Acceleration of Vesting. The provisions concerning vesting pursuant to clauses (i), (ii) and (iii) below will be cumulative, and are hereby deemed to be a part of all stock options, restricted stock and such other awards granted during the term of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof, (each a “Stock Award”), and to supersede any less favorable provision in any agreement or plan regarding such Stock Award. (i) If the Executive’s employment is terminated by the Company without Cause, by the Executive for Good Reason, or as a result of the Executive’s death or Disability (all as defined in Section 6 below), the Executive’s outstanding unvested Stock Awards that would have vested over the twelve (12) month period following the date of termination had the Executive remained continuously employed by the Company during such period, will be automatically vested and exercisable on the date of termination. For purposes of this Section 2.6(b), the definition of Cause, Good Reason and Disability in Section 6 of this Agreement supersedes any such definitions in the Plan. (ii) On the effective date of a Change of Control (as defined in subsection (iv) below), fifty percent (50%) of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of Control), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse. (iii) If this Agreement is terminated by the Company without Cause or by the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Change of Control, all of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable on the later of the date of termination or the Change of Control; provided, that if any unvested portion of a Stock Award terminates or is forfeited in the case of the termination of this Agreement before a Change of Control, the Company will make a cash payment to the Executive, no later than ten (10) days after the effective date of the Change of Control, equal to the economic value of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate fair market value of the shares underlying that portion of the option at the time of the Change of Control, and for stock awards as the aggregate fair market value of the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5).
Appears in 5 contracts
Samples: Executive Employment Agreement (Micromet, Inc.), Executive Employment Agreement (Micromet, Inc.), Executive Employment Agreement (Micromet, Inc.)
Acceleration of Vesting. The provisions concerning vesting pursuant to clauses (ia) In the event your employment with Deluxe is terminated by reason of death, Disability (as defined in the Addendum), or Approved Retirement (iias defined in the Addendum) any time during the Restricted Period, all of the yet unvested Units will vest and the Units shall become non-forfeitable as of the date of such termination.
(b) Subject to Section 4(c), in the event your employment is terminated during the Restricted Period after the first anniversary of the Award Date by reason of involuntary termination without Cause, a pro rata portion of the next segment of Units scheduled to vest after the termination date (based on the number of completed days between the termination date and the scheduled vesting date immediately prior to the termination date (or the Award Date if there was no such scheduled vesting date) divided by 365) shall vest and become non-forfeitable as of the date of such termination.
(c) Notwithstanding any provision contained in this Agreement that would result in Units vesting in full or in part at a later date, if, in connection with any Change of Control, the acquiring Person, surviving or acquiring corporation or entity, or an Affiliate of such corporation or entity, elects to assume the obligations of Deluxe under this Agreement and to replace the Shares issuable upon settlement of the Units with other equity securities that are listed on a national securities exchange (including by use of American Depository Receipts or any similar method) and are freely transferable under all applicable federal and state securities laws and regulations (iii) below will be cumulative, and are hereby deemed to be a part of all stock options, restricted stock and such other awards granted during the term of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof, (each a “Stock AwardReplacement Equity Securities”), the Units then subject to restriction shall continue to vest as set forth in Section 2, provided, however, the Units shall vest in full and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.become non-forfeitable if, within twelve months of the date of the Change of Control:
(i) If Your employment with the Executive’s employment Company is terminated by the Company without Cause, ,
(ii) Your employment with the Company is terminated by the Executive you for Good Reason, or as a result of the Executive’s death or Disability (all as defined in Section 6 below), the Executive’s outstanding unvested Stock Awards that would have vested over the twelve (12) month period following the date of termination had the Executive remained continuously employed by the Company during such period, will be automatically vested and exercisable on the date of termination. For purposes of this Section 2.6(b), the definition of Cause, Good Reason and Disability in Section 6 of this Agreement supersedes any such definitions in the Plan.
(ii) On the effective date of a Change of Control (as defined in subsection (iv) below), fifty percent (50%) of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of Control), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.or
(iii) If Vesting would otherwise occur on any earlier date as provided under this Agreement. In the event of any such Change of Control, the number of Replacement Equity Securities issuable under this Agreement is terminated shall be determined by the Company without Cause or by Committee in accordance with Section 4(c) of the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Plan. In the event of any such Change of Control, all references herein to the Shares shall thereafter be deemed to refer to the Replacement Equity Securities, references to Deluxe or the Company shall thereafter be deemed to refer to the issuer of such Replacement Equity Securities, and all other terms of this Agreement shall continue in effect except as and to the Executive’s outstanding unvested Stock Awards will be automatically vested extent modified by this subparagraph.
(d) If the Change of Control does not meet the continuation or replacement criteria specified in Section 4(c) above, all Units then subject to restriction shall vest in full immediately and exercisable on the later of the date of termination or become non-forfeitable upon the Change of Control; provided, that if any unvested portion of a Stock Award terminates or is forfeited in the case of the termination .
(e) The provisions of this Agreement before a Change of Control, the Company will make a cash payment Section 4 shall be subject to the Executive, no later than ten (10Sections 5(b) days after the effective date of the Change of Control, equal to the economic value of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate fair market value of the shares underlying that portion of the option at the time of the Change of Control, and for stock awards as the aggregate fair market value of the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5)8.
Appears in 5 contracts
Samples: Restricted Stock Unit Award Agreement (Deluxe Corp), Restricted Stock Unit Award Agreement (Deluxe Corp), Restricted Stock Unit Award Agreement (Deluxe Corp)
Acceleration of Vesting. The provisions concerning vesting In the event of a Fundamental Change the Committee shall:
(a) if the Fundamental Change is a merger or consolidation or statutory share exchange, make appropriate provision for the protection of this Option by the substitution for this Option of options or voting common stock of the corporation surviving any merger or consolidation or, if appropriate, the parent corporation of the Company or such surviving corporation; or
(b) at least ten days before the occurrence of the Fundamental Change, declare, and provide written notice to the Optionee of the declaration, that this Option, whether or not then exercisable, shall be canceled at the time of, or immediately before the occurrence of, the Fundamental Change (unless it shall have been exercised prior to the occurrence of the Fundamental Change). In connection with any such declaration, the Committee may, but shall not be obligated to, cause payment to be made to the Optionee of cash equal to, for each Share covered by the canceled Option, the amount, if any, by which the Fair Market Value per share exceeds the exercise price per Share covered by this Option. At the time of any such declaration, this Option shall immediately become exercisable in full and the Optionee shall have the right, during the period preceding the time of cancellation of this Option, to exercise this Option as to all or any part of the Shares covered by this Option. In the event of a declaration pursuant to clauses (i)this subsection, (ii) and (iii) below will be cumulativeto the extent this Option has not been exercised prior to the Fundamental Change, and are hereby deemed to be a the unexercised part of all stock optionsthis Option shall be canceled at the time of, restricted stock and such other awards granted during or immediately before, the term Fundamental Change, as provided in the declaration. Notwithstanding the foregoing, the holder of this Option shall not be entitled to the Original Employment Agreement or payment provided for in this Agreement subsection if this Option shall have expired pursuant to the Company’s stock option and equity incentive award plans Section 5 above or agreements and any shares of stock issued upon exercise thereof, (each a “Stock Award”), and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.
(i) If the Executive’s employment is terminated by the Company without Cause, by the Executive for Good Reason, or as a result of the Executive’s death or Disability (all as defined in Section 6 below), the Executive’s outstanding unvested Stock Awards that would have vested over the twelve (12) month period following the date of termination had the Executive remained continuously employed by the Company during such period, will be automatically vested and exercisable on the date of terminationbeen cancelled. For purposes of this Section 2.6(b)subsection only, “Fair Market Value” per share has the definition of Cause, Good Reason and Disability meaning set forth in Section 6 17 of this Agreement supersedes any such definitions in the Plan.
(ii) On the effective date of a Change of Control (as defined in subsection (iv) below), fifty percent (50%) of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of Control), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.
(iii) If this Agreement is terminated by the Company without Cause or by the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Change of Control, all of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable on the later of the date of termination or the Change of Control; provided, that if any unvested portion of a Stock Award terminates or is forfeited in the case of the termination of this Agreement before a Change of Control, the Company will make a cash payment to the Executive, no later than ten (10) days after the effective date of the Change of Control, equal to the economic value of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate fair market value of the shares underlying that portion of the option at the time of the Change of Control, and for stock awards as the aggregate fair market value of the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5).
Appears in 5 contracts
Samples: Non Statutory Stock Option Agreement (Stellent Inc), Non Statutory Stock Option Agreement (Gander Mountain Co), Non Statutory Stock Option Agreement (Gander Mountain Co)
Acceleration of Vesting. The provisions concerning vesting In the event of a Fundamental Change the Committee may, but shall not be obligated to:
(a) if the Fundamental Change is a merger or consolidation or statutory share exchange, make appropriate provision for the protection of this Option by the substitution for this Option of options or voting common stock of the corporation surviving any merger or consolidation or, if appropriate, the parent corporation of the Company or such surviving corporation; or
(b) at least ten days before the occurrence of the Fundamental Change, declare, and provide written notice to the Optionee of the declaration, that this Option, whether or not then exercisable, shall be canceled at the time of, or immediately before the occurrence of, the Fundamental Change (unless it shall have been exercised prior to the occurrence of the Fundamental Change). In connection with any such declaration, the Committee may, but shall not be obligated to, cause payment to be made to the Optionee of cash equal to, for each Share covered by the canceled Option, the amount, if any, by which the Fair Market Value per Share exceeds the exercise price per Share covered by this Option. At the time of any such declaration, this Option shall immediately become exercisable in full and the Optionee shall have the right, during the period preceding the time of cancellation of this Option, to exercise this Option as to all or any part of the Shares covered by this Option. In the event of a declaration pursuant to clauses (i)this subsection, (ii) and (iii) below will be cumulativeto the extent this Option has not been exercised prior to the Fundamental Change, and are hereby deemed to be a the unexercised part of all stock optionsthis Option shall be canceled at the time of, restricted stock and such other awards granted during or immediately before, the term Fundamental Change, as provided in the declaration. Notwithstanding the foregoing, the holder of this Option shall not be entitled to the Original Employment Agreement or payment provided for in this Agreement subsection if this Option shall have expired pursuant to the Company’s stock option and equity incentive award plans Section 5 above or agreements and any shares of stock issued upon exercise thereof, (each a “Stock Award”), and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.
(i) If the Executive’s employment is terminated by the Company without Cause, by the Executive for Good Reason, or as a result of the Executive’s death or Disability (all as defined in Section 6 below), the Executive’s outstanding unvested Stock Awards that would have vested over the twelve (12) month period following the date of termination had the Executive remained continuously employed by the Company during such period, will be automatically vested and exercisable on the date of terminationbeen cancelled. For purposes of this Section 2.6(b)subsection only, “Fair Market Value” per Share has the definition of Cause, Good Reason and Disability meaning set forth in Section 6 17 of this Agreement supersedes any such definitions in the Plan.
(ii) On the effective date of a Change of Control (as defined in subsection (iv) below), fifty percent (50%) of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of Control), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.
(iii) If this Agreement is terminated by the Company without Cause or by the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Change of Control, all of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable on the later of the date of termination or the Change of Control; provided, that if any unvested portion of a Stock Award terminates or is forfeited in the case of the termination of this Agreement before a Change of Control, the Company will make a cash payment to the Executive, no later than ten (10) days after the effective date of the Change of Control, equal to the economic value of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate fair market value of the shares underlying that portion of the option at the time of the Change of Control, and for stock awards as the aggregate fair market value of the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5).
Appears in 3 contracts
Samples: Incentive Stock Option Agreement (Stellent Inc), Incentive Stock Option Agreement (Stellent Inc), Incentive Stock Option Agreement (Gander Mountain Co)
Acceleration of Vesting. The provisions concerning vesting pursuant to clauses (i), (iia) and (iii) below will be cumulative, and are hereby deemed to be a part In the event that of all stock options, restricted stock and such other awards granted during the term of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof, (each a “Stock Award”), and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.
(i) If the Executive’s employment is terminated by the Company without Cause, by the Executive for Good Reason, or as a result of the ExecutiveRecipient’s death or Disability (all as defined in Section 6 belowthe Plan), the Executive’s outstanding all unvested Restricted Stock Awards that would have vested over the twelve (12) month period following Units shall immediately vest as of the date of termination had death or Disability.
(b) In the Executive remained continuously employed by event of a Change of Control, and the Company during Recipient is not a Participant in such periodChange in Control, will be automatically vested and exercisable on all unvested Restricted Stock Units shall immediately vest as of the date of termination. such Change of Control.
(c) In the event of a Corporate Transaction in which the Restricted Stock Units are not to be Appropriately Replaced at or prior to the effective time of such Corporate Transaction, the vesting of all Restricted Stock Units which are not otherwise fully vested shall automatically accelerate so that all such Restricted Stock Units shall, immediately prior to the effective time of the Corporate Transaction, become fully vested, free of all restrictions.
(d) For purposes of this Section 2.6(b2.3:
(i) Restricted Stock Units shall be considered “Appropriately Replaced” if, at or prior to the Corporate Transaction, in the judgment of the Committee as constituted at the time the Corporate Transaction is proposed or announced to the Company (the “Evaluating Committee”), the definition Restricted Stock Units or a substituted award will confer the right to receive, for each share of CauseCommon Stock that may be received pursuant to the Restricted Stock Units existing immediately prior to the Corporate Transaction, Good Reason on substantially the same vesting and Disability in Section 6 of this Agreement supersedes any such definitions other terms and conditions as were applicable to the Restricted Stock Units immediately prior to the Corporate Transaction, the consideration (whether stock, cash or other securities or property) to be received in the Plan.
(ii) On Corporate Transaction by holders of Common Stock for each such share held on the effective date of such transaction (and if holders were offered a Change choice of Control (as defined in subsection (iv) below)consideration, fifty percent (50%) the type of consideration chosen by the holders of a majority of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion shares of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of ControlCommon Stock), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.
