligation to forgive such loans, the Company may withhold from other amounts payable to Executive, or require Executive to pay to the Company, the amount the Company in good ▇▇▇▇▇ ▇▇▇▇▇ necessary to satisfy the Company's obligation to withhold federal, state or local income or other taxes incurred by reason of such forgiveness of loans);
(vi) the Company shall continue to provide Executive, for three years from the date of termination, with the level of health/medical insurance or coverage provided to Executive at the time of such termination; it being expressly understood and agreed that nothing in this clause (vie) shall restrict the ability of the Company to amend or terminate such plans and programs from time to time in its sole discretion; provided, however, that the Company shall in no event be required to provide any coverage after such time as Executive becomes entitled to receive benefits of the same type from another employer or recipient of Executive's services (and provided, further, that such entitlement shall be determined without regard to any individual waivers or other similar arrangements);
(vii) any continued rights and benefits that Executive may have under employee benefit plans and programs of the Company upon such termination shall be determined in accordance with the terms and provisions of such plans and programs; and
(viii) Executive shall have no further rights to any other compensation or benefits hereunder or granted hereunder on or after the termination of employment, or any other rights hereunder.
(b) Notwithstanding the foregoing, (i) neither Good Reason nor grounds for If a Change of Control occurs within one year after Executive suffers an Involuntary Termination shall be deemed to exist unless or a Notice of Termination on account thereof (specifying a termination date no less than 14 days and no more than 21 days from the date of such notice) is given no later than 90 days after the time at which the event or condition purportedly giving rise to Good Reason or the Involuntary Termination first occurs or arises; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason or grounds for Involuntary TerminationWithout Cause, then the Company shall have 30 days from pay Executive an amount equal to the date such Notice average of the dollar amounts awarded to Executive in the form of Incentive Compensation for each of the three fiscal years prior to the Termination is given to remedy or cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason or grounds for Involuntary Termination, respectively, hereunderYear.
Appears in 1 contract
Termination Upon a Change in Control. In the event a Termination Upon a Change in Control occurs, or in the event Executive is terminated under subparagraph (ac) If, within six months prior to the two-year period following occurrence of a Change in Control, Executive shall suffer an Involuntary Termination or a Termination Without Causebe entitled to receive (taking into account any benefits provided under subparagraph (c)), thenpromptly following his termination of employment:
(i) the Company shall pay Executive unpaid Base Compensation earned or accrued through his date of termination and a lump lump-sum payment equal to any annual salary and other benefits earned and accrued under this Agreement prior the Present Value of Executive's Base Compensation that would be due him for a period of 36 months following termination of his employment, determined on the basis of the average of the Base Compensation paid to Executive for the Termination Date (and reimbursement under this Agreement for expenses incurred prior to the Termination Date)36 months preceding his termination;
(ii) the Company shall pay Executive an amount a lump-sum payment equal to the target Annual Bonus Present Value of the aggregate performance bonus amounts he received, if any, for the Termination Year multiplied by period of 36 months preceding his termination or, if greater, a fraction, lump-sum payment equal to 150% of the numerator of which is largest performance bonus paid to Executive during the number of days elapsed in the Termination Year through the Termination Date and the denominator of which is the number of days in the Termination Year36 months preceding his termination;
(iii) the Company shall pay Executive an amount equal to two times the Change-in-Control Severance Amountany performance or special incentive bonus earned but not yet paid;
(iv) all outstanding unvested stock options, restricted stock and other unvested equity-type interests shall vest and shall otherwise be exercisable reimbursement for expenses incurred but not yet reimbursed by the greater of (1) one year after the effective date of such termination or (2) in accordance with their terms (provided, however, that the Board, in its sole discretion, may extend such exercise period, and/or modify any of the other terms and conditions of any such stock option, stock award or other equity-type award programs, on terms no less favorable Company pursuant to Executive than those provided for herein)Paragraph 8;
