Upon Change in Control Clause Samples
The "Upon Change in Control" clause defines the rights and obligations of the parties if there is a significant change in the ownership or management of a company, such as through a merger, acquisition, or sale of a controlling interest. Typically, this clause outlines what happens to existing contracts, employee agreements, or stock options in the event of such a change, and may grant certain parties the right to terminate agreements, accelerate vesting, or require notification. Its core function is to provide certainty and protection for both parties by addressing the potential impacts and risks associated with a major shift in corporate control.
Upon Change in Control. Upon termination of Employee’s employment within thirty-six (36) months following a Change in Control of the Employer, unless such termination is (i) because of Employee’s death or Retirement, (ii) by Employer for Cause or Disability, (iii) by Employee other than for Good Reason or (iv) pursuant to a Notice of Termination given prior to a Change in Control except when such Notice of Termination is given by Employer after any regulatory filing has been made in contemplation of a Change in Control (in which event Section IV(A ) or IV(B), as the case may be, shall govern such termination), Employer shall pay to Employee an amount equal to 2.99 multiplied by the Employee’s annualized includable compensation for the base period, within the meaning of Section 280G(d)(1) of the Internal Revenue Code of 1986, as amended (“Code”), provided, however, that if any of such payment is or will be subject to the excise tax imposed by Section 4999 of the Code or any similar tax that may hereafter be imposed (“Excise Tax”) such payment shall be reduced to a smaller amount, even to zero, which smaller amount shall be the largest amount payable under this paragraph that would not be subject in whole or in part to the Excise Tax after considering all other payments to Employee required to be considered under Section 4999 or 280G of the Code, and taking into account the payment date prescribed in the following sentence. Such payment shall be: (i) referred to as the “Severance Payment,” (ii) determined by a certified public accounting firm selected by Executive, which shall provide detailed supporting calculations to Employer and Employee, and (iii) made on the first day of the month following the six-month anniversary of the Employee’s Date of Termination. All fees and expenses of the accounting firm shall be the responsibility of and paid by the Employer.
Upon Change in Control. If McAu▇▇▇▇▇ ▇▇▇cts to terminate his employment on account of the occurrence of a change in control, as defined in Paragraph (d) of Section 4, the Bank shall pay the amounts described in Subparagraph (i) below to McAu▇▇▇▇▇ ▇▇ in the case of his death after commencement of payments to his estate or beneficiary and shall continue the benefits described in Subparagraph (ii) below until the completion of the payment of the amounts described in Subparagraph (i) below; and McAu▇▇▇▇▇ ▇▇▇ll have the option described in Subparagraph (iii) below:
(i) The amounts to be paid as described above are:
A. M▇▇▇▇▇▇▇▇'▇ ▇▇▇rued but unpaid cash compensation (the "Accrued Obligations"), which shall equal any portion of his Annual Base Salary through the Date of Termination that has not yet been paid; (2) any compensation previously deferred by McAu▇▇▇▇▇ (together with any accrued interest or earnings thereon) that has not yet been paid; and (3) any accrued but unpaid vacation pay; and
B. S▇▇▇▇▇▇▇▇ ▇▇▇ments calculated on an annual basis and paid on a monthly basis, beginning one (1) month following the Date of Termination, and continuing for a total of one hundred twenty (120) consecutive months. The annual amount shall be determined by multiplying McAu▇▇▇▇▇'▇ ▇▇▇ual Base Salary for the calendar year in which the Date of Termination occurs by a factor of two and nine-tenths (2.9), then dividing by a factor of ten (10).
(ii) The benefits to be continued are benefits to McAu▇▇▇▇▇ ▇▇▇/or his family at least as favorable as those that would have been provided to them under Paragraph (d)(ii) of Section 3 of this Agreement if McAu▇▇▇▇▇'▇ ▇▇▇loyment had continued until the completion of the payments of the amounts described in Subparagraph (i) above; provided, however, that during any period when McAu▇▇▇▇▇ ▇▇ eligible to receive such benefits under another employer-provided plan, the benefits provided by the Bank under this subparagraph may cease. The foregoing notwithstanding, if the Bank is unable to continue to provide benefits to McAu▇▇▇▇▇ ▇▇▇/or his family on account of his or their ceasing to be eligible for those benefits under the terms of the applicable plan or policy, then the Bank will pay to McAu▇▇▇▇▇ ▇▇▇/or his family on a monthly basis the cost of providing medical, life and disability insurance of substantially equal or better coverage.