(iii) If this Agreement is terminated by the Company without Cause or by the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Change of Control, all of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable on the later of the date of termination or the Change of Control; provided, however, that if any unvested portion of a Stock Award terminates or is forfeited such consideration to be received in the case transaction constituting a Corporate Transaction is not solely cash and/or common stock of the termination of this Agreement before a Change of Controlsuccessor company or its parent or subsidiary, the Company will make a cash payment Evaluating Committee may, if the obligations are to be assumed by the Executivesuccessor company, no later than ten (10) days after or its parent or subsidiary, approve that the effective date consideration to be received upon the exercise or vesting of the Change of Control, equal to Restricted Stock Units (or the economic value substituted award) will be common stock of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate successor company or its parent or subsidiary substantially equal in fair market value to the per-share consideration received by holders of Common Stock in the shares underlying that portion transaction constituting a Corporate Transaction. The determination of the option at the time such substantial equality of the Change of Control, and for stock awards as the aggregate fair market value of consideration shall be made by the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), Evaluating Committee in its sole discretion and the regulations its determination shall be conclusive and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5)binding.
Appears in 3 contracts
Samples: Restricted Stock Unit Agreement (Reading International Inc), Restricted Stock Unit Agreement (Reading International Inc), Restricted Stock Unit Agreement (Reading International Inc)
Acceleration of Vesting. The provisions concerning vesting pursuant to clauses (ia) In the event of Optionee’s death or Disability (as defined in the Plan), (ii) and (iii) below will be cumulative, and are hereby deemed to be a part of all stock options, restricted stock and such other awards granted during the term Unvested Options shall immediately vest as of the Original Employment Agreement date of death or this Agreement pursuant to the Company’s stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof, (each a “Stock Award”), and to supersede any less favorable provision in any agreement or plan regarding such Stock AwardDisability.
(ib) If In the Executive’s employment event that, within twenty-four months after a Change in Control, Optionee service as a Director is terminated by the Company without Causeor any successor Person, by or Resigns For Good Reason, and the Executive Optionee is not a Participant in such Change in Control, the vesting of all Unvested Options which are not otherwise fully vested shall automatically accelerate so that all such Unvested Options shall, immediately when the Optionee service as a Director is terminated or Resigns for Good Reason, become fully vested, free of all restrictions.
(c) In the event of a Corporate Transaction in which the Unvested Options are not to be Appropriately Replaced at or prior to the effective time of such Corporate Transaction, the vesting of all Unvested Options which are not otherwise fully vested shall automatically accelerate so that all such Unvested Options shall, immediately prior to the effective time of the Corporate Transaction, become fully vested, free of all restrictions.
(d) In the event that, within twenty-four months after a Corporate Transaction at or prior to which the Unvested Options have been Appropriately Replaced, Optionee service as a result of the Executive’s death or Disability (all as defined in Section 6 below), the Executive’s outstanding unvested Stock Awards that would have vested over the twelve (12) month period following the date of termination had the Executive remained continuously employed Director is terminated by the Company during or any successor Person, or Resigns For Good Reason, and the Optionee is not a Participant in such periodCorporate Transaction, will be the vesting of all Unvested Options (or the substitute awards by which the Unvested Options are Appropriately Replaced) which are not otherwise fully vested shall automatically vested and exercisable on accelerate so that all such Unvested Options (or such substitute awards) shall, immediately when the date Optionee’s service as a Director is terminated or Resigns For Good Reason, become fully vested, free of termination. all restrictions.
(e) For purposes of this Section 2.6(bII.C.:
i. Unvested Options shall be considered “Appropriately Replaced” if, in addition to providing for acceleration as provided in clause (d) of this Section II.C., at or prior to the Corporate Transaction, in the judgment of the Committee as constituted at the time the Corporate Transaction is proposed or announced to the Company (the “Evaluating Committee”), the definition Unvested Options or a substituted award will confer the right to receive, for each share of CauseCommon Stock that may be received pursuant to the Unvested Options existing immediately prior to the Corporate Transaction, on substantially the same vesting and other terms and conditions (including acceleration if the Optionee is Terminated Without Cause or Resigns For Good Reason and Disability in Section 6 of this Agreement supersedes any such definitions Reason) as were applicable to the Unvested Options immediately prior to the Corporate Transaction, the consideration (whether stock, cash or other securities or property) to be received in the Plan.
(ii) On Corporate Transaction by holders of Common Stock for each such share held on the effective date of such transaction (and if holders were offered a Change choice of Control (as defined in subsection (iv) below)consideration, fifty percent (50%) the type of consideration chosen by the holders of a majority of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion shares of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of ControlCommon Stock), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.
(iii) If this Agreement is terminated by the Company without Cause or by the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Change of Control, all of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable on the later of the date of termination or the Change of Control; provided, however, that if any unvested portion of a Stock Award terminates or is forfeited such consideration to be received in the case transaction constituting a Corporate Transaction is not solely cash and/or common stock of the termination of this Agreement before a Change of Controlsuccessor company or its parent or subsidiary, the Company will make a cash payment Evaluating Committee may, if the obligations are to be assumed by the Executivesuccessor company, no later than ten (10) days after or its parent or subsidiary, approve that the effective date consideration to be received upon the exercise or vesting of the Change of Control, equal to Unvested Options (or the economic value substituted award) will be common stock of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate successor company or its parent or subsidiary substantially equal in fair market value to the per-share consideration received by holders of Common Stock in the shares underlying that portion transaction constituting a Corporate Transaction. The determination of the option at the time such substantial equality of the Change of Control, and for stock awards as the aggregate fair market value of consideration shall be made by the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), Evaluating Committee in its sole discretion and the regulations its determination shall be conclusive and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5)binding.
Appears in 2 contracts
Samples: Stock Option Agreement (Reading International Inc), Stock Option Agreement (Reading International Inc)
Acceleration of Vesting. The provisions concerning vesting pursuant (a) All Options shall immediately vest and become exercisable immediately prior to clauses a Change in Control. Any Options remaining unexercised upon a Change in Control shall lapse upon such Change in Control and shall be null and void.
(b) No Options granted under the Plan may be exercised more than ten years from the Grant Date. Upon the termination of the Optionee’s employment with or service to the Company for the reasons set forth below, the Options may be exercised as follows:
(i)) In the event of the death of an Optionee (i) while an employee or a Nonemployee Director of the Company, (ii) and (iii) below will be cumulative, and are hereby deemed to be a part of all stock options, restricted stock and such other awards granted during the term of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof, (each a “Stock Award”), and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.
(i) If the Executive’s employment is terminated by the Company without Cause, by the Executive for Good Reason, or as a result of the Executive’s death or Disability (all as defined in Section 6 below), the Executive’s outstanding unvested Stock Awards that would have vested over within the twelve (12) month period following after termination of employment with or service to the Company because of total and permanent disability, as defined in Code Section 105(d)(4), or (iii) within the three (3) year period after termination of employment with or service to the Company because of normal or late retirement, as those terms are defined in II-VI’s profit sharing plan, any unvested portion of such Optionee’s Options will immediately vest and may be exercised by the Optionee’s estate at any time, or from time to time, within one (1) year of the date of termination had such Optionee’s death but in no event later than the Executive remained continuously employed by the Company during such period, will be automatically vested and exercisable on the date of termination. For purposes of this Section 2.6(b), the definition of Cause, Good Reason and Disability in Section 6 of this Agreement supersedes any such definitions in the PlanExpiration Date.
(ii) On If an Optionee’s employment with or service to the effective date Company shall terminate because of a Change of Control (total and permanent disability, as defined in subsection (iv) belowCode Section 105(d)(4), fifty percent any unvested portion of such Optionee’s Options will immediately vest and may be exercised at any time, or from time to time, within twelve (50%12) months of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion date of any outstanding Stock Award that remains unvested after the application termination of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for employment or replaced (and which therefore is still in effect after the Change of Control), will continue to vest on the same scheduleservice, but in no event later than the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapseExpiration Date.
(iii) If an Optionee’s employment with or service to the Company shall terminate because of his normal or late retirement as those terms are defined in the Company’s profit sharing plan, or, in the case of a Nonemployee Director, upon the attainment of 9 years of service on the Board, any unvested portion of such Optionee’s Options will continue to vest and become exercisable in accordance with the schedule set forth under Section 2 of this Agreement is terminated and may be exercised by the Company without Cause Optionee at any time, or from time to time, prior to the Expiration Date.
(iv) Except as otherwise provided by the Executive Committee , in its sole discretion, if an Optionee’s employment with or service to the Company shall terminate for Good Reason within six (6) months prior to any reason other than death, total and permanent disability, normal or twentylate retirement as those terms are defined in II-four (24) months following a Change of ControlVI’s profit sharing plan, all or Cause, the non-vested portion of the Executive’s outstanding unvested Stock Awards will Option shall be automatically vested deemed canceled and exercisable forfeited on the later date of Optionee’s termination of employment or services and the vested portion of the Option, if any, as of the date of such termination shall remain exercisable for the lesser of (i) a period of 90 calendar days following such termination of employment or service, or (ii) until the Change of Control; provided, that if Expiration Date.
(v) Notwithstanding any unvested portion of a Stock Award terminates or is forfeited in the case of the termination provision of this Agreement before a Change of Controlto the contrary, if an Optionee’s employment with or service to the Company will make a cash payment shall terminate for Cause, all of such Optionee’s rights to exercise the Executive, no later than ten Options (10whether vested or unvested) days after shall terminate on the effective date of the Change such termination of Control, equal to the economic value of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate fair market value of the shares underlying that portion of the option at the time of the Change of Control, and for stock awards as the aggregate fair market value of the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments employment or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5)service.
Appears in 1 contract
Acceleration of Vesting. The provisions concerning vesting pursuant to clauses
(ia) In the event of Optionee's death or Disability (as defined in the Plan), (ii) and (iii) below will be cumulative, and are hereby deemed to be a part of all stock options, restricted stock and such other awards granted during the term Unvested Options shall immediately vest as of the Original Employment Agreement date of death or this Agreement pursuant to the Company’s stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof, (each a “Stock Award”), and to supersede any less favorable provision in any agreement or plan regarding such Stock AwardDisability.
(ib) If In the Executive’s employment event that, within twenty-four months after a Change in Control, Optionee is terminated Terminated Without Cause by the Company without Causeor any successor Person, by or Resigns For Good Reason, and the Executive Optionee is not a Participant in such Change in Control, the vesting of all Unvested Options which are not otherwise fully vested shall automatically accelerate so that all such Unvested Options shall, immediately when the Optionee is Terminated Without Cause or Resigns for Good Reason, become fully vested, free of all restrictions.
(c) In the event of a Corporate Transaction in which the Unvested Options are not to be Appropriately Replaced at or as a result prior to the effective time of such Corporate Transaction, the vesting of all Unvested Options which are not otherwise fully vested shall automatically accelerate so that all such Unvested Options shall, immediately prior to the effective time of the Executive’s death Corporate Transaction, become fully vested, free of all restrictions.
(d) In the event that, within twenty-four months after a Corporate Transaction at or Disability (all as defined in Section 6 below)prior to which the Unvested Options have been Appropriately Replaced, the Executive’s outstanding unvested Stock Awards that would have vested over the twelve (12) month period following the date of termination had the Executive remained continuously employed Optionee is Terminated Without Cause by the Company during or any successor Person, or Resigns For Good Reason, and the Optionee is not a Participant in such periodCorporate Transaction, will be the vesting of all Unvested Options (or the substitute awards by which the Unvested Options are Appropriately Replaced) which are not otherwise fully vested shall automatically vested and exercisable on accelerate so that all such Unvested Options (or such substitute awards) shall, immediately when the date Optionee is Terminated Without Cause or Resigns For Good Reason, become fully vested, free of terminationall restrictions.
(e) For purposes of this Section 2.6(bII.C.:
(i) Unvested Options shall be considered "Appropriately Replaced" if, in addition to providing for acceleration as provided in clause (d) of this Section II.C., at or prior to the Corporate Transaction, in the judgment of the Committee as constituted at the time the Corporate Transaction is proposed or announced to the Company {the "Evaluating Committee"), the definition Unvested Options or a substituted award will confer the right to receive, for each share of CauseCommon Stock that may be received pursuant to the Unvested Options existing immediately prior to the Corporate Transaction, on substantially the same vesting and other terms and conditions (including acceleration if the Optionee is Terminated Without Cause or Resigns For Good Reason and Disability in Section 6 of this Agreement supersedes any such definitions Reason) as were applicable to the Unvested Options immediately prior to the Corporate Transaction, the consideration (whether stock, cash or other securities or property) to be received in the Plan.
(ii) On Corporate Transaction by holders of Common Stock for each such share held on the effective date of such transaction (and if holders were offered a Change choice of Control (as defined in subsection (iv) below)consideration, fifty percent (50%) the type of consideration chosen by the holders of a majority of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion shares of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of ControlCommon Stock), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.
(iii) If this Agreement is terminated by the Company without Cause or by the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Change of Control, all of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable on the later of the date of termination or the Change of Control; provided, however, that if any unvested portion of a Stock Award terminates or is forfeited such consideration to be received in the case transaction constituting a Corporate Transaction is not solely cash and/or common stock of the termination of this Agreement before a Change of Controlsuccessor company or its parent or subsidiary, the Company will make a cash payment Evaluating Committee may, if the obligations are to be assumed by the Executivesuccessor company, no later than ten (10) days after or its parent or subsidiary, approve that the effective date consideration to be received upon the exercise or vesting of the Change of Control, equal to Unvested Options (or the economic value substituted award) will be common stock of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate successor company or its parent or subsidiary substantially equal in fair market value to the per-share consideration received by holders of Common Stock in the shares underlying that portion transaction constituting a Corporate Transaction. The determination of the option at the time such substantial equality of the Change of Control, and for stock awards as the aggregate fair market value of consideration shall be made by the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), Evaluating Committee in its sole discretion and the regulations its determination shall be conclusive and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5)binding.
Appears in 1 contract
Acceleration of Vesting. The provisions concerning vesting pursuant to clauses (i)Except as provided below, (ii) your rights in and (iii) below will be cumulative, and are hereby deemed to be a part of all stock options, restricted stock and such other awards granted during the term of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option Units shall terminate on the termination date of your employment by any company in a group of companies consisting of Deluxe and equity incentive award plans or agreements and its Affiliates, which is not followed by your immediate re-employment by any shares other member of stock issued upon exercise thereofsaid group, (each a “Stock Award”), and for any reason if that termination occurs prior to supersede any less favorable provision in any agreement or plan regarding such Stock Award.