(v) the Company shall forgive any and immediate vesting of all outstanding balances on loans made by the Company to Executive to purchase the Company's stock (provided, however, that as a condition precedent to the Company's obligation to forgive such loans, the Company may withhold from other amounts payable options previously granted to Executive, or require Executive to pay notwithstanding the terms of any such grant to the Companycontrary, with the amount ability to exercise any such options for 12 months following the Company date of termination but in good ▇▇▇▇▇ ▇▇▇▇▇ necessary to satisfy no event after the Company's obligation to withhold federal, state or local income or other taxes incurred by reason expiration of such forgiveness of loans);the option term; and
(vi) the Company shall continue any other compensation and benefits to provide Executivewhich he may be entitled under applicable plans, for three years from the date of termination, with the level of health/medical insurance or coverage provided to Executive at the time of such termination; it being expressly understood programs and agreed that nothing in this clause (vi) shall restrict the ability agreements of the Company and the right to amend or terminate acquire any life insurance policy which has riot then matured for the cash surrender value pursuant to Paragraph 7, and the continuation of all Employee Benefit Programs provided under Paragraph 7 during the period for which Executive is to receive payments under clause (i) above irrespective of the fact that such plans and programs from time to time payments are paid in its sole discretiona lump sum); provided, however, that in the event the Company shall in no event be required is precluded from providing coverage under any such program by applicable law or regulation it may choose to provide any Executive with a payment equal to the cost of such coverage after such time as Executive becomes entitled without regard to receive benefits of tax effect. Notwithstanding the same type from another employer or recipient of Executive's services (and providedforegoing, further, in the event that such entitlement it shall be determined without regard that any payment or distribution by the Company to any individual waivers or other similar arrangementsfor the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a "Payment");
(vii) any continued rights and benefits that Executive may have under employee benefit plans and programs , would constitute an "excess parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and that it would be economically advantageous to the Company upon to reduce the Payment to avoid or reduce the limitation of the Company's federal income tax deduction under Section 280G of the Code, the aggregate present value of amounts payable or distributable to or for the benefit of Executive pursuant to this Agreement (such termination payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced (but not below zero) to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be subject to the limitation of deduction under Section 280G of the Code. For purposes of this subparagraph (d), "present value" shall be determined in accordance with Section 280G(d)(4) of the terms Code. All determinations to be made under this Paragraph 9(d) shall be made by the Company's independent public accountant immediately prior to the Change of Control (the "Accounting Firm"), which firm shall provide its determinations and provisions any supporting calculations both to the Company and Executive within 10 days of the termination date. Any such plans determination by the Accounting Firm shall be binding upon the Company and programs; and
(viii) Executive. Executive shall have no further rights to any other compensation or benefits hereunder or granted hereunder on or after in his sole discretion determine which and how much of the termination of employment, or any other rights hereunder.
(b) Notwithstanding the foregoing, (i) neither Good Reason nor grounds for Involuntary Termination Agreement Payments shall be deemed to exist unless a Notice eliminated or reduced consistent with the requirements of Termination on account thereof (specifying a termination date no less than 14 days and no more than 21 days from the date of such notice) is given no later than 90 this Paragraph 9(d). Within five days after the time at which the event or condition purportedly giving rise to Good Reason or the Involuntary Termination first occurs or arises; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason or grounds for Involuntary TerminationExecutive's determination, the Company shall have 30 days pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. All of the fees and expenses of the Accounting Firm in performing the determinations referred to above shall be borne solely by the Company. The Company agrees to indemnify. and hold harmless the Accounting Firm of and from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Paragraph, except for claims, damages or expenses resulting from the date such Notice gross negligence or willful misconduct of Termination is given to remedy or cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason or grounds for Involuntary Termination, respectively, hereunderAccounting Firm.
Appears in 1 contract
Sources: Employment Agreement (Players International Inc /Nv/)
Termination Upon a Change in Control. In the event a Termination Upon a Change in Control occurs within two (a2) Ifyears following any Change of Control, or in the event Executive is terminated under subparagraph (c) within six months prior to the two-year period following occurrence of a Change in Control, Executive shall suffer an Involuntary Termination be entitled to receive (taking into account any benefits provided under subparagraph (c)), promptly following the later of his termination of employment or a Termination Without Cause, thenthe Change of Control:
(i) the Company shall pay Executive unpaid Base Compensation earned or accrued through his date of termination and a lump lump-sum payment equal to any annual salary and other benefits earned and accrued under this Agreement prior the then present value (using a discount rate per annum determined by reference to the Termination Date discount rate then published by the Pension Benefit Guaranty Corporation for determining the value of immediate annuities (and reimbursement under this Agreement the "Present Value")) of Executive's Base Compensation that would be due him for expenses incurred prior a period of 36 months following termination of his employment, determined on the basis of the average of the Base Compensation paid to Executive for the Termination Date)36 months preceding his termination;
(ii) the Company shall pay Executive an amount a lump-sum payment equal to the target Annual Bonus Present Value of the aggregate performance bonus amounts he received, if any, for the Termination Year multiplied by a fraction, the numerator period of which is the number of days elapsed in the Termination Year through the Termination Date and the denominator of which is the number of days in the Termination Year36 months preceding his termination;
(iii) the Company shall pay Executive an amount equal to two times the Change-in-Control Severance Amountany performance or special incentive bonus earned but not yet paid;
(iv) all outstanding unvested stock options, restricted stock and other unvested equity-type interests shall vest and shall otherwise be exercisable reimbursement for expenses incurred but not yet reimbursed by the greater of (1) one year after the effective date of such termination or (2) in accordance with their terms (provided, however, that the Board, in its sole discretion, may extend such exercise period, and/or modify any of the other terms and conditions of any such stock option, stock award or other equity-type award programs, on terms no less favorable Company pursuant to Executive than those provided for herein)Paragraph 8;
(v) the Company shall forgive immediate vesting of all stock options previously granted to Executive, notwithstanding the terms of any such grant to the contrary, with the ability to exercise any such options for 12 months following the date of termination but in no event after the expiration of the stated option term; and
(vi) any other compensation and all outstanding balances on loans made by benefits to which he may be entitled under applicable plans, programs and agreements of the Company and the continuation of Executive's participation in all Employee Benefit Programs (as defined below) during the period for which Executive is to Executive to purchase receive payments under clause (i) above (irrespective of the Company's stock (fact that such payments are paid in a lump sum); provided, however, that as in the event the Company is precluded from providing coverage under any such program by applicable law or regulation it may choose to provide Executive with a condition precedent payment equal to the Company's obligation cost of such coverage without regard to forgive such loans, the Company may withhold from other amounts payable to Executive, or require Executive to pay to the Company, the amount tax effect. "Employee Benefit Programs" shall mean those employee welfare and retirement benefit plans and programs of the Company in good ▇▇▇▇▇ ▇▇▇▇▇ necessary to satisfy the Companywhich Executive participates immediately before Executive's obligation to withhold federal, state or local income or other taxes incurred by reason termination of such forgiveness of loans);
(vi) the Company shall continue to provide Executive, for three years from the date of termination, with the level of health/medical insurance or coverage provided to Executive at the time of such termination; it being expressly understood and agreed that nothing in this clause (vi) shall restrict the ability of the Company to amend or terminate such plans and programs from time to time in its sole discretionemployment; provided, however, that the Company shall in no event not be required to provide prohibited from amending or terminating any coverage after such time Employee Benefit Program as long as Executive becomes entitled continues to receive benefits comparable levels of coverage in the same type from another employer or recipient of Executive's services (and providedaggregate during the payment period. Notwithstanding the foregoing, further, in the event that such entitlement it shall be determined without regard that any payment or distribution by the Company to any individual waivers or other similar arrangementsfor the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a "Payment");
(vii) any continued rights and benefits that Executive may have under employee benefit plans and programs , would constitute an "excess parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and that it would be economically advantageous to the Company upon to reduce the payment to avoid or reduce the limitation of the Company's federal income tax deduction under Section 280G of the Code, the aggregate present value of amounts payable or distributable to or for the benefit of Executive pursuant to this Agreement (such termination payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced (but not below zero) to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be subject to the limitation of deduction under Section 280G of the Code. For purposes of this subparagraph (d), "present value" shall be determined in accordance with Section 280G(d)(4) of the terms Code. All determinations to be made under this Paragraph 9(d) shall be made by the Company's independent public accountant immediately prior to the Change of Control (the "Accounting Firm"), which firm shall provide its determinations and provisions any supporting calculations both the Company and Executive within ten days of the termination date. Any such plans determination by the Accounting Firm shall be binding upon the Company and programs; and
(viii) Executive. Executive shall have no further rights to any other compensation or benefits hereunder or granted hereunder on or after in his sole discretion determine which and how much of the termination of employment, or any other rights hereunder.
(b) Notwithstanding the foregoing, (i) neither Good Reason nor grounds for Involuntary Termination Agreement Payments shall be deemed to exist unless a Notice eliminated or reduced consistent with the requirements of Termination on account thereof (specifying a termination date no less than 14 days and no more than 21 days from the date of such notice) is given no later than 90 this Paragraph 9(d). Within five days after the time at which the event or condition purportedly giving rise to Good Reason or the Involuntary Termination first occurs or arises; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason or grounds for Involuntary TerminationExecutive's determination, the Company shall have 30 days pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. All of the fees and expenses of the Accounting Firm in performing the determinations referred to above shall be borne solely by the Company. The Company agrees to indemnify and hold harmless the Accounting Firm of and from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Paragraph, except for claims, damages or expenses resulting from the date such Notice gross negligence or willful misconduct of Termination is given to remedy or cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason or grounds for Involuntary Termination, respectively, hereunderAccounting Firm.
Appears in 1 contract
Sources: Employment Agreement (Players International Inc /Nv/)
Termination Upon a Change in Control. If the Company or any successor in interest to the Company terminates Employee’s employment without Cause in connection with or within twelve (a12) If, months after a Change in Control (defined below) or if Employee terminates his employment for Good Reason (defined below) within the two-year period following twelve (12) months after a Change in Control, Executive Employee shall suffer an Involuntary Termination or a Termination Without Cause, then:
be entitled to receive (i) the Company shall pay Executive a lump sum equal to any annual salary his accrued but unpaid Base Salary and other benefits earned under any Company-provided plans, policies and accrued under this Agreement prior to arrangements for the Termination Date (period preceding the effective date of the termination of employment, and reimbursement under this Agreement for expenses incurred prior to the Termination Date);
(ii) a lump-sum payment equal to one and a half (1.5) times the sum of (a) Employee’s Base Salary, as then in effect, plus (b) Employee’s target bonus, as contemplated in Paragraph 2B of the Agreement, less all tax withholdings and other applicable deductions the Company shall pay Executive an amount equal reasonably determines are required to be made, payable on the target Annual Bonus for the Termination Year multiplied by a fraction, the numerator of which is the number of days elapsed in the Termination Year through the Termination Date and the denominator of which is the number of days in the Termination Year;
(iii) the Company shall pay Executive an amount equal to two times the Change-in-Control Severance Amount;
(iv) all outstanding unvested stock options, restricted stock and other unvested equity-type interests shall vest and shall otherwise be exercisable for the greater of (1) one year first regular payroll date after the effective date of such a Separation Agreement and Release that has been executed and not revoked within any applicable rescission period that has expired within sixty (60) days of the Employee’s termination or (2) in accordance with their terms (provided, however, that the Boardof employment, in its sole discretionsubstantially the form of Exhibit C attached hereto, may extend such exercise period, and/or modify the execution and performance by Employee of which is specifically a condition to his receipt of any of the other terms payments and conditions benefits provided under this Paragraph 12C; provided that Employee shall not be required to execute a release of any such stock option, stock award or other equity-type award programs, on terms no less favorable to Executive than those provided for herein);
(v) the Company shall forgive any and all outstanding balances on loans made by the Company to Executive to purchase claims arising from the Company's stock (provided, however, that as a condition precedent ’s failure to comply with its obligations under Paragraph 12A. If Employee timely and effectively elects continuation coverage under the Company's obligation ’s group health plan pursuant to forgive such loansCOBRA or similar state law, the Company may withhold from other amounts payable to Executivewill pay or reimburse the premiums for such coverage of Employee (and his dependents, or require Executive to pay to as applicable) at the Company, the amount the Company in good ▇▇▇▇▇ ▇▇▇▇▇ necessary to satisfy the Company's obligation to withhold federal, state or local income or other taxes incurred by reason of such forgiveness of loans);
same rate it pays for active employees for a period for eighteentwelve (vi1812) the Company shall continue to provide Executive, for three years months from the date of termination, with the level termination of health/medical insurance or coverage employment; provided to Executive at the time of such termination; it being expressly understood and agreed that nothing in this clause (vi) shall restrict the ability of the Company to amend or terminate such plans and programs from time to time in its sole discretion; provided, however, that the Company Company’s obligation to make such payments shall in no event immediately expire if Employee ceases to be required to provide any eligible for continuation coverage after under COBRA or similar state law or otherwise terminates such time as Executive becomes entitled to receive benefits of coverage. Notwithstanding the same type from another employer or recipient of Executive's services (and provided, further, that such entitlement shall be determined without regard to any individual waivers or other similar arrangements);
(vii) any continued rights and benefits that Executive may have under employee benefit plans and programs of the Company upon such termination shall be determined in accordance with the terms and previous provisions of such plans and programs; and
this Paragraph 12C, any payments due under this Paragraph 12C shall commence within sixty (viii60) Executive shall have no further rights to any other compensation or benefits hereunder or granted hereunder on or after the days of Employee’s termination of employment, or provided that if such sixty (60)-day period spans two calendar years, payments shall commence in the latter calendar year. In addition to the foregoing and subject to Employee’s timely execution of a Separation Agreement and Release that has been executed and not revoked within any other rights hereunder.
applicable rescission period that has expired within sixty (b60) Notwithstanding days of the foregoingEmployee’s termination of employment, (i) neither Good Reason nor grounds for Involuntary Termination Employee shall be deemed entitled to exist unless a Notice the pro-rated amount of Termination on account any unpaid bonus for the calendar year in which his termination of employment occurs, if earned pursuant to the terms thereof (specifying a termination date no less than 14 days and no more than 21 days from except for the provision of remaining an employee through the date of payment thereof) and at such noticetime and in such manner as determined by the Board (or a committee thereof) is given in its sole discretion pursuant to the terms thereof, provided such bonus shall be paid no later than 90 days as soon as reasonably practicable after the time at earlier of the filing of the Company’s Annual Report on Form 10-K with the SEC and December 31 of the calendar year immediately following the calendar year in which the event or condition purportedly giving rise to Good Reason or the Involuntary Termination first occurs or arises; bonus is being measured. The payments and (ii) if there exists (without regard to benefits described in this clause (ii)) an event or condition that constitutes Good Reason or grounds for Involuntary TerminationParagraph 12C are in lieu of, and not in addition to, the Company payments and benefits described in Paragraph 12B, it being understood by Employee that he shall have 30 days from the date such Notice be paid and receive only one set of Termination is given to remedy or cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason or grounds for Involuntary Termination, respectively, hereunderseverance payments and benefits.”
Appears in 1 contract
Sources: Employment Agreement (Xtant Medical Holdings, Inc.)