By Executive for Good Reason. The Executive, by written notice to the Company, may terminate Executive’s employment hereunder if a “Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following circumstances without the Executive’s prior written consent: (a) a substantial and material adverse change in the nature of Executive’s title, duties or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.
Appears in 2 contracts
Samples: Employment Agreement (Cpi Aerostructures Inc), Employment Agreement (Cpi Aerostructures Inc)
By Executive for Good Reason. The Executive(a) Executive may, at any time during the Employment Period by written notice to Employer, terminate the Company, may terminate Executive’s employment hereunder if a “Employment Period under this Agreement for "Good Reason” exists" (as defined below). For the purposes of this Agreementhereof, “Executive shall have "Good Reason” shall mean the occurrence " to terminate employment with Employer on account of any of the following circumstances events without the Executive’s prior written 's consent: (ai) any reduction in the Base Salary; (ii) the failure of Employer to provide employee benefits consistent with Section 4.3, herein; (iii) any requirement by Employer that Executive report to anyone other than the Board; or (iv) a substantial and material adverse change "Change in the nature of Executive’s title, duties or responsibilities with the Company that represents a demotion from his title, duties or responsibilities Control" (as in effect immediately prior to such change (such change, a “Demotion”defined below); provided, however, that the circumstances set forth in this Section 5.3 shall not be Good Reason if within 30 days of notice by Executive to Employer, Employer cures such circumstances. The effective date of such termination of Executive from Employer shall be the event date that is thirty (30) days following the date on which such notice is given.
(b) For purposes of this Section 5.3, a “"Change in Control” (as defined below), no Demotion " shall be deemed to have occurred taken place if any "Person" (as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (bsuch term is defined in Section 3(a)(9) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding Securities Exchange Act of 1934 (the foregoing, no “Good Reason” shall be deemed to exist with respect to "Exchange Act") and as used in Sections 13(d)(3) and 14(d)(2) of the Company’s acts described Exchange Act) becomes a "beneficial owner" (as defined in clauses (aRule 13d-3 under the Exchange Act), (b) directly or (c) aboveindirectly, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of securities of the initial existence Corporation representing 50% or more of the occurrence, specifying combined voting power of Employer's then outstanding securities eligible to vote for the “Good Reason” with reasonable particularity and, within thirty election of the Board (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”"Voting Securities"); provided, however, that no the event described in this paragraph (b) shall not be deemed to be a Change in Control by virtue of any of the following acquisitions: (i) by Employer or any subsidiary of Employer in which Employer owns more than two cure periods shall be provided during any twelve-month period 50% of the combined voting power of such entity (a breach of clauses (a"Subsidiary"), (bii) by any employee benefit plan (or related trust) sponsored or maintained by Employer or any Subsidiary, (iii) by any underwriter temporarily holding Employer's Voting Securities pursuant to an offering of such Voting Securities, or (cvi) above. Upon such termination, the Company shall pay pursuant to any acquisition by Executive the amount set forth in Section 4.6(cor any group or persons including Executive (or any entity controlled by Executive or any group of persons including Executive). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.
Appears in 2 contracts
Samples: Employment Agreement (Ameritrans Capital Corp), Employment Agreement (Ameritrans Capital Corp)
By Executive for Good Reason. The Executive, by written notice to the Company, may terminate Executive’s employment hereunder if a “Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following circumstances without the Executive’s prior written consent: (a) a substantial and material adverse change in the nature of Executive’s title, duties or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company; (e) a change in the principal office or work place assigned to the Executive to a location more than 35 miles distant from its location immediately prior to such change; (f) a material reduction of the Executive’s base salary or bonus opportunity, unless pursuant to a reduction in such items applicable proportionally to all senior management and board members; or (g) any reason or no reason following a Change of Control (as defined in the Restricted Common Stock Agreement and the Indemnification Agreement) and the Executive’s notice of resignation under this subsection is provided to the surviving entity following a Change of Control within the 60-day period following the closing of the Change of Control. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) ), (c), (e), or (cf) above, unless Executive shall have given written notice to the Company within a period not to exceed ten thirty (1030) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b), (c), (e) or (cf) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.
Appears in 2 contracts
Samples: Employment Agreement (Lucid Diagnostics Inc.), Employment Agreement (PAVmed Inc.)
By Executive for Good Reason. The 1. Executive, 's employment may be terminated by Executive by written notice to the Company, may terminate of Executive’s employment hereunder if a “Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean 's resignation delivered within sixty (60) days after the occurrence of any of the following circumstances without the events, each of which shall constitute "Good Reason" for resignation and together shall be "Good Reason Events":
a. a material reduction in Executive’s prior written consent: 's Base Salary (a) unless such reduction is part of an across-the-board reduction affecting all Company executives with a substantial and material adverse change in the nature of Executive’s comparable role or title, duties or responsibilities with ); and
b. a requirement by the Company to relocate Executive to a location that represents is greater than twenty-five (25) miles from the location of the office in which Executive performs Executive's duties hereunder at the time of such relocation; and
c. in connection with a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of a “Change in Control” , a failure by the successor person or entity, or the Board, to honor this Agreement or to present Executive with an employment agreement containing provisions substantially similar to this Agreement or otherwise satisfactory to Executive and which is executed by Executive.