(i) the Expiration Date. If the Executive’s your employment is terminated prior to the Expiration Date by action of Deluxe or any Affiliate other than for Cause (as hereinafter defined), you will receive a payment from Deluxe equal to the Company without Causeportion of your cash incentive award that you elected to apply to the acquisition of Units (“Base Amount”) plus any earned but unpaid dividend equivalents thereon payable in shares of Common Stock, by the Executive for Good Reasoncash, or as a result combination of the Executive’s death or Disability two in the discretion of the Committee (all as defined in Section 6 belowless any applicable tax withholding), the Executive’s outstanding unvested Stock Awards that would have vested over the twelve (12) month period made as expeditiously as practicable, but not more than 75 days, following the date of termination had the Executive remained continuously employed by the Company during such period, will be automatically vested and exercisable on the date of termination. For purposes If you voluntarily resign or are terminated for Cause prior to the Expiration Date, you will receive a payment from Deluxe payable in shares of this Section 2.6(b)Common Stock, cash, or a combination of the definition of Cause, Good Reason and Disability in Section 6 of this Agreement supersedes any such definitions two in the Plan.
discretion of the Committee equal to the lesser of (iia) On the Base Amount or (b) an amount equal to the number of Units attributable to the Base Amount as of the issue date multiplied by the closing price of the Common Stock on the effective date of your resignation or termination for Cause, which payment (less any applicable tax withholding) will be made as expeditiously as practicable, but not more than 75 days, following the effective date of your resignation. In order to satisfy the requirements of Section 409A of the Internal Revenue Code and the IRS regulations thereunder (“Section 409A”), the following provisions will apply. If your employment is terminated prior to the Expiration Date, but the termination does not constitute a “separation from service” as defined in Section 409A, then you will have the right to receive the payment described in the preceding paragraph, but the payment will be deferred until the earliest of the date on which you incur a separation from service as defined in Section 409A, the Expiration Date, or the date on which a change in control event occurs as defined in Section 409A (as described below). This could occur if, for example, your employment is terminated but you are retained as a consultant or independent contractor to provide services to Deluxe or an Affiliate at a rate which is at least 50% of the rate at which you were providing services as an employee. It is also possible that you may incur a separation from service as defined in Section 409A even though your employment has not been terminated, for example if you become a part-time employee and are providing services at a rate that is less than 50% of the rate at which you provided services as a full-time employee. If this were to occur you would receive a payment as described in the preceding paragraph calculated as if your employment had been terminated by Deluxe without Cause. The provisions of this paragraph shall also apply to the issuance of shares to which you are entitled upon your Approved Retirement as provided in the next paragraph if your Approved Retirement does not constitute a separation from service. Prior to the Expiration Date, all restrictions applicable to the Units shall lapse and the Units shall vest fully and the shares of Common Stock represented thereby will be issued to you or your heirs, executors, administrators, estate or representatives, as applicable as expeditiously as practicable, but not more than 75 days, after your death, Disability or Approved Retirement (as such terms are defined in the Addendum). Prior to the Expiration Date, all restrictions applicable to the Units shall lapse and the Units shall vest fully and the shares of Common Stock represented thereby will be issued to you, subject to the limitations provided herein, if there shall occur a Change of Control (as defined in subsection (iv) below), fifty percent (50%hereinafter defined) of the Executive’s outstanding unvested Stock Awards will Deluxe. Such issuance shall be automatically vested and exercisable. The portion of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity planmade as expeditiously as practicable, and which has been continuedbut not more than 75 days, assumed, substituted for or replaced (and which therefore is still in effect after following the Change of Control), will continue subject to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting hereinfollowing. If a the Change of Control occurs and the Executive’s unvested does not constitute a “change in control event” as defined in Section 409A, then your right to receive shares of Common Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards described above will become fully vested and exercisable and all forfeiture restrictions vested, but issuance of the shares shall not occur until the earliest of the date on which you incur a separation from service as defined in Section 409A, the Expiration Date, the date of your Disability or the date on which a change in control event as defined in Section 409A occurs. If as a result of the Change of Control shares of Common Stock are converted into another form of property, such as stock of a company with which Deluxe is merged, or into the right to a cash payment, then in lieu of the shares of Common Stock Awards you will lapse.
(iii) If this Agreement is terminated by receive the Company without Cause cash or by other property that you would have received had you owned the Executive for Good Reason within six (6) months shares of Common Stock immediately prior to the Change of Control. Notwithstanding any other provision of this Agreement, if you are a “specified employee” as defined in Section 409A at the time any amount would otherwise become payable to you by reason of a separation from service as defined in Section 409A (including any shares of Common Stock that become issuable upon an Approved Retirement, or twenty-four (24) months following upon the occurrence of a Change of Control, all but the issuance of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable on the later of the date of termination or the Change of Control; provided, that if any unvested portion of which is deferred until a Stock Award terminates or is forfeited in the case of the termination of this Agreement before a Change of Control, the Company will make a cash payment to the Executive, no later than ten (10) days after the effective date of the Change of Control, equal to the economic value of the terminated unvested portion of the Stock Award to the Executive at the time of separation from service because the Change of Control did not constitute a change in control event), such payment shall not occur until the first business day that is more than six months following the date of such separation from service (calculated for stock options as or, if earlier, the difference between the aggregate exercise price date of that portion of the option and the aggregate fair market value of the shares underlying that portion of the option at the time of the Change of Control, and for stock awards as the aggregate fair market value of the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the sharesyour death). Notwithstanding In general, “specified employees” are the foregoing, to the extent that the Company determines that any 50 most highly compensated officers and policy making personnel of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), Deluxe and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5)its Affiliates.
Appears in 1 contract
Samples: Restricted Stock Unit Award Agreement (Deluxe Corp)
Acceleration of Vesting. The provisions concerning vesting pursuant (a) In the event your employment with Deluxe is terminated by reason of death, Disability (as defined in the Addendum) or Approved Retirement (as defined in the Addendum) any time during the Restricted Period, all of the yet unvested Units will vest and the Units shall become non-forfeitable as of the date of such termination.
(b) Subject to clauses subparagraph 4(c), in the event (i), ) your employment is terminated on or prior to the second anniversary of the Award Date and is (x) by the Company without Cause or (y) by you for Good Reason; and (ii) you execute and do not rescind a Release (iiias defined in the Employment Agreement) below will be cumulativeand remain at all times in material compliance with the restrictive covenants applicable to you, including but not limited to those continuing obligations set forth in the Employment Agreement, your Units shall continue to vest in accordance with timing set forth in Section 2 of this Agreement for the duration of the Restricted Period.
(c) Notwithstanding any provision contained in this Agreement that would result in Units vesting in full or in part at a later date, if, in connection with any Change of Control, the acquiring Person, surviving or acquiring corporation or entity, or an Affiliate of such corporation or entity, elects to assume the obligations of Deluxe under this Agreement and to replace the Shares issuable upon settlement of the Units with other equity securities that are listed on a national securities exchange (including by use of American Depository Receipts or any similar method) and are hereby deemed to be a part of freely transferable under all stock options, restricted stock applicable federal and such other awards granted during the term of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option state securities laws and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof, regulations (each a “Stock AwardReplacement Equity Securities”), the Units then subject to restriction shall continue to vest as set forth in Section 2, provided, however, the Units shall vest in full and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.become non-forfeitable if, within twelve months of the date of the Change of Control:
(i) If Your employment with the Executive’s employment Company is terminated by the Company without Cause, ,
(ii) Your employment with the Company is terminated by the Executive you for Good Reason, or as a result of the Executive’s death or Disability (all as defined in Section 6 below), the Executive’s outstanding unvested Stock Awards that would have vested over the twelve (12) month period following the date of termination had the Executive remained continuously employed by the Company during such period, will be automatically vested and exercisable on the date of termination. For purposes of this Section 2.6(b), the definition of Cause, Good Reason and Disability in Section 6 of this Agreement supersedes any such definitions in the Plan.
(ii) On the effective date of a Change of Control (as defined in subsection (iv) below), fifty percent (50%) of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of Control), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.or
(iii) If Vesting would otherwise occur on any earlier date as provided under this Agreement. In the event of any such Change of Control, the number of Replacement Equity Securities issuable under this Agreement is terminated shall be determined by the Company without Cause or by Committee in accordance with Section 4(c) of the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Plan. In the event of any such Change of Control, all references herein to the Shares shall thereafter be deemed to refer to the Replacement Equity Securities, references to Deluxe or the Company shall thereafter be deemed to refer to the issuer of such Replacement Equity Securities, and all other terms of this Agreement shall continue in effect except as and to the Executive’s outstanding unvested Stock Awards will be automatically vested extent modified by this subparagraph.
(d) If the Change of Control does not meet the continuation or replacement criteria specified in Section 4(c) above, all Units then subject to restriction shall vest in full immediately and exercisable on the later of the date of termination or become non-forfeitable upon the Change of Control; provided, that if any unvested portion of a Stock Award terminates or is forfeited in the case of the termination .
(e) The provisions of this Agreement before a Change of Control, the Company will make a cash payment Section 4 shall be subject to the Executive, no later than ten (10Sections 5(b) days after the effective date of the Change of Control, equal to the economic value of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate fair market value of the shares underlying that portion of the option at the time of the Change of Control, and for stock awards as the aggregate fair market value of the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5)8.
Appears in 1 contract
Samples: Restricted Stock Unit Award Agreement (Deluxe Corp)
Acceleration of Vesting. The provisions concerning vesting pursuant to clauses (i), (ii) and (iii) below will be cumulative, and are hereby deemed to be a part of all stock options, restricted stock and such other awards granted during the term of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof, (each a “Stock Award”), and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.
(i) If the Executive’s employment is terminated by the Company without Cause, by the Executive for Good Reason, or as a result of the Executive’s death or Disability (all as defined in Section 6 below), the Executive’s outstanding unvested Stock Awards that would you have vested over the twelve (12) month period following the date of termination had the Executive remained been continuously employed by the Company during such period, will be automatically vested and exercisable on or a Subsidiary from the date of termination. For purposes this Agreement until the consummation of this Section 2.6(b)a Sale of the Company, the definition portion of Cause, Good Reason your outstanding Option which has not become vested as of the date of such event shall immediately vest and Disability in Section 6 become exercisable with respect to 100% of this Agreement supersedes any the Time Shares immediately prior to the consummation of such definitions in Sale of the Plan.Company;
(ii) On If you have been continuously employed by the effective Company or a Subsidiary from the date of this Agreement until the consummation of a Change of Control (as defined in subsection (iv) below), fifty percent (50%) Sale of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The Company prior to the fifth anniversary of the Closing Date, the portion of any your outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and Option which has been continued, assumed, substituted not become eligible for or replaced (vesting at the date of such event shall immediately vest and which therefore is still in effect after the Change of Control), will continue become exercisable with respect to vest on the same schedule, but the number of shares the Performance Shares equal to (a) the number of Performance Shares which would have been subject to vesting on each installment will be reduced on a pro rata basis after the date of the consummation of such Sale of the Company multiplied by (b) your Current Vested Performance Percentage as of the date of the consummation of such Sale of the Company. For example, if (x) the Company has met the EBITDA Goal for the Company's fiscal
(1) Such Performance Shares shall vest and become exercisable immediately prior to take into account the accelerated vesting herein. If a Change consummation of Control occurs and such Sale of the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapseCompany.
(iii) If this Agreement is terminated Notwithstanding Section 2(d)(ii) hereof, if you have been continuously employed by the Company without Cause or a Subsidiary from the date of this Agreement until the consummation of a Sale of the Company prior to the fifth anniversary of the Closing Date and pursuant to which the GTCR Investors receive Cash Inflows in an aggregate amount in excess of three (3.0) times the GTCR Investors' aggregate Cash Outflows with respect to the GTCR Investors' Preferred Shares and Common Shares (assuming vesting of Common Shares and all options to acquire Common Shares to be vested in connection with such Sale of the Company), the portion of your outstanding Option which has not become vested at the date of such event (whether due to a failure to meet EBITDA Goals or otherwise) shall immediately vest and become exercisable with respect to 100% of the Performance Shares. Such Performance Shares shall vest and become exercisable immediately prior to the consummation of such Sale of the Company.
(iv) Notwithstanding any provision to the contrary in this Agreement, if you have been continuously employed by the Executive for Good Reason within six Company or a Subsidiary from the date of this Agreement until the consummation of a Sale of the Company, in the event of a Sale of the Company, the Board may provide, in its sole discretion, that your Option (6or a portion thereof) months shall immediately vest and become exercisable with respect to your Performance Shares in connection with such Sale of the Company.
(v) Notwithstanding any provision to the contrary in this Agreement, in any event, any portion of your Option which has not been exercised prior to or twenty-four (24) months following a Change of Control, all in connection with the Sale of the Executive’s outstanding unvested Stock Awards will Company shall expire and be automatically vested and exercisable on forfeited, unless otherwise determined by the later Committee in its sole discretion.
(1) Note: The 27% would equal (a) 40% (i.e. the portion of Performance Shares which would have been subject to vesting after the date of the consummation of such Sale of the Company) multiplied by (b) 66.67% (i.e. the Current Vested Performance Percentage as of the date of termination or the Change consummation of Control; provided, that if any unvested portion of a Stock Award terminates or is forfeited in the case such Sale of the termination of this Agreement before a Change of Control, the Company will make a cash payment to the Executive, no later than ten (10) days after the effective date of the Change of Control, equal to the economic value of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate fair market value of the shares underlying that portion of the option at the time of the Change of Control, and for stock awards as the aggregate fair market value of the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5Company).
Appears in 1 contract
Samples: Nonqualified Stock Option Agreement (HealthSpring, Inc.)
Acceleration of Vesting. The provisions concerning vesting pursuant (a) In the event your employment with Deluxe is terminated by reason of death, Disability (as defined in the Addendum) or Approved Retirement (as defined in the Addendum) any time during the Restricted Period, all of the yet unvested Units will vest and the Units shall become non-forfeitable as of the date of such termination.
(b) Subject to clauses (iSection 4(c), in the event your employment is terminated [during/on or after the first anniversary of the Award Date but prior to the end of] the Restricted Period by reason of involuntary termination without Cause, a pro rata portion of the next segment of Units scheduled to vest after the termination date (iibased on the number of completed days between the termination date and the scheduled vesting date immediately prior to the termination date (or the Award Dateif there was no such scheduled vesting date) divided by 365) shall vest and become non-forfeitable as of the date of such termination.
(c) Notwithstanding any provision contained in this Agreement that would result in Units vesting in full or in part at a later date, if, in connection with any Change of Control, the acquiring Person, surviving or acquiring corporation or entity, or an Affiliate of such corporation or entity, elects to assume the obligations of Deluxe under this Agreement and to replace the Shares issuable upon settlement of the Units with other equity securities that are listed on a national securities exchange (including by use of American Depository Receipts or any similar method) and are freely transferable under all applicable federal and state securities laws and regulations (iii) below will be cumulative, and are hereby deemed to be a part of all stock options, restricted stock and such other awards granted during the term of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof, (each a “Stock AwardReplacement Equity Securities”), the Units then subject to restriction shall continue to vest as set forth in Section 2, provided, however, the Units shall vest in full and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.become non-forfeitable if, within twelve months of the date of the Change of Control:
(i) If Your employment with the Executive’s employment Company is terminated by the Company without Cause, ,
(ii) Your employment with the Company is terminated by the Executive you for Good Reason, or as a result of the Executive’s death or Disability (all as defined in Section 6 below), the Executive’s outstanding unvested Stock Awards that would have vested over the twelve (12) month period following the date of termination had the Executive remained continuously employed by the Company during such period, will be automatically vested and exercisable on the date of termination. For purposes of this Section 2.6(b), the definition of Cause, Good Reason and Disability in Section 6 of this Agreement supersedes any such definitions in the Plan.
(ii) On the effective date of a Change of Control (as defined in subsection (iv) below), fifty percent (50%) of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of Control), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.or
(iii) If Vesting would otherwise occur on any earlier date as provided under this Agreement. In the event of any such Change of Control, the number of Replacement Equity Securities issuable under this Agreement is terminated shall be determined by the Company without Cause or by Committee in accordance with Section 4(c) of the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Plan. In the event of any such Change of Control, all references herein to the Shares shall thereafter be deemed to refer to the Replacement Equity Securities, references to Deluxe or the Company shall thereafter be deemed to refer to the issuer of such Replacement Equity Securities, and all other terms of this Agreement shall continue in effect except as and to the Executive’s outstanding unvested Stock Awards will be automatically vested extent modified by this subparagraph.
(d) If the Change of Control does not meet the continuation or replacement criteria specified in Section 4(c) above, all Units then subject to restriction shall vest in full immediately and exercisable on the later of the date of termination or become non-forfeitable upon the Change of Control; provided, that if any unvested portion of a Stock Award terminates or is forfeited in the case of the termination .
(e) The provisions of this Agreement before a Change of Control, the Company will make a cash payment Section 4 shall be subject to the Executive, no later than ten (10Sections 5(b) days after the effective date of the Change of Control, equal to the economic value of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate fair market value of the shares underlying that portion of the option at the time of the Change of Control, and for stock awards as the aggregate fair market value of the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5)8.
Appears in 1 contract
Samples: Restricted Stock Unit Award Agreement (Deluxe Corp)
Acceleration of Vesting. The provisions concerning vesting pursuant to clauses (i)Except as provided below, (ii) your rights in and (iii) below will be cumulative, and are hereby deemed to be a part of all stock options, restricted stock and such other awards granted during the term of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option Units shall terminate on the termination date of your employment by any company in a group of companies consisting of Deluxe and equity incentive award plans or agreements and its Affiliates, which is not followed by your immediate re-employment by any shares other member of stock issued upon exercise thereofsaid group, (each a “Stock Award”), and for any reason if that termination occurs prior to supersede any less favorable provision in any agreement or plan regarding such Stock Award.
(i) the Expiration Date. If the Executive’s your employment is terminated prior to the Expiration Date by action of Deluxe or any Affiliate other than for Cause (as hereinafter defined), you will receive a payment from Deluxe equal to the Company without Causeportion of your cash incentive award that you elected to apply to the acquisition of Units (“Base Amount”) plus any earned but unpaid dividend equivalents thereon payable in shares of Common Stock, by the Executive for Good Reasoncash, or as a result combination of the Executive’s death or Disability two in the discretion of the Committee (all as defined in Section 6 belowless any applicable tax withholding), the Executive’s outstanding unvested Stock Awards that would have vested over the twelve (12) month period made as expeditiously as practicable, but not more than 75 days, following the date of termination had the Executive remained continuously employed by the Company during such period, will be automatically vested and exercisable on the date of termination. For purposes If you voluntarily resign or are terminated for Cause prior to the Expiration Date, you will receive a payment from Deluxe payable in shares of this Section 2.6(b)Common Stock, cash, or a combination of the definition of Cause, Good Reason and Disability in Section 6 of this Agreement supersedes any such definitions two in the Plan.
discretion of the Committee equal to the lesser of (iia) On the Base Amount or (b) an amount equal to the number of Units attributable to the Base Amount as of the issue date multiplied by the closing price of the Common Stock on the effective date of your resignation or termination for Cause, which payment (less any applicable tax withholding) will be made as expeditiously as practicable, but not more than 75 days, following the effective date of your resignation. In order to satisfy the requirements of Section 409A of the Internal Revenue Code and the IRS regulations thereunder (“Section 409A”), the following provisions will apply. If your employment is terminated prior to the Expiration Date, but the termination does not constitute a “separation from service” as defined in Section 409A, then you will have the right to receive the payment described in the preceding paragraph, but the payment will be deferred until the earliest of the date on which you incur a separation from service as defined in Section 409A, the Expiration Date, or the date on which a change in control event occurs as defined in Section 409A (as described below). This could occur if, for example, your employment is terminated but you are retained as a consultant or independent contractor to provide services to Deluxe or an Affiliate at a rate which is at least 50% of the rate at which you were providing services as an employee. It is also possible that you may incur a separation from service as defined in Section 409A even though your employment has not been terminated, for example if you become a part-time employee and are providing services at a rate that is less than 50% of the rate at which you provided services as a full-time employee. If this were to occur, you would receive a payment as described in the preceding paragraph calculated as if your employment had been terminated by Deluxe without Cause. The provisions of this paragraph shall also apply to the issuance of shares to which you are entitled upon your Approved Retirement as provided in the next paragraph if your Approved Retirement does not constitute a separation from service. Prior to the Expiration Date, all restrictions applicable to the Units shall lapse and the Units shall vest fully and the shares of Common Stock represented thereby will be issued to you or your heirs, executors, administrators, estate or representatives, as applicable as expeditiously as practicable, but not more than 75 days, after your death, Disability or Approved Retirement (as such terms are defined in the Addendum). Prior to the Expiration Date, all restrictions applicable to the Units shall lapse and the Units shall vest fully and the shares of Common Stock represented thereby will be issued to you, subject to the limitations provided herein, if there shall occur a Change of Control (as defined in subsection (iv) below), fifty percent (50%hereinafter defined) of the Executive’s outstanding unvested Stock Awards will Deluxe. Such issuance shall be automatically vested and exercisable. The portion of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity planmade as expeditiously as practicable, and which has been continuedbut not more than 75 days, assumed, substituted for or replaced (and which therefore is still in effect after following the Change of Control), will continue subject to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting hereinfollowing. If a the Change of Control occurs and the Executive’s unvested does not constitute a “change in control event” as defined in Section 409A, then your right to receive shares of Common Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards described above will become fully vested and exercisable and all forfeiture restrictions vested, but issuance of the shares shall not occur until the earliest of the date on which you incur a separation from service as defined in Section 409A, the Expiration Date, the date of your Disability or the date on which a change in control event as defined in Section 409A occurs. If as a result of the Change of Control shares of Common Stock are converted into another form of property, such as stock of a company with which Deluxe is merged, or into the right to a cash payment, then in lieu of the shares of Common Stock Awards you will lapse.
(iii) If this Agreement is terminated by receive the Company without Cause cash or by other property that you would have received had you owned the Executive for Good Reason within six (6) months shares of Common Stock immediately prior to the Change of Control. Notwithstanding any other provision of this Agreement, if you are a “specified employee” as defined in Section 409A at the time any amount would otherwise become payable to you by reason of a separation from service as defined in Section 409A (including any shares of Common Stock that become issuable upon an Approved Retirement, or twenty-four (24) months following upon the occurrence of a Change of Control, all but the issuance of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable on the later of the date of termination or the Change of Control; provided, that if any unvested portion of which is deferred until a Stock Award terminates or is forfeited in the case of the termination of this Agreement before a Change of Control, the Company will make a cash payment to the Executive, no later than ten (10) days after the effective date of the Change of Control, equal to the economic value of the terminated unvested portion of the Stock Award to the Executive at the time of separation from service because the Change of Control did not constitute a change in control event), such payment shall not occur until the first business day that is more than six months following the date of such separation from service (calculated for stock options as or, if earlier, the difference between the aggregate exercise price date of that portion of the option and the aggregate fair market value of the shares underlying that portion of the option at the time of the Change of Control, and for stock awards as the aggregate fair market value of the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the sharesyour death). Notwithstanding In general, “specified employees” are the foregoing, to the extent that the Company determines that any 50 most highly compensated officers and policy making personnel of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), Deluxe and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5)its Affiliates.
Appears in 1 contract
Samples: Restricted Stock Unit Award Agreement (Deluxe Corp)
Acceleration of Vesting. The provisions concerning vesting pursuant (a) In the event your employment with Deluxe is terminated by reason of death, Disability (as defined in the Addendum) or Approved Retirement (as defined in the Addendum) any time during the Restricted Period, all of the yet unvested Units will vest and the Units shall become non-forfeitable as of the date of such termination.
(b) Subject to clauses (iSection 4(c), in the event your employment is terminated during the Restricted Period after the first anniversary of the Award Date by reason of involuntary termination without Cause, a pro rata portion of the next segment of Units scheduled to vest after the termination date (iibased on the number of completed days between the termination date and the scheduled vesting date immediately prior to the termination date (or the Award Date if there was no such scheduled vesting date) divided by 365) shall vest and become non-forfeitable as of the date of such termination.
(c) Notwithstanding any provision contained in this Agreement that would result in Units vesting in full or in part at a later date, if, in connection with any Change of Control, the acquiring Person, surviving or acquiring corporation or entity, or an Affiliate of such corporation or entity, elects to assume the obligations of Deluxe under this Agreement and to replace the Shares issuable upon settlement of the Units with other equity securities that are listed on a national securities exchange (including by use of American Depository Receipts or any similar method) and are freely transferable under all applicable federal and state securities laws and regulations (iii) below will be cumulative, and are hereby deemed to be a part of all stock options, restricted stock and such other awards granted during the term of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof, (each a “Stock AwardReplacement Equity Securities”), the Units then subject to restriction shall continue to vest as set forth in Section 2, provided, however, the Units shall vest in full and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.become non-forfeitable if, within twelve months of the date of the Change of Control:
(i) If Your employment with the Executive’s employment Company is terminated by the Company without Cause, ,
(ii) Your employment with the Company is terminated by the Executive you for Good Reason, or as a result of the Executive’s death or Disability (all as defined in Section 6 below), the Executive’s outstanding unvested Stock Awards that would have vested over the twelve (12) month period following the date of termination had the Executive remained continuously employed by the Company during such period, will be automatically vested and exercisable on the date of termination. For purposes of this Section 2.6(b), the definition of Cause, Good Reason and Disability in Section 6 of this Agreement supersedes any such definitions in the Plan.
(ii) On the effective date of a Change of Control (as defined in subsection (iv) below), fifty percent (50%) of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of Control), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.or
(iii) If Vesting would otherwise occur on any earlier date as provided under this Agreement. In the event of any such Change of Control, the number of Replacement Equity Securities issuable under this Agreement is terminated shall be determined by the Company without Cause or by Committee in accordance with Section 4(c) of the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Plan. In the event of any such Change of Control, all references herein to the Shares shall thereafter be deemed to refer to the Replacement Equity Securities, references to Deluxe or the Company shall thereafter be deemed to refer to the issuer of such Replacement Equity Securities, and all other terms of this Agreement shall continue in effect except as and to the Executive’s outstanding unvested Stock Awards will be automatically vested extent modified by this subparagraph.
(d) If the Change of Control does not meet the continuation or replacement criteria specified in Section 4(c) above, all Units then subject to restriction shall vest in full immediately and exercisable on the later of the date of termination or become non-forfeitable upon the Change of Control; provided, that if any unvested portion of a Stock Award terminates or is forfeited in the case of the termination .
(e) The provisions of this Agreement before a Change of Control, the Company will make a cash payment Section 4 shall be subject to the Executive, no later than ten (10Sections 5(b) days after the effective date of the Change of Control, equal to the economic value of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate fair market value of the shares underlying that portion of the option at the time of the Change of Control, and for stock awards as the aggregate fair market value of the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5)8.
Appears in 1 contract
Samples: Restricted Stock Unit Award Agreement (Deluxe Corp)
Acceleration of Vesting. The provisions concerning vesting pursuant (a) In the event your employment with the Company is terminated by reason of death, Disability or Qualified Retirement during the Restricted Period, all of the Shares will vest (i.e., the restrictions on the Shares shall lapse) and the Shares shall become non-forfeitable and transferable as of the date of such termination.
(b) Subject to clauses (isubparagraph 4(c), in the event your employment is terminated during the Restricted Period by reason of involuntary termination without Cause, a pro-rata portion of the Shares (iibased on the number of completed days elapsed since the Award Date) then subject to restrictions shall vest and become non-forfeitable and transferable as of the date of such termination.
(c) Notwithstanding any provision contained in this Agreement that would result in Shares vesting in full or in part at a later date, if, in connection with any Change of Control, the acquiring Person, surviving or acquiring corporation or entity, or an Affiliate of such corporation or entity, elects to assume the obligations of Deluxe under this Agreement and to replace the Shares issuable under it with other equity securities that are listed on a national securities exchange (including by use of American Depository Receipts or any similar method) and (iii) below will be cumulativeare freely transferable under all applicable federal and state securities laws and regulations, and are hereby deemed the Shares then subject to be a part of all stock optionsrestriction shall vest in full if, restricted stock and such other awards granted during the term within twelve months of the Original Employment Agreement or this Agreement pursuant to date of the Company’s stock option and equity incentive award plans or agreements and any shares Change of stock issued upon exercise thereof, (each a “Stock Award”), and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.Control,
(i) If Your employment with the Executive’s employment Company is terminated by the Company without Cause, ,
(ii) Your employment with the Company is terminated by the Executive you for Good Reason, or as a result of the Executive’s death or Disability (all as defined in Section 6 below), the Executive’s outstanding unvested Stock Awards that would have vested over the twelve (12) month period following the date of termination had the Executive remained continuously employed by the Company during such period, will be automatically vested and exercisable on the date of termination. For purposes of this Section 2.6(b), the definition of Cause, Good Reason and Disability in Section 6 of this Agreement supersedes any such definitions in the Plan.
(ii) On the effective date of a Change of Control (as defined in subsection (iv) below), fifty percent (50%) of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of Control), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.or
(iii) If Vesting would otherwise occur on any earlier date as provided under this Agreement. In the event of any such Change of Control, the number of replacement equity securities issuable under this Agreement is terminated shall be determined by the Company without Cause or by Committee in accordance with Section 4(c) of the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Plan. In the event of any such Change of Control, all references herein to the Shares shall thereafter be deemed to refer to the replacement equity securities, references to Deluxe shall thereafter be deemed to refer to the issuer of such replacement equity securities, and all other terms of this Agreement shall continue in effect except as and to the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable on extent modified by this subparagraph.
(d) If the later Change of Control does not meet the date of termination continuation or replacement criteria specified in subparagraph 4(c) above, all Shares then subject to restriction shall vest in full immediately upon the Change of Control; provided, that if any unvested portion of a Stock Award terminates or is forfeited in the case of the termination of this Agreement before a Change of Control, the Company will make a cash payment to the Executive, no later than ten (10) days after the effective date of the Change of Control, equal to the economic value of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate fair market value of the shares underlying that portion of the option at the time of the Change of Control, and for stock awards as the aggregate fair market value of the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5).
Appears in 1 contract
Acceleration of Vesting. The provisions concerning vesting pursuant to clauses (i), (ii) and (iii) below will be cumulative, and are hereby deemed to be a part In the event that of all stock options, restricted stock and such other awards granted during the term of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof, (each a “Stock Award”), and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.
(i) If the Executive’s employment is terminated by the Company without Cause, by the Executive for Good Reason, or as a result of the ExecutiveRecipient’s death or Disability (all as defined in Section 6 belowthe Plan), the Executive’s outstanding all unvested Restricted Stock Awards that would have vested over the twelve (12) month period following Units shall immediately vest as of the date of termination had death or Disability. In the Executive remained continuously employed event that, within twenty-four months after a Change in Control, Recipient is Terminated Without Cause by the Company during or any successor Person, or Resigns For Good Reason, and the Recipient is not a Participant in such periodChange in Control, will the vesting of all Restricted Stock Units which are not otherwise fully vested shall automatically accelerate so that all such Restricted Stock Units shall, immediately when the Recipient is Terminated Without Cause or Resigns for Good Reason, become fully vested, free of all restrictions. In the event of a Corporate Transaction in which the Restricted Stock Units are not to be Appropriately Replaced at or prior to the effective time of such Corporate Transaction, the vesting of all Restricted Stock Units which are not otherwise fully vested shall automatically accelerate so that all such Restricted Stock Units shall, immediately prior to the effective time of the Corporate Transaction, become fully vested, free of all restrictions. In the event that, within twenty-four months after a Corporate Transaction at or prior to which the Restricted Stock Units have been Appropriately Replaced, Recipient is Terminated Without Cause by the Company or any successor Person, or Resigns For Good Reason, and the Recipient is not a Participant in such Corporate Transaction, the vesting of all Restricted Stock Units (or the substitute awards by which the Restricted Stock Units are Appropriately Replaced) which are not otherwise fully vested and exercisable on shall automatically accelerate so that all such Restricted Stock Units (or such substitute awards) shall, immediately when the date Recipient is Terminated Without Cause or Resigns For Good Reason, become fully vested, free of terminationall restrictions. For purposes of this Section 2.6(b2.3: Restricted Stock Units shall be considered “Appropriately Replaced” if, in addition to providing for acceleration as provided in clause (d) of this Section 2.3, at or prior to the Corporate Transaction, in the judgment of the Committee as constituted at the time the Corporate Transaction is proposed or announced to the Company (the “Evaluating Committee”), the definition Restricted Stock Units or a substituted award will confer the right to receive, for each share of CauseCommon Stock that may be received pursuant to the Restricted Stock Units existing immediately prior to the Corporate Transaction, on substantially the same vesting and other terms and conditions (including acceleration if the Recipient is Terminated Without Cause or Resigns For Good Reason and Disability in Section 6 of this Agreement supersedes any such definitions Reason) as were applicable to the Restricted Stock Units immediately prior to the Corporate Transaction, the consideration (whether stock, cash or other securities or property) to be received in the Plan.
(ii) On Corporate Transaction by holders of Common Stock for each such share held on the effective date of such transaction (and if holders were offered a Change choice of Control (as defined in subsection (iv) below)consideration, fifty percent (50%) the type of consideration chosen by the holders of a majority of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion shares of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of ControlCommon Stock), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.
(iii) If this Agreement is terminated by the Company without Cause or by the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Change of Control, all of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable on the later of the date of termination or the Change of Control; provided, however, that if any unvested portion of a Stock Award terminates or is forfeited such consideration to be received in the case transaction constituting a Corporate Transaction is not solely cash and/or common stock of the termination of this Agreement before a Change of Controlsuccessor company or its parent or subsidiary, the Company will make a cash payment Evaluating Committee may, if the obligations are to be assumed by the Executivesuccessor company, no later than ten (10) days after or its parent or subsidiary, approve that the effective date consideration to be received upon the exercise or vesting of the Change of Control, equal to Restricted Stock Units (or the economic value substituted award) will be common stock of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate successor company or its parent or subsidiary substantially equal in fair market value to the per-share consideration received by holders of Common Stock in the shares underlying that portion transaction constituting a Corporate Transaction. The determination of the option at the time such substantial equality of the Change of Control, and for stock awards as the aggregate fair market value of consideration shall be made by the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), Evaluating Committee in its sole discretion and the regulations its determination shall be conclusive and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5)binding.
Appears in 1 contract
Samples: Restricted Stock Unit Agreement (Reading International Inc)
Acceleration of Vesting. The provisions concerning vesting pursuant to clauses (i), (ii) and (iii) below will be cumulative, and are hereby deemed to be a part In the event that of all stock options, restricted stock and such other awards granted during the term of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof, (each a “Stock Award”), and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.
(i) If the Executive’s employment is terminated by the Company without Cause, by the Executive for Good Reason, or as a result of the ExecutiveRecipient’s death or Disability (all as defined in Section 6 belowthe Plan), the Executive’s outstanding all unvested Restricted Stock Awards that would have vested over the twelve (12) month period following Units shall immediately vest as of the date of termination had death or Disability. In the Executive remained continuously employed by event of a Change of Control, and the Company during Recipient is not a Participant in such periodChange in Control, will be automatically vested and exercisable on all unvested Restricted Stock Units shall immediately vest as of the date of terminationsuch Change of Control. In the event of a Corporate Transaction in which the Restricted Stock Units are not to be Appropriately Replaced at or prior to the effective time of such Corporate Transaction, the vesting of all Restricted Stock Units which are not otherwise fully vested shall automatically accelerate so that all such Restricted Stock Units shall, immediately prior to the effective time of the Corporate Transaction, become fully vested, free of all restrictions. For purposes of this Section 2.6(b2.3: Restricted Stock Units shall be considered “Appropriately Replaced” if, at or prior to the Corporate Transaction, in the judgment of the Committee as constituted at the time the Corporate Transaction is proposed or announced to the Company (the “Evaluating Committee”), the definition Restricted Stock Units or a substituted award will confer the right to receive, for each share of CauseCommon Stock that may be received pursuant to the Restricted Stock Units existing immediately prior to the Corporate Transaction, Good Reason on substantially the same vesting and Disability in Section 6 of this Agreement supersedes any such definitions other terms and conditions as were applicable to the Restricted Stock Units immediately prior to the Corporate Transaction, the consideration (whether stock, cash or other securities or property) to be received in the Plan.
(ii) On Corporate Transaction by holders of Common Stock for each such share held on the effective date of such transaction (and if holders were offered a Change choice of Control (as defined in subsection (iv) below)consideration, fifty percent (50%) the type of consideration chosen by the holders of a majority of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion shares of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of ControlCommon Stock), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.
(iii) If this Agreement is terminated by the Company without Cause or by the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Change of Control, all of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable on the later of the date of termination or the Change of Control; provided, however, that if any unvested portion of a Stock Award terminates or is forfeited such consideration to be received in the case transaction constituting a Corporate Transaction is not solely cash and/or common stock of the termination of this Agreement before a Change of Controlsuccessor company or its parent or subsidiary, the Company will make a cash payment Evaluating Committee may, if the obligations are to be assumed by the Executivesuccessor company, no later than ten (10) days after or its parent or subsidiary, approve that the effective date consideration to be received upon the exercise or vesting of the Change of Control, equal to Restricted Stock Units (or the economic value substituted award) will be common stock of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate successor company or its parent or subsidiary substantially equal in fair market value to the per-share consideration received by holders of Common Stock in the shares underlying that portion transaction constituting a Corporate Transaction. The determination of the option at the time such substantial equality of the Change of Control, and for stock awards as the aggregate fair market value of consideration shall be made by the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), Evaluating Committee in its sole discretion and the regulations its determination shall be conclusive and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5)binding.
Appears in 1 contract
Samples: Restricted Stock Unit Agreement (Reading International Inc)
Acceleration of Vesting. The provisions concerning vesting pursuant to clauses (i), (iia) and (iii) below will be cumulative, and are hereby deemed to be a part of all stock options, restricted stock and such other awards granted during In the term of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof, (each a “Stock Award”), and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.
(i) If the Executive’s event your employment with Deluxe is terminated by the Company without Causereason of death, by the Executive for Good Reason, or as a result of the Executive’s death or Disability (all as defined in Section 6 below), the Executive’s outstanding unvested Stock Awards that would have vested over the twelve (12) month period following the date of termination had the Executive remained continuously employed by the Company during such period, will be automatically vested and exercisable on the date of termination. For purposes of this Section 2.6(b), the definition of Cause, Good Reason and Disability in Section 6 of this Agreement supersedes any such definitions in the Plan.
(ii) On the effective date of a Change of Control (as defined in subsection the Addendum) or Qualified Retirement (ivas defined in the Addendum) below), fifty percent (50%) of any time during the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of Control), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.
(iii) If this Agreement is terminated by the Company without Cause or by the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Change of ControlRestricted Period, all of the Executive’s outstanding yet unvested Stock Awards Units will be automatically vested and exercisable vest (i.e., the restrictions on the later Units shall lapse) and the Units shall become non-forfeitable as of the date of such termination.
(b) Subject to subparagraph 4(c), in the event your employment is terminated during the Restricted Period by reason of involuntary termination or the Change of Control; providedwithout Cause, that if any unvested a pro-rata portion of a Stock the Units (based on the number of completed days elapsed since the Award terminates or is forfeited in the case Date) then subject to restrictions shall vest and become non-forfeitable as of the termination date of such termination.
(c) Notwithstanding any provision contained in this Agreement before that would result in Units vesting in full or in part at a later date, if, in connection with any Change of Control, the Company will make acquiring Person, surviving or acquiring corporation or entity, or an Affiliate of such corporation or entity, elects to assume the obligations of Deluxe under this Agreement and to replace the Units issuable under it with other equity securities that are listed on a cash payment national securities exchange (including by use of American Depository Receipts or any similar method) and are freely transferable under all applicable federal and provincial securities laws and regulations, the Units then subject to restriction shall continue to vest as set forth in Section 2, provided, however, the ExecutiveUnits shall vest in full if, no later than ten (10) days after within twelve months of the effective date of the Change of Control:
(i) Your employment with Deluxe is terminated by Deluxe without Cause, equal or
(ii) Vesting would otherwise occur on any earlier date as provided under this Agreement. In the event of any such Change of Control, the number of replacement equity securities issuable under this Agreement shall be determined by the Committee in accordance with Section 4(c) of the Plan. In the event of any such Change of Control, all references herein to the economic value of the terminated unvested portion of the Stock Award Units shall thereafter be deemed to refer to the Executive at replacement equity securities, references to Deluxe shall thereafter be deemed to refer to the time issuer of such replacement equity securities, and all other terms of this Agreement shall continue in effect except as and to the extent modified by this subparagraph.
(d) If the Change of Control (calculated for stock options as does not meet the difference between the aggregate exercise price of that portion of the option and the aggregate fair market value of the shares underlying that portion of the option at the time of continuation or replacement criteria specified in subparagraph 4(c) above, all Units then subject to restriction shall vest in full immediately upon the Change of Control, and for stock awards as the aggregate fair market value of the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5).
Appears in 1 contract
Samples: Restricted Stock Unit Award Agreement (Deluxe Corp)
Acceleration of Vesting. The provisions concerning vesting pursuant (a) Except as set forth in this Section 3(a) and in Section 3(b) of this Instrument, any Outstanding Awarded Cash Amount shall become fully vested and no longer subject to clauses any forfeiture restrictions under this Instrument if Employee’s employment with the Company or an affiliate thereof terminates by reason of his or her Qualifying Termination; provided, however, that in the event such Qualifying Termination constitutes a Non-Cause Termination that occurs prior to the Trigger Event, the Outstanding Awarded Cash Amount due to such Employee shall be equal to the Awarded Cash Amount granted hereunder multiplied by a fraction, (i), ) the numerator of which is the number of calendar months that have elapsed from the date of the effectiveness of this Instrument to the date of Employee’s termination due to such Non-Cause Termination (counting a month as having elapsed if the Employee was employed by the Company or an affiliate thereof on the last business day of the month) and (ii) and (iii) below will the denominator of which is 34; provided further, that the amount actually paid to the Employee in respect of such Non-Cause Termination shall be cumulative, and are hereby deemed to be a part of all stock options, restricted stock and such other awards granted during reduced by the term amount of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option and equity incentive award plans or agreements and any shares Awarded Cash Amount that has previously vested in respect of stock issued upon exercise thereofsuch Employee, (each a “Stock Award”), and to supersede any less favorable provision in any agreement or plan regarding such Stock Awardif any.
(ib) If This Section 3(b) shall apply in the Executive’s employment is terminated by the Company without Cause, by the Executive for Good Reasonevent Employee is, or hereafter becomes, subject to an Employment Agreement. In the event Employee is, or hereafter becomes, subject to an Employment Agreement, then, except as provided in the following sentence, the provisions of Section 2 and this Section 3 regarding Qualifying Termination shall cease to apply as of the commencement of the Trigger Event, such that, no accelerated vesting of any Outstanding Awarded Cash Amount shall occur as a result of any Qualifying Termination that occurs on or after the Executive’s death commencement of the Trigger Event. Furthermore, no provision of any plan, Employment Agreement or Disability (all as defined in Section 6 below), the Executive’s outstanding unvested Stock Awards that would have vested over the twelve (12) month period following the date of termination had the Executive remained continuously employed by other agreement or arrangement pertaining to Employee and the Company during such period, will be automatically vested and exercisable on the date of termination. For purposes of this Section 2.6(b), the definition of Cause, Good Reason and Disability in Section 6 of this Agreement supersedes or an affiliate thereof (“Relevant Agreement”) shall cause any such definitions in the Plan.
(ii) On the effective date of a Change of Control (as defined in subsection (iv) below), fifty percent (50%) of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of Control), will continue Outstanding Awarded Cash Amount to vest on an accelerated basis in connection with a Qualifying Termination that occurs on or after the same schedulecommencement of such Trigger Event, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not convertedunless, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.
(iii) If this Agreement is terminated by the Company without Cause or by the Executive for Good Reason within six (6) months prior to or twenty-four such Trigger Event, this Section 3(b) is amended (24) months following in writing), a Change of Control, all of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable on the later Relevant Agreement that is in effect as of the date hereof is amended (in writing), or a Relevant Agreement is first prepared (in writing) after the date hereof to specifically provide for such vesting. For the avoidance of termination doubt, nothing in this Section 3(b) shall prevent any Outstanding Awarded Cash Amount from vesting, if the Employee otherwise meets the requirements for such vesting hereunder by continued employment with the Company or any affiliate thereof after the Change of Control; provided, that if any unvested portion occurrence of a Stock Award terminates or is forfeited in the case of the termination of this Agreement before a Change of Control, the Company will make a cash payment to the Executive, no later than ten (10) days after the effective date of the Change of Control, equal to the economic value of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate fair market value of the shares underlying that portion of the option at the time of the Change of Control, and for stock awards as the aggregate fair market value of the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5)Trigger Event.
Appears in 1 contract
Acceleration of Vesting. (a) The provisions concerning vesting pursuant restrictions with respect to clauses (i), (ii) and (iii) below will be cumulative, and are hereby deemed to be a part of all stock options, restricted stock and such other awards granted during the term of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof, (each a “Stock Award”), and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.
(i) If the Executive’s employment is terminated by the Company without Cause, by the Executive for Good Reason, or as a result of the Executive’s death or Disability (all as defined in Section 6 below), the Executive’s outstanding unvested Stock Awards that would have vested over the twelve (12) month period following the date of termination had the Executive remained continuously employed by the Company during such period, will be automatically vested and exercisable on the date of termination. For purposes of this Section 2.6(b), the definition of Cause, Good Reason and Disability in Section 6 of this Agreement supersedes any such definitions in the Plan.
(ii) On the effective date of a Change of Control (as defined in subsection (iv) below), fifty percent (50%) of the Executive’s outstanding unvested Stock Awards Shares will be automatically vested lapse (i.e., the Shares will “vest”), and exercisable. The portion of any outstanding Stock Award that remains unvested after the application such Shares shall thereupon become non-forfeitable and transferable, as of the accelerated vesting under this Section and first anniversary of the applicable equity planAward Date, and which has been continued, assumed, substituted for or replaced provided (and which therefore is still in effect after i) you are an employee of the Change of Control), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions Company on such Stock Awards will lapseanniversary date and (ii) the Company has achieved the Performance Threshold set forth in the Addendum to this Agreement, as determined by the Compensation Committee of Deluxe’s Board of Directors.
(iiib) If this Agreement In the event your employment with the Company is terminated by the Company without Cause reason of death, Disability or by the Executive for Good Reason within six (6) months Qualified Retirement prior to or twenty-four (24) months following a Change the third anniversary of Controlthe Award Date, all of the Executive’s outstanding unvested Stock Awards Shares will be automatically vested vest and exercisable on the later Shares shall become non-forfeitable and transferable as of the date of such termination.
(c) Subject to subparagraph 4(d), in the event your employment is terminated during the Restricted Period by reason of involuntary termination without Cause, a pro-rata portion of the Shares (based on the number of completed months elapsed since the Award Date) then subject to restrictions shall vest and become non-forfeitable and transferable as of the date of such termination.
(d) Notwithstanding any provision contained in this Agreement that would result in Shares vesting in full or the in part at a later date, if, in connection with any “Change of Control; provided, that if any unvested portion of a Stock Award terminates or is forfeited ” (as defined in the case Addendum), the acquiring Person, surviving or acquiring corporation or entity, or an affiliate of such corporation or entity, elects to continue this Agreement in effect and to replace the Shares with other equity securities that are registered under the Securities Act of 1933 and are freely transferable under all applicable federal and state securities laws and regulations, the Shares then subject to restriction shall vest in full if, within twelve months of the termination of this Agreement before a Change of Control, the Company will make a cash payment to the Executive, no later than ten (10) days after the effective date of the Change of Control,
(i) Your employment with the Company (or any successor company or affiliated entity with which you are then employed) is terminated by the Company or such other employer without Cause,
(ii) Your employment with the Company (or any successor company or affiliated entity with which you are then employed) is terminated by you for “Good Reason” (as defined in the Addendum), equal to or
(iii) Any earlier date provided under this Agreement. In the economic value event of any such Change of Control, the terminated unvested portion number of replacement equity securities shall be determined by multiplying the Stock Award to the Executive at the time of exchange ratio used in connection with the Change of Control for determining the number of replacement equity securities issuable for the outstanding shares of Deluxe’s common stock, or if there is no such ratio, an exchange ratio established or accepted by the Continuing Directors (calculated for stock options as defined in the difference between Addendum) so as to preserve the aggregate exercise price of that portion of the option and the aggregate fair market same economic value of the shares underlying that portion of the option at the time of in this Award as existed prior to the Change of Control. In the event of any such Change of Control, all references herein to the Shares shall thereafter be deemed to refer to the replacement equity securities, references to Deluxe shall thereafter be deemed to refer to the issuer of such replacement equity securities, and for stock awards all other terms of this Agreement shall continue in effect except as and to the aggregate fair market value extent modified by this subparagraph.
(e) If the Change of Control does not meet the unvested portion of the shares at the time of continuation or replacement criteria specified in subparagraph 4(d) above, all Shares then subject to restriction shall vest in full immediately upon the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5).
Appears in 1 contract
Acceleration of Vesting. The provisions concerning vesting pursuant to clauses (i), (iia) and (iii) below will be cumulative, and are hereby deemed to be a part In the event that of all stock options, restricted stock and such other awards granted during the term of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof, (each a “Stock Award”), and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.
(i) If the Executive’s employment is terminated by the Company without Cause, by the Executive for Good Reason, or as a result of the ExecutiveRecipient’s death or Disability (all as defined in Section 6 belowthe Plan), the Executive’s outstanding all unvested Restricted Stock Awards that would have vested over the twelve (12) month period following Units shall immediately vest as of the date of termination had death or Disability.
(b) In the Executive remained continuously employed by event of a Change of Control, and the Company during Recipient is not a Participant in such periodChange in Control, will be automatically vested and exercisable on all unvested Restricted Stock Units shall immediately vest as of the date of termination. such Change of Control.
(c) In the event of a Corporate Transaction in which the Restricted Stock Units are not to be Appropriately Replaced at or prior to the effective time of such Corporate Transaction, the vesting of all Restricted Stock Units which are not otherwise fully vested shall automatically accelerate so that all such Restricted Stock Units shall, immediately prior to the effective time of the Corporate Transaction, become fully vested, free of all restrictions.
(d) For purposes of this Section 2.6(b2.4:
(i) Restricted Stock Units shall be considered “Appropriately Replaced” if, at or prior to the Corporate Transaction, in the judgment of the Committee as constituted at the time the Corporate Transaction is proposed or announced to the Company (the “Evaluating Committee”), the definition Restricted Stock Units or a substituted award will confer the right to receive, for each share of CauseCommon Stock that may be received pursuant to the Restricted Stock Units existing immediately prior to the Corporate Transaction, Good Reason on substantially the same vesting and Disability in Section 6 of this Agreement supersedes any such definitions other terms and conditions as were applicable to the Restricted Stock Units immediately prior to the Corporate Transaction, the consideration (whether stock, cash or other securities or property) to be received in the Plan.
(ii) On Corporate Transaction by holders of Common Stock for each such share held on the effective date of such transaction (and if holders were offered a Change choice of Control (as defined in subsection (iv) below)consideration, fifty percent (50%) the type of consideration chosen by the holders of a majority of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion shares of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of ControlCommon Stock), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.
(iii) If this Agreement is terminated by the Company without Cause or by the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Change of Control, all of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable on the later of the date of termination or the Change of Control; provided, however, that if any unvested portion of a Stock Award terminates or is forfeited such consideration to be received in the case transaction constituting a Corporate Transaction is not solely cash and/or common stock of the termination of this Agreement before a Change of Controlsuccessor company or its parent or subsidiary, the Company will make a cash payment Evaluating Committee may, if the obligations are to be assumed by the Executivesuccessor company, no later than ten (10) days after or its parent or subsidiary, approve that the effective date consideration to be received upon the exercise or vesting of the Change of Control, equal to Restricted Stock Units (or the economic value substituted award) will be common stock of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate successor company or its parent or subsidiary substantially equal in fair market value to the per-share consideration received by holders of Common Stock in the shares underlying that portion transaction constituting a Corporate Transaction. The determination of the option at the time such substantial equality of the Change of Control, and for stock awards as the aggregate fair market value of consideration shall be made by the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), Evaluating Committee in its sole discretion and the regulations its determination shall be conclusive and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5)binding.
Appears in 1 contract
Samples: Restricted Stock Unit Agreement (Reading International Inc)
Acceleration of Vesting. The provisions concerning vesting pursuant to clauses (i), (iia) and (iii) below will be cumulative, and are hereby deemed to be a part In the event that of all stock options, restricted stock and such other awards granted during the term of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof, (each a “Stock Award”), and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.
(i) If the Executive’s employment is terminated by the Company without Cause, by the Executive for Good Reason, or as a result of the ExecutiveOptionee’s death or Disability (all as defined in Section 6 belowthe Plan), the Executive’s outstanding unvested Stock Awards that would have vested over the twelve (12) month period following all Unvested Options shall immediately vest as of the date of termination had death or Disability.
(b) In the Executive remained continuously employed event that, within twenty-four months after a Change in Control, Optionee is Terminated Without Cause by the Company during or any successor Person, or Resigns For Good Reason, and the Optionee is not a Participant in such periodChange in Control, will the vesting of all Unvested Options which are not otherwise fully vested shall automatically accelerate so that all such Unvested Options shall, immediately when the Optionee is Terminated Without Cause or Resigns for Good Reason, become fully vested, free of all restrictions.
(c) In the event of a Corporate Transaction in which the Unvested Options are not to be Appropriately Replaced at or prior to the effective time of such 2 Corporate Transaction, the vesting of all Unvested Options which are not otherwise fully vested shall automatically accelerate so that all such Unvested Options shall, immediately prior to the effective time of the Corporate Transaction, become fully vested, free of all restrictions.
(d) In the event that, within twenty-four months after a Corporate Transaction at or prior to which the Unvested Options have been Appropriately Replaced, Optionee is Terminated Without Cause by the Company or any successor Person, or Resigns For Good Reason, and the Optionee is not a Participant in such Corporate Transaction, the vesting of all Unvested Options (or the substitute awards by which the Unvested Options are Appropriately Replaced) which are not otherwise fully vested and exercisable on shall automatically accelerate so that all such Unvested Options (or such substitute awards) shall, immediately when the date Optionee is Terminated Without Cause or Resigns For Good Reason, become fully vested, free of termination. all restrictions.
(e) For purposes of this Section 2.6(bII.C.:
(i) Unvested Options shall be considered “Appropriately Replaced” if, in addition to providing for acceleration as provided in clause (d) of this Section II.C., at or prior to the Corporate Transaction, in the judgment of the Committee as constituted at the time the Corporate Transaction is proposed or announced to the Company (the “Evaluating Committee”), the definition Unvested Options or a substituted award will confer the right to receive, for each share of CauseCommon Stock that may be received pursuant to the Unvested Options existing immediately prior to the Corporate Transaction, on substantially the same vesting and other terms and conditions (including acceleration if the Optionee is Terminated Without Cause or Resigns For Good Reason and Disability in Section 6 of this Agreement supersedes any such definitions Reason) as were applicable to the Unvested Options immediately prior to the Corporate Transaction, the consideration (whether stock, cash or other securities or property) to be received in the Plan.
(ii) On Corporate Transaction by holders of Common Stock for each such share held on the effective date of such transaction (and if holders were offered a Change choice of Control (as defined in subsection (iv) below)consideration, fifty percent (50%) the type of consideration chosen by the holders of a majority of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion shares of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of ControlCommon Stock), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.
(iii) If this Agreement is terminated by the Company without Cause or by the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Change of Control, all of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable on the later of the date of termination or the Change of Control; provided, however, that if any unvested portion of a Stock Award terminates or is forfeited such consideration to be received in the case transaction constituting a Corporate Transaction is not solely cash and/or common stock of the termination of this Agreement before a Change of Controlsuccessor company or its parent or subsidiary, the Company will make a cash payment Evaluating Committee may, if the obligations are to be assumed by the Executivesuccessor company, no later than ten (10) days after or its parent or subsidiary, approve that the effective date consideration to be received upon the exercise or vesting of the Change of Control, equal to Unvested Options (or the economic value substituted award) will be common stock of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate successor company or its parent or subsidiary substantially equal in fair market value to the per-share consideration received by holders of Common Stock in the shares underlying that portion transaction constituting a Corporate Transaction. The determination of the option at the time such substantial equality of the Change of Control, and for stock awards as the aggregate fair market value of consideration shall be made by the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), Evaluating Committee in its sole discretion and the regulations its determination shall be conclusive and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5)binding.
Appears in 1 contract
Acceleration of Vesting. The provisions concerning vesting pursuant to clauses (i)Notwithstanding Section 4 above, (iiA) and in the event of your Involuntary Termination (iiiother than Involuntary Termination upon a Change of Control) below will be cumulative, and are hereby deemed to be a part of all stock options, restricted stock and such other awards granted during the term first twelve (12) months following your Start Date, the vesting applicable to the Option, or right to repurchase in the event of the Original Employment Agreement a Restricted Stock Grant, as well as any other equity awards that have been granted to you but have not yet vested, shall accelerate (or this Agreement pursuant to the Company’s stock option and equity incentive award plans or agreements repurchase right with respect to such shares underlying the Option and any other equity award shall lapse) as to that number of shares of stock issued upon exercise thereof, (each a “Stock Award”), and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.
(i) If the Executive’s employment is terminated by the Company without Cause, by the Executive for Good Reason, or as a result of the Executive’s death or Disability (all as defined in Section 6 below), the Executive’s outstanding unvested Stock Awards that would have vested over the twelve (12) -month period following the date of termination had such Involuntary Termination, such acceleration effective immediately prior to such termination; (B) in the Executive remained continuously employed by event of your Involuntary Termination (other than Involuntary Termination upon a Change of Control) more than twelve (12) months following your Start Date (i.e. on or after October 1, 2009), the Company during vesting applicable to the Option, as well as any other equity awards that have been granted to you but have not yet vested, shall accelerate (or the Company’s repurchase right with respect to such period, will be automatically vested shares underlying the Option and exercisable on any other equity award shall lapse) as to one half of the unvested shares as of the date of such Involuntary Termination, such acceleration effective immediately prior to such termination. For purposes of this Section 2.6(b), the definition of Cause, Good Reason ; and Disability in Section 6 of this Agreement supersedes any such definitions (C) in the Plan.
event your Involuntary Termination occurs within twelve (ii12) On months after the effective date of a Change of Control transaction, then the vesting applicable to the Option, as well as any other equity awards that have been granted but have not yet vested, shall accelerate (as defined in subsection (iv) below), fifty percent (50%) of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of Control), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.
(iii) If this Agreement is terminated by the Company without Cause or by the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Change of Control, all of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable on the later of the date of termination or the Change of Control; provided, Company’s repurchase right with respect to such shares underlying the Option and any other equity award shall lapse) as to all remaining shares that if any are unvested portion of a Stock Award terminates or is forfeited in the case of the termination of this Agreement before a Change of Control, the Company will make a cash payment to the Executive, no later than ten (10) days after the effective date of the Change of Control, equal to the economic value of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate fair market value of the shares underlying that portion of the option at the time of the Change of Controlyour employment terminates, and for stock awards as the aggregate fair market value of the unvested portion of the shares at the time of the Change of Control, less any amounts paid such acceleration effective immediately prior to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5)such termination.
Appears in 1 contract
Acceleration of Vesting. The provisions concerning vesting pursuant to clauses (i), (iia) and (iii) below will be cumulative, and are hereby deemed to be a part In the event that of all stock options, restricted stock and such other awards granted during the term of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof, (each a “Stock Award”), and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.
(i) If the Executive’s employment is terminated by the Company without Cause, by the Executive for Good Reason, or as a result of the ExecutiveRecipient’s death or Disability (all as defined in Section 6 belowthe Plan), the Executive’s outstanding all unvested Restricted Stock Awards that would have vested over the twelve (12) month period following Units shall immediately vest as of the date of termination had death or Disability.
(b) In the Executive remained continuously employed event that, within twenty-four months after a Change in Control, Recipient is Terminated Without Cause by the Company during or any successor Person, or Resigns For Good Reason, and the Recipient is not a Participant in such periodChange in Control, will the vesting of all Restricted Stock Units which are not otherwise fully vested shall automatically accelerate so that all such Restricted Stock Units shall, immediately when the Recipient is Terminated Without Cause or Resigns for Good Reason, become fully vested, free of all restrictions.
(c) In the event of a Corporate Transaction in which the Restricted Stock Units are not to be Appropriately Replaced at or prior to the effective time of such Corporate Transaction, the vesting of all Restricted Stock Units which are not otherwise fully vested shall automatically accelerate so that all such Restricted Stock Units shall, immediately prior to the effective time of the Corporate Transaction, become fully vested, free of all restrictions.
(d) In the event that, within twenty-four months after a Corporate Transaction at or prior to which the Restricted Stock Units have been Appropriately Replaced, Recipient is Terminated Without Cause by the Company or any successor Person, or Resigns For Good Reason, and the Recipient is not a Participant in such Corporate Transaction, the vesting of all Restricted Stock Units (or the substitute awards by which the Restricted Stock Units are Appropriately Replaced) which are not otherwise fully vested and exercisable on shall automatically accelerate so that all such Restricted Stock Units (or such substitute awards) shall, immediately when the date Recipient is Terminated Without Cause or Resigns For Good Reason, become fully vested, free of termination. all restrictions.
(e) For purposes of this Section 2.6(b2.3:
(i) Restricted Stock Units shall be considered “Appropriately Replaced” if, in addition to providing for acceleration as provided in clause (d) of this Section 2.3, at or prior to the Corporate Transaction, in the judgment of the Committee as constituted at the time the Corporate Transaction is proposed or announced to the Company (the “Evaluating Committee”), the definition Restricted Stock Units or a substituted award will confer the right to receive, for each share of CauseCommon Stock that may be received pursuant to the Restricted Stock Units existing immediately prior to the Corporate Transaction, on substantially the same vesting and other terms and conditions (including acceleration if the Recipient is Terminated Without Cause or Resigns For Good Reason and Disability in Section 6 of this Agreement supersedes any such definitions Reason) as were applicable to the Restricted Stock Units immediately prior to the Corporate Transaction, the consideration (whether stock, cash or other securities or property) to be received in the Plan.
(ii) On Corporate Transaction by holders of Common Stock for each such share held on the effective date of such transaction (and if holders were offered a Change choice of Control (as defined in subsection (iv) below)consideration, fifty percent (50%) the type of consideration chosen by the holders of a majority of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion shares of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of ControlCommon Stock), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.
(iii) If this Agreement is terminated by the Company without Cause or by the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Change of Control, all of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable on the later of the date of termination or the Change of Control; provided, however, that if any unvested portion of a Stock Award terminates or is forfeited such consideration to be received in the case transaction constituting a Corporate Transaction is not solely cash and/or common stock of the termination of this Agreement before a Change of Controlsuccessor company or its parent or subsidiary, the Company will make a cash payment Evaluating Committee may, if the obligations are to be assumed by the Executivesuccessor company, no later than ten (10) days after or its parent or subsidiary, approve that the effective date consideration to be received upon the exercise or vesting of the Change of Control, equal to Restricted Stock Units (or the economic value substituted award) will be common stock of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate successor company or its parent or subsidiary substantially equal in fair market value to the per-share consideration received by holders of Common Stock in the shares underlying that portion transaction constituting a Corporate Transaction. The determination of the option at the time such substantial equality of the Change of Control, and for stock awards as the aggregate fair market value of consideration shall be made by the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), Evaluating Committee in its sole discretion and the regulations its determination shall be conclusive and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5)binding.
Appears in 1 contract
Samples: Restricted Stock Unit Agreement (Reading International Inc)
Acceleration of Vesting. The provisions concerning vesting pursuant (a) In the event your employment with the Company is terminated by reason of death, Disability (as defined in the Addendum) or Qualified Retirement (as defined in the Addendum) any time during the Restricted Period, all of the yet unvested Shares will vest (i.e., the restrictions on the Shares shall lapse) and the Shares shall become non-forfeitable and transferable as of the date of such termination.
(b) Subject to clauses (isubparagraph 4(c), in the event your employment is terminated during the Restricted Period by reason of involuntary termination without Cause, a pro-rata portion of the Shares (iibased on the number of completed days elapsed since the Award Date) then subject to restrictions shall vest and become non-forfeitable and transferable as of the date of such termination.
(c) Notwithstanding any provision contained in this Agreement that would result in Shares vesting in full or in part at a later date, if, in connection with any Change of Control, the acquiring Person, surviving or acquiring corporation or entity, or an Affiliate of such corporation or entity, elects to assume the obligations of Deluxe under this Agreement and to replace the Shares issuable under it with other equity securities that are listed on a national securities exchange (including by use of American Depository Receipts or any similar method) and (iii) below will be cumulativeare freely transferable under all applicable federal and state securities laws and regulations, and are hereby deemed the Shares then subject to be a part of all stock optionsrestriction shall continue to vest as set forth in Section 2, restricted stock and such other awards granted during provided, however, the term Shares shall vest in full if, within twelve months of the Original Employment Agreement or this Agreement pursuant to date of the Company’s stock option and equity incentive award plans or agreements and any shares Change of stock issued upon exercise thereof, (each a “Stock Award”), and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.Control:
(i) If Your employment with the Executive’s employment Company is terminated by the Company without Cause, ,
(ii) Your employment with the Company is terminated by the Executive you for Good Reason, or as a result of the Executive’s death or Disability (all as defined in Section 6 below), the Executive’s outstanding unvested Stock Awards that would have vested over the twelve (12) month period following the date of termination had the Executive remained continuously employed by the Company during such period, will be automatically vested and exercisable on the date of termination. For purposes of this Section 2.6(b), the definition of Cause, Good Reason and Disability in Section 6 of this Agreement supersedes any such definitions in the Plan.
(ii) On the effective date of a Change of Control (as defined in subsection (iv) below), fifty percent (50%) of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of Control), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.or
(iii) If Vesting would otherwise occur on any earlier date as provided under this Agreement. In the event of any such Change of Control, the number of replacement equity securities issuable under this Agreement is terminated shall be determined by the Company without Cause or by Committee in accordance with Section 4(c) of the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Plan. In the event of any such Change of Control, all references herein to the Shares shall thereafter be deemed to refer to the replacement equity securities, references to Deluxe shall thereafter be deemed to refer to the issuer of such replacement equity securities, and all other terms of this Agreement shall continue in effect except as and to the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable on extent modified by this subparagraph. RS Ver. 12/17 US.115290760.02
(d) If the later Change of Control does not meet the date of termination continuation or replacement criteria specified in subparagraph 4(c) above, all Shares then subject to restriction shall vest in full immediately upon the Change of Control; provided, that if any unvested portion of a Stock Award terminates or is forfeited in the case of the termination of this Agreement before a Change of Control, the Company will make a cash payment to the Executive, no later than ten (10) days after the effective date of the Change of Control, equal to the economic value of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate fair market value of the shares underlying that portion of the option at the time of the Change of Control, and for stock awards as the aggregate fair market value of the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5).
Appears in 1 contract
Acceleration of Vesting. The provisions concerning (a) In the event your employment with Deluxe is terminated by reason of death, Disability, involuntary termination without Cause or Approved Retirement any time during the Restricted Period, all of the yet unvested Units will vest and the Units shall become non-forfeitable as of the date of such termination.
(b) Notwithstanding any provision contained in this Agreement that would result in Units vesting pursuant in full or in part at a later date, if, in connection with any Change of Control, the acquiring Person, surviving or acquiring corporation or entity, or an Affiliate of such corporation or entity, elects to clauses assume the obligations of Deluxe under this Agreement and to replace the Shares issuable upon settlement of the Units with other equity securities that are listed on a national securities exchange (i), (iiincluding by use of American Depository Receipts or any similar method) and are freely transferable under all applicable federal and state securities laws and regulations (iii) below will be cumulative, and are hereby deemed to be a part of all stock options, restricted stock and such other awards granted during the term of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof, (each a “Stock AwardReplacement Equity Securities”), the Units then subject to restriction shall continue to vest as set forth in Section 2, provided, however, the Units shall vest in full and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.become non-forfeitable if, within twelve months of the date of the Change of Control:
(i) If Your employment with the Executive’s employment Company is terminated by the Company without Cause, ,
(ii) Your employment with the Company is terminated by the Executive you for Good Reason, or as a result of the Executive’s death or Disability (all as defined in Section 6 below), the Executive’s outstanding unvested Stock Awards that would have vested over the twelve (12) month period following the date of termination had the Executive remained continuously employed by the Company during such period, will be automatically vested and exercisable on the date of termination. For purposes of this Section 2.6(b), the definition of Cause, Good Reason and Disability in Section 6 of this Agreement supersedes any such definitions in the Plan.
(ii) On the effective date of a Change of Control (as defined in subsection (iv) below), fifty percent (50%) of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of Control), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.or
(iii) If Vesting would otherwise occur on any earlier date as provided under this Agreement. In the event of any such Change of Control, the number of Replacement Equity Securities issuable under this Agreement is terminated shall be determined by the Company without Cause or by Committee in accordance with Section 4(c) of the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Plan. In the event of any such Change of Control, all references herein to the Shares shall thereafter be deemed to refer to the Replacement Equity Securities, references to Deluxe or the Company shall thereafter be deemed to refer to the issuer of such Replacement Equity Securities, and all other terms of this Agreement shall continue in effect except as and to the Executive’s outstanding unvested Stock Awards will be automatically vested extent modified by this subparagraph.
(c) If the Change of Control does not meet the continuation or replacement criteria specified in Section 4(b) above, all Units then subject to restriction shall vest in full immediately and exercisable on the later of the date of termination or become non-forfeitable upon the Change of Control; provided, that if any unvested portion of a Stock Award terminates or is forfeited in the case of the termination .
(d) The provisions of this Agreement before a Change of Control, the Company will make a cash payment Section 4 shall be subject to the Executive, no later than ten (10Sections 5(b) days after the effective date of the Change of Control, equal to the economic value of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate fair market value of the shares underlying that portion of the option at the time of the Change of Control, and for stock awards as the aggregate fair market value of the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5)8.
Appears in 1 contract
Samples: Restricted Stock Unit Award Agreement (Deluxe Corp)
Acceleration of Vesting. The provisions concerning vesting pursuant to clauses (i)Except as provided below, (ii) your rights in and (iii) below will be cumulative, and are hereby deemed to be a part of all stock options, restricted stock and such other awards granted during the term of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option Units shall terminate on the termination date of your employment by any company in a group of companies consisting of Deluxe and equity incentive award plans or agreements and its Affiliates, which is not followed by your immediate re-employment by any shares other member of stock issued upon exercise thereofsaid group, (each a “Stock Award”), and for any reason if that termination occurs prior to supersede any less favorable provision in any agreement or plan regarding such Stock Award.
(i) the Expiration Date. If the Executive’s your employment is terminated prior to the Expiration Date by the Company without Cause, by the Executive action of Deluxe or any Affiliate other than for Good Reason, or Cause (as a result of the Executive’s death or Disability (all as defined in Section 6 belowhereinafter defined), you will receive a cash payment from Deluxe equal to the Executive’s outstanding unvested Stock Awards portion of your cash incentive award that would have vested over you elected to apply to the twelve acquisition of Units (12“Base Amount”) month period (less any applicable tax withholding), made as expeditiously as practicable, but not more than 75 days, following the date of termination had the Executive remained continuously employed by the Company during such period, will be automatically vested and exercisable on the date of termination. For purposes If you voluntarily resign or are terminated for Cause prior to the Expiration Date, you will receive a cash payment from Deluxe equal to the lesser of this Section 2.6(b), (a) the definition Base Amount or (b) an amount equal to the number of Cause, Good Reason and Disability in Section 6 Units attributable to the Base Amount as of this Agreement supersedes any such definitions in the Plan.
(ii) On issue date multiplied by the closing price of the Common Stock on the effective date of your resignation or termination for Cause, which payment (less any applicable tax withholding) will be made as expeditiously as practicable, but not more than 75 days, following the effective date of your resignation. In order to satisfy the requirements of Section 409A of the Internal Revenue Code and the IRS regulations thereunder (“Section 409A”), the following provisions will apply. If your employment is terminated prior to the Expiration Date, but the termination does not constitute a “separation from service” as defined in Section 409A, then you will have the right to receive the payment described in the preceding paragraph, but the payment will be deferred until the earliest of the date on which you incur a separation from service as defined in Section 409A, the Expiration Date, or the date on which a change in control event occurs as defined in Section 409A (as described below). This could occur if, for example, your employment is terminated but you are retained as a consultant or independent contractor to provide services to Deluxe or an Affiliate at a rate which is at least 50% of the rate at which you were providing services as an employee. It is also possible that you may incur a separation from service as defined in Section 409A even though your employment has not been terminated, for example if you become a part-time employee and are providing services at a rate that is less than 50% of the rate at which you provided services as a full-time employee. If this were to occur, you would receive a payment as described in the preceding paragraph calculated as if your employment had been terminated by Deluxe without Cause. The provisions of this paragraph shall also apply to the issuance of shares to which you are entitled upon your Approved Retirement as provided in the next paragraph if your Approved Retirement does not constitute a separation from service. Prior to the Expiration Date, all restrictions applicable to the Units shall lapse and the Units shall vest fully and the shares of Common Stock represented thereby will be issued to you or your heirs, executors, administrators, estate or representatives, as applicable as expeditiously as practicable, but not more than 75 days, after your death, Disability or Approved Retirement (as such terms are defined in the Addendum). Prior to the Expiration Date, all restrictions applicable to the Units shall lapse and the Units shall vest fully and the shares of Common Stock represented thereby will be issued to you, subject to the limitations provided herein, if there shall occur a Change of Control (as defined in subsection (iv) below), fifty percent (50%hereinafter defined) of the Executive’s outstanding unvested Stock Awards will Deluxe. Such issuance shall be automatically vested and exercisable. The portion of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity planmade as expeditiously as practicable, and which has been continuedbut not more than 75 days, assumed, substituted for or replaced (and which therefore is still in effect after following the Change of Control), will continue subject to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting hereinfollowing. If a the Change of Control occurs and the Executive’s unvested does not constitute a “change in control event” as defined in Section 409A, then your right to receive shares of Common Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards described above will become fully vested and exercisable and all forfeiture restrictions vested, but issuance of the shares shall not occur until the earliest of the date on which you incur a separation from service as defined in Section 409A, the Expiration Date, the date of your Disability or the date on which a change in control event as defined in Section 409A occurs. If as a result of the Change of Control shares of Common Stock are converted into another form of property, such as stock of a company with which Deluxe is merged, or into the right to a cash payment, then in lieu of the shares of Common Stock Awards you will lapse.
(iii) If this Agreement is terminated by receive the Company without Cause cash or by other property that you would have received had you owned the Executive for Good Reason within six (6) months shares of Common Stock immediately prior to the Change of Control. Notwithstanding any other provision of this Agreement, if you are a “specified employee” as defined in Section 409A at the time any amount would otherwise become payable to you by reason of a separation from service as defined in Section 409A (including any shares of Common Stock that become issuable upon an Approved Retirement, or twenty-four (24) months following upon the occurrence of a Change of Control, all but the issuance of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable on the later of the date of termination or the Change of Control; provided, that if any unvested portion of which is deferred until a Stock Award terminates or is forfeited in the case of the termination of this Agreement before a Change of Control, the Company will make a cash payment to the Executive, no later than ten (10) days after the effective date of the Change of Control, equal to the economic value of the terminated unvested portion of the Stock Award to the Executive at the time of separation from service because the Change of Control did not constitute a change in control event), such payment shall not occur until the first business day that is more than six months following the date of such separation from service (calculated for stock options as or, if earlier, the difference between the aggregate exercise price date of that portion of the option and the aggregate fair market value of the shares underlying that portion of the option at the time of the Change of Control, and for stock awards as the aggregate fair market value of the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the sharesyour death). Notwithstanding In general, “specified employees” are the foregoing, to the extent that the Company determines that any 50 most highly compensated officers and policy making personnel of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), Deluxe and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5)its Affiliates.
Appears in 1 contract
Samples: Restricted Stock Unit Award Agreement (Deluxe Corp)
Acceleration of Vesting. The provisions concerning As provided in Section 2 of the First Letter Agreement, subject to Sections 5, 6 and 7 below, as of the date on which your Release (as defined below) becomes effective, the vesting pursuant of all of your currently outstanding equity awards that then remain unvested, other than the New RSUs, shall be accelerated, subject to clauses your continued employment with the Company through the Separation Date (and such awards shall remain outstanding and eligible to vest upon such Release effective date if the Release requirements are satisfied); provided that (i)) the performance stock units granted with respect to the 2017/2018 performance measurement period (the “2017/2018 PSUs”) and the performance stock units granted with respect to the 2018/2019 performance measurement period (the “2018/2019 PSUs”) shall remain subject to the applicable performance-vesting criteria for the applicable performance periods and shall be settled only after performance is determined but in no event following March 15 of the calendar year following the conclusion of the performance period, (ii) the 2018/2019 PSUs shall vest on a prorated basis based on the portion of the performance period completed prior to the Separation Date and (iii) below will be cumulative, and are hereby deemed to be a part of all stock options, restricted stock and such other awards granted during if the term of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof, (each a “Stock Award”), and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.
(i) If the Executive’s employment is terminated by the Company without Cause, by the Executive for Good ReasonSeparation Date occurs coincident with, or as a result of within the Executive’s death or Disability (all as defined in Section 6 below)12-month period immediately after, the Executive’s outstanding unvested Stock Awards first occurrence of a Change in Control that would have vested over the twelve (12) month period occurs following the date of termination this Second Letter Agreement, the treatment of your outstanding equity awards (other than the New RSUs) will be as would have been provided in Section 9(b)(iv) and (v) of your Employment Agreement if you had suffered an Involuntary Termination on the Executive remained continuously Separation Date, rather than as provided in this Section 3. For the avoidance of doubt, assuming you remain employed by with the Company during such periodthrough the Separation Date, will be automatically vested and exercisable on the date of termination. For purposes of this Section 2.6(b), the definition of Cause, Good Reason and Disability in Section 6 of this Agreement supersedes any such definitions in the Plan.
(ii) On the effective date of a Change of Control (as defined in subsection (iv) below), fifty percent (50%) two additional installments of the Executive’s outstanding unvested Stock Awards will be automatically vested New RSUs shall vest on February 1, 2019 and exercisable. The portion of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section May 1, 2019, respectively, and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of Control), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.
(iii) If this Agreement is terminated by the Company without Cause or by the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Change of Control, all of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable on the later of the date of termination or the Change of Control; provided, that if any unvested portion of a Stock Award terminates or is forfeited in the case of the termination of this Agreement before a Change of Control, the Company will make a cash payment to the Executive, no later than ten (10) days after the effective date of the Change of Control, equal to the economic value of the terminated unvested portion of the Stock Award to the Executive at the time of the Change of Control (calculated for stock options as the difference between the aggregate exercise price of that portion of the option and the aggregate fair market value of the shares underlying that portion of the option at the time of the Change of Control, and for stock awards as the aggregate fair market value remainder of the unvested portion New RSUs shall be forfeited as of the shares at Separation Date. Except as otherwise provided herein, the time outstanding equity awards shall continue to be governed by and settled and paid in accordance with the terms of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5)applicable award agreements.
Appears in 1 contract
Samples: Second Letter Agreement (Cognizant Technology Solutions Corp)
Acceleration of Vesting. The provisions concerning vesting pursuant to clauses (i), (iia) and (iii) below will be cumulative, and are hereby deemed to be a part In the event of all stock options, restricted stock and such other awards granted your death any time during the term of the Original Employment Agreement or this Agreement pursuant to the Company’s stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof, (each a “Stock Award”), and to supersede any less favorable provision in any agreement or plan regarding such Stock Award.
(i) If the Executive’s employment is terminated by the Company without Cause, by the Executive for Good Reason, or as a result of the Executive’s death or Disability (all as defined in Section 6 below), the Executive’s outstanding unvested Stock Awards that would have vested over the twelve (12) month period following the date of termination had the Executive remained continuously employed by the Company during such period, will be automatically vested and exercisable on the date of termination. For purposes of this Section 2.6(b), the definition of Cause, Good Reason and Disability in Section 6 of this Agreement supersedes any such definitions in the Plan.
(ii) On the effective date of a Change of Control (as defined in subsection (iv) below), fifty percent (50%) of the Executive’s outstanding unvested Stock Awards will be automatically vested and exercisable. The portion of any outstanding Stock Award that remains unvested after the application of the accelerated vesting under this Section and the applicable equity plan, and which has been continued, assumed, substituted for or replaced (and which therefore is still in effect after the Change of Control), will continue to vest on the same schedule, but the number of shares vesting on each installment will be reduced on a pro rata basis to take into account the accelerated vesting herein. If a Change of Control occurs and the Executive’s unvested Stock Awards are not converted, assumed, or replaced by a successor, such Stock Awards will become fully vested and exercisable and all forfeiture restrictions on such Stock Awards will lapse.
(iii) If this Agreement is terminated by the Company without Cause or by the Executive for Good Reason within six (6) months prior to or twenty-four (24) months following a Change of ControlRestricted Period, all of the Executive’s outstanding yet unvested Stock Awards Units will be automatically vested and exercisable vest (i.e., the restrictions on the later Units shall lapse), the Restricted Period will end and the Units shall become non-forfeitable as of the date of termination or the Change of Control; provided, that if your death.
(b) Notwithstanding any unvested portion of a Stock Award terminates or is forfeited provision contained in the case of the termination of this Agreement before that would result in Units vesting in full or in part at a later date, if, in connection with any Change of Control, the Company acquiring Person, surviving or acquiring corporation or entity, or an Affiliate of such corporation or entity, elects to assume the obligations of Deluxe under this Agreement and to replace the Shares issuable upon exercise of the Units with other equity securities that are listed on a national securities exchange (including by use of American Depository Receipts or any similar method) and are freely transferable under all applicable federal and state securities laws and regulations, the Units then subject to restriction shall continue to vest as set forth in Section 2, provided, however, the Units shall vest in full and the Restricted Period will make a cash payment to end if, within twelve months of the Executive, no later than ten (10) days after the effective date of the Change of Control: (i) Your employment with the Company (or any successor company or affiliated entity with which you are then employed) is terminated by the Company or such other employer without Cause, equal (ii) Your employment with the Company (or any successor company or affiliated entity with which you are then employed) is terminated by you for Good Reason, or (iii) Vesting would otherwise occur on any earlier date as provided under this Agreement. In the event of any such Change of Control, the number of replacement equity securities issuable under this Agreement shall be determined by the Committee in accordance with Section 4(c) of the Plan. In the event of any such Change of Control, all references herein to the economic value of the terminated unvested portion of the Stock Award Units shall thereafter be deemed to refer to the Executive at replacement equity securities, references to Deluxe shall thereafter be deemed to refer to the time issuer of such replacement equity securities, and all other terms of this Agreement shall continue in effect except as and to the extent modified by this subparagraph.
(c) If the Change of Control does not meet the continuation or replacement criteria specified in subparagraph 4(b) above or if your employment was terminated prior to the Change of Control (calculated i) by Deluxe without Cause or by you for stock options as Good Reason on or prior to the difference between the aggregate exercise price of that portion second anniversary of the option Award Date or (ii) due to Disability, all Units then subject to restriction shall vest in full immediately and the aggregate fair market value of the shares underlying that portion of the option at the time of Restricted Period will end upon the Change of Control, and for stock awards as the aggregate fair market value of the unvested portion of the shares at the time of the Change of Control, less any amounts paid to the Executive for the repurchase of that portion of the shares). Notwithstanding the foregoing, to the extent that the Company determines that any of the payments or benefits under this subsection 2.6(b)(iii) constitute deferred compensation under of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) that may only be paid on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under Section 409A), the foregoing definition of Change in Control will apply only to the extent the transaction also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is, as defined under Treasury Regulation Section 1.409A-3(i)(5).
Appears in 1 contract
Samples: Employment Agreement (Deluxe Corp)