(iii) McAu▇▇▇▇▇ ▇▇▇ll have the option exercisable once or more than once, for a period of five (5) years from the Date of Termination, ...
Upon Change in Control. Notwithstanding the foregoing, the OPTION shall fully vest with respect to all SHARES subject thereto upon the occurrence of a "Change in Control." For purposes of this Agreement, the term "Change in Control" shall mean the occurrence of any event which results in either: (a) Borr▇▇ ▇▇▇lty Company's failing to own at least thirty percent (30%) of the combined voting power of the then outstanding voting securities of the COMPANY entitled to vote generally in the election of directors; or (b) both Dona▇▇ ▇▇▇▇▇▇ ▇▇▇ Doug▇▇▇ ▇▇▇▇▇▇ ▇▇▇sing to be directors and officers of the COMPANY.
Upon Change in Control. If Executive is employed on the date a Change in Control occurs or if the Executive's employment by the Bank or WGNB is terminated for any reason other than Cause, Disability, death or voluntary quit without Good Reason, during the twelve (12) month period immediately preceding the date of the Change in Control, the Bank and WGNB agree to pay the Executive an amount equal to:
(a) Two times the Executive's annual Base Salary based on the greater of (a) his Base Salary on the Termination Date (if applicable) or (b) his Base Salary for the fiscal year immediately preceding the date of the Change in Control; plus
(b) Two times the amount of his Bonus and the Profit Sharing Bonus, for the fiscal year which ended immediately preceding the earlier of (i) his Termination Date (if applicable) or (b) the date of the Change in Control. The amounts provided for in this subsection shall be paid in a lump sum cash payment within thirty (30) days after the date of the Change in Control. The payment of any amount under this subsection is contingent upon the Executive's execution of a general release as described in Section 5.7.
Upon Change in Control. Subject to Subsections (d)(iii) and (d)(iv), a Participant shall have a 100% vested interest in his Account upon a Change in Control of the Employer. For purposes of this Paragraph (e), a “Change in Control” shall mean
(i) a reorganization, merger, consolidation or sale of all or substantially all of the assets of the Employer, or a similar transaction, in any case in which the holders of the voting stock of the Employer prior to such transaction do not hold a majority of the voting power of the resulting entity; or
(ii) individuals who constitute the Incumbent Board (as herein defined) of the Employer cease for any reason, within a 12 month period, to constitute a majority thereof; or
(iii) Without limitation, a change in control shall be deemed to have occurred at such time as (i) any "person" (as the term is used in Section 13(d) and 14(d) of the Exchange Act) other than the Employer or the trustees or any administration of any employee stock ownership plan and trust, or any other employee benefit plans, established by Employer from time-to-time in is or becomes a "beneficial owner" (as defined in Rule 13-d under the Exchange Act) directly or indirectly, of securities of the Employer representing 35% or more of the Employer's outstanding securities ordinarily having the right to vote at the election of directors; or
(iv) A tender offer is made for 35% or more of the voting securities of the Employer and the shareholders owning beneficially or of record 35% or more of the outstanding securities of the Employer have tendered or offered to sell their shares pursuant to such tender and such tendered shares have been accepted by the tender offeror.
Upon Change in Control. If, within the thirty (30) day period immediately following a Change in Control, Executive elects to terminate his employment with the Company, then the Company shall pay Executive in a lump sum an amount equal to the sum of (A) three (3) times the Executive's current Base Salary (or his Base Salary immediately prior to the Change of Control, if greater), (B) three (3) times his Highest Bonus (as hereinafter defined), and (C) any Gross-Up Payment provided under Subparagraph 8(c) below. Such payment shall be made no later than three (3) days after the Date of Termination. For purposes of this Section 8, Highest Bonus shall mean the largest Annual Bonus actually paid for work performed in the three most recently completed fiscal years.
Upon Change in Control. (a) In the event of a Change in Control, as defined in the Plan, except as set forth subsection 9(c) below, and upon your subsequent involuntary termination from employment with the Company or its successor corporation without Cause, the vesting and exercisability of all unvested outstanding stock options granted hereunder will be accelerated in full. For purposes of this Section 9, “Cause” shall be defined solely as one or more of the following:
(i) the eligible employee’s commission of any felony related to the company or its business or any crime involving fraud or moral turpitude under the laws of the United States or any state thereof or of any foreign jurisdiction where the eligible employee is employed;
(ii) the eligible employee’s attempted commission of, or participation in, a fraud against the Company;
(iii) the eligible employee’s unauthorized use or disclosure of the Company’s confidential information or trade secrets;
(iv) the eligible employee’s willful failure to substantially perform his or her duties and responsibilities owed to the Company; provided, however, that the conduct described under clause (iv) above will only constitute Cause if such conduct is not cured, within 15 days after the eligible employee’s receipt of written notice from the Company or the Board of Directors specifying the particulars of the conduct that may constitute Cause.
(b) In the event of your Constructive Termination (as defined below) within twelve (12) months after a Change in Control, as defined in the Plan, except as set forth in subsection 9(c) below, the vesting and exercisability of all unvested outstanding stock options granted hereunder will be accelerated in full. For purposes of this Agreement, “Constructive Termination” shall be defined as:
Upon Change in Control. (a) Notwithstanding Section 2 above, if Grantee holds Restrictive Stock Units at the time a Change in Control occurs, all of the Restricted Stock Units shall become immediately and unconditionally vested and exercisable, and the restrictions with respect to all of the Restricted Stock Units shall lapse, effective immediately prior to the occurrence of a Triggering Event (as defined below) occurring within the twelve (12) month period beginning with such Change in Control.
(b) For purposes of this Section 3, the following terms shall have the meanings set forth below:
Upon Change in Control. Notwithstanding anything in Section 2.1(a) to the contrary, in the event that a Change in Control occurs prior to the completion of the TSR Performance Period, the Compensation Committee shall determine for such incomplete TSR Performance Period the Relative TSR Percentile Rank, the TSR Vesting Percentage and the Total Vested Award, in each case, as of the date on which such Change in Control occurs (based on actual performance through such date and assuming that the date of such Change in Control is the last day of the incomplete TSR Performance Period); provided, however, that if Holder’s Total Vested Award, as determined in accordance with the foregoing, is less than Holder’s Total Target Award, as applicable, then Holder shall instead be eligible to receive Holder’s Total Target Award. Fifty percent (50%) of the Total Vested Award or Total Target Award, as applicable (and as determined pursuant to this Section 2.1(b)), shall become vested upon the First Vesting Date, and the remaining fifty percent (50%) of the Total Vested Award or Total Target Award, as applicable (and as determined pursuant to this Section 2.1(b)) shall become vested upon the Second Vesting Date, subject, in each case, to the Holder’s continued employment with the Company or any Subsidiary through the applicable Vesting Date; provided, however, that if Holder incurs a Qualified Termination upon or within two (2) years following a Change in Control and prior to a Vesting Date, the Total Vested Award or Total Target Award, as applicable (and as determined pursuant to this Section 2.1(b)), shall become fully vested upon such Qualified Termination.
Upon Change in Control. In the event of the occurrence of a Change in Control of the Employer or a member of the Employer’s controlled group (as designated by the Employer in the Adoption Agreement) to the extent permitted under Section 409A of the Code and the regulations and other guidance thereunder, distributions shall be made to Participants to the extent elected by the Employer in the Adoption Agreement, in the form elected by the Participants as if a Termination Date had occurred with respect to each Participant, or as otherwise specified by the Employer in the Adoption Agreement. The Change in Control shall relate to: (i) the corporation for whom the Participant is performing services at the time of the Change in Control event; (ii) the corporation that is liable for the payment from the Plan to the Participant (or all corporations so liable if more than one corporation is liable); (iii) a corporation that is a majority shareholder of a corporation described in (i) or (ii) above; or (iv) any corporation in a chain of corporations in which each such corporation is a majority shareholder of another corporation in the chain, ending in a corporation described in (i) or (ii) above, as elected by the Employer in the Adoption Agreement. A “majority shareholder” for these purposes is a shareholder owning more than 50% of the total fair market value and total voting power of such corporation. Attribution rules described in section 318(a) of the Code apply to determine stock ownership. Stock underlying a vested option is considered owned by the individual who holds the vested option. Notwithstanding the foregoing, if a vested option is exercisable for stock that is not substantially vested (as defined in section 1.83-3(b) and (j) of the Code), the stock underlying the option is not treated as owned by the individual who holds the option. If plan payments are made on account of a Change in Control and are calculated by reference to the value of the Employer’s stock, such payments shall be completed not later than 5 years after the Change in Control event. To the extent designated by the Employer in the Adoption Agreement, the Change in Control shall occur upon the date that: (v) a person or “Group” (as defined in Treasury Regulation Sections 1.409A- 3(i)(5)(v)(B) and (vi)(D)) acquires more than 50% of the total fair market value or voting power of stock of the corporation designated in (i) through