2. Executive shall give the Company written notice of Executive's intention to resign for Good Reason within sixty (60) days after the occurrence of one of the Good Reason Events. The notice must state with reasonable specificity the Good Reason Event. Thereafter, the Company shall have sixty (60) days (the "Cure Period") to rescind the Good Reason Event(s). If the Company rescinds the Good Reason Event(s) within the Cure Period, Executive no longer shall have the right to resign for Good Reason. If the Company fails to rescind the Good Reason Event(s) before the expiration of the Cure Period, then Executive may resign for Good Reason as defined below), no Demotion long as the resignation for Good Reason occurs within thirty (30) days following the expiration of the Cure Period; otherwise the right to resign on the basis of such Good Reason Event(s) shall be deemed to have occurred been waived. If Executive resigns for Good Reason as long as defined in this Section VI.F., Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) material breach of be entitled to receive:
a. all Base Salary and benefits due to Executive under this Agreement by through the Company; Date of Termination (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, payable within thirty (30) calendar days after of the Date of Termination, with the date of such notice, payment determined by the Company shall not have cured in its sole discretion) and a pro-rata portion of any Bonus or eliminated other compensation that Executive has earned as of the problem or thing giving rise Date of Termination, which Bonus amount will be determined after the end of the fiscal year for which the Bonus was in place and paid in accordance with the terms of the Company's Bonus plan;
b. an amount equal to such “Good Reason”Executive's Base Salary for a total of two (2) years following the Date of Termination upon Executive's execution of a full release of claims in favor of the Company; provided, however, that no more than such release must be executed and become effective and any revocation period must expire within sixty (60) days of the Date of Termination in order for Executive to receive the benefits described herein; and
c. group medical benefits for two cure periods shall be provided during any twelve-month period (2) years after the Date of Termination upon Executive's execution of a breach full release of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth claims in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors favor of the Company as described in Section VI.F.2.b. The costs of the date Company's portion of any premiums due under this Agreement, Section VI.F.2.c. shall be included in Executive's gross income to the extent the provision of securities such benefits is deemed to be discriminatory under Section 105(h) of the Company Code.
3. The amounts in Section VI.F.2.b. and VI.F.2.c. above shall be paid to Executive periodically at the Company's regular payroll dates commencing within sixty (60) days following the Date of Termination (the commencement date which will be determined by the Company) provided that Executive has executed the release as described therein.
4. All outstanding stock options, restricted stock, restricted stock units and any other unvested equity incentives shall be treated solely in one or more transactions) having 50% or more accordance with the terms of the total voting power award agreements to which the Company and Executive are parties on the Date of Termination. In addition, all amounts contributed by the Company’s securities than outstandingCompany to the CAP for the benefit of Executive shall vest and thereafter be paid out in accordance with the terms of the CAP as in effect on the Date of Termination.
Appears in 2 contracts
Samples: Employment Agreement (Healthways, Inc), Employment Agreement (Healthways, Inc)
By Executive for Good Reason. The Executive, by written notice to the Company, may terminate Executive’s employment hereunder if a “Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following circumstances without the Executive’s prior written consent: (a) a substantial and material adverse change in the nature of Executive’s title, duties or responsibilities with the Company (other than as a director of the Company) that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a change of the principal office or work place assigned to the Executive to a location more than 35 miles distant from its location immediately prior to such change; (e) a material reduction of the Executive’s Base Salary or bonus opportunity, unless pursuant to a reduction in such items applicable proportionally to all senior management and board members; (f) a liquidation, bankruptcy or receivership of the Company; or (g) any reason or no reason following a Change of Control (as defined in the Restricted Common Stock Agreement and Indemnification Agreement) and the Executive’s notice of resignation under this subsection is provided to the surviving entity following a Change of Control within the 60-day period following the closing of the Change of Control . Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b), (c), (d) or (ce) above, unless Executive shall have given written notice to the Company within a period not to exceed ten thirty (1030) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) ), (c), (d), or (ce) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.
Appears in 2 contracts
Samples: Employment Agreement (Lucid Diagnostics Inc.), Employment Agreement (PAVmed Inc.)
By Executive for Good Reason. The ExecutiveDuring the Term, by written notice to the Company, Executive may terminate Executive’s his employment hereunder if a “at any time for Good Reason” exists. For purposes of this Agreement, the following shall constitute “Good Reason” shall mean the occurrence of any of the following circumstances without the for termination by Executive’s prior written consent: :
(a) a substantial and any material adverse change diminution in the nature of Executive’s titleauthority, duties or responsibilities with the Company Company;
(b) the assignment to Executive of any duties or responsibilities that represents a demotion from his title, are materially inconsistent with Executive’s existing duties or responsibilities as Executive Chairman;
(c) any reduction by the Company in effect immediately prior Executive’s Base Salary, Management Bonus or Retention Bonus;
(d) a Change in Control;
(e) unless otherwise consented to such change in writing by Executive, the imposition of any requirement that Executive relocate to, or perform any of his duties hereunder at, any location that is more than fifty (such change50) miles from his current primary residence located at 0000 Xxxxxx Xxxxx Xxxx, a “Demotion”)Xxxxxxxxxxxxxx, Xxxxx 00000; provided, however, that reasonable and customary business travel, and the expectation that Executive will perform certain functions in other offices of the Company in the event ordinary course of business consistent with past practices, shall not be deemed a “Change in Control” required relocation under this Section 5.5(e);
(as defined below)f) the Company’s failure to obtain the express assumption of this Agreement by any successor to the Company;
(g) any material breach by the Company of any agreement (including, no Demotion without limitation, this Agreement) between it and Executive; or
(h) any requirement that Executive report to some person or persons other than the Board. Any Good Reason shall not be waived by Executive’s continued employment following an act or omission giving rise to such Good Reason. However, Executive shall not be deemed to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (bbeen terminated for Good Reason pursuant to Section(s) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a5.5(a), (b), (c), (f) or (cg) above, unless Executive shall have given above without having first provided at least thirty (30) days written notice to the Company setting forth the specific acts or omissions which constitute or give rise to Good Reason and the Company fails to cure such acts or omissions within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such noticeday notice period. If Executive’s employment is terminated by Executive for Good Reason then, in addition to immediately paying Executive the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; providedFinal Compensation and Final Bonus, however, that no more than two cure periods Executive shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) abovepaid the Severance Payment. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors Any obligation of the Company to provide Executive the Severance Payment is conditioned on Executive signing, delivering the Release to the Company and not revoking the Release as provided therein within sixty (60) days after the Termination Date. The Severance Payment shall be paid in accordance with the following schedule: (i) an amount equal to 50% of the Severance Payment will be payable in four (4) equal payments, with (A) the first payment being at the Company’s next regular payroll period which is at least five (5) business days following the effective date of the Release (provided that if the 60-day time period for the Release begins in one taxable year and ends in a subsequent taxable year, the first payment shall be paid in the subsequent taxable year (for example, if Executive terminates on December 1, then the first payment shall not be paid until on or after January 1 of the next year, regardless of when the Release is returned), and (B) each of the remaining Quarterly Payments being paid on the next payroll period following the third, sixth and ninth month anniversary dates of the first payment; and (ii) the remaining amount of the Severance Payment will be payable in nine (9) equal monthly payments with the first of such payments being paid on the first payroll period coinciding with or next following one (l) month after the last Quarterly Payment, and each of the remaining eight (8) payments being paid monthly thereafter. In the event Executive terminates his employment for Good Reason, any and all incentive or other unvested grants or deferred compensation awards shall be fully and immediately vested as of the date of this Agreement, of securities of the Company (in one Termination Date without any further action by Executive or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.
Appears in 2 contracts
Samples: Restructuring Support and Forbearance Agreement, Restructuring Support and Forbearance Agreement (Goodman Networks Inc)
By Executive for Good Reason. The ExecutiveDuring the Term, by written notice to the Company, Executive may terminate Executive’s his employment hereunder if a at any time for Good Reason. The following shall constitute “Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following circumstances without the for termination by Executive’s prior written consent: :
(a) a substantial and any material adverse change diminution in the nature of Executive’s titleauthority, duties or responsibilities with the Company;
(b) the assignment to Executive of any duties or responsibilities that are materially inconsistent with Executive’s existing duties or responsibilities as Executive Chairman;
(c) any material reduction by the Company in Executive’s Base Salary, Management Bonus or Retention Bonus;
(d) following a Change in Control, any change in the Executive’s status, reporting, duties or position that represents a demotion or diminution from his titleExecutive’s status, reporting, duties or responsibilities as position in effect immediately prior before such Change in Control;
(e) unless otherwise consented to such change in writing by Executive, the imposition of any requirement that Executive relocate to, or perform any of his duties hereunder at, any location that is more than fifty (such change50) miles from the Dallas/Fort Worth, a “Demotion”)Texas metropolitan area; provided, however, that reasonable and customary business travel, and the expectation that Executive will perform certain functions in other offices of the Company in the event ordinary course of business consistent with past practices shall not be deemed a “Change in Control” required relocation under this Section 5.5(e).
(as defined below)f) the Company’s failure to obtain the express assumption of this Agreement by any successor to the Company; or
(g) any material breach by the Company of any agreement (including this Agreement) between it and Executive. Any Good Reason shall not be waived by Executive’s continued employment following an act or omission giving rise to such Good Reason. However, no Demotion Executive shall not be deemed to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (bbeen terminated for Good Reason pursuant to Section(s) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a5.5(a), (b), (c), (f) or (ch) above, unless Executive shall have given above without having first provided at least thirty (30) days written notice to the Company within a period not setting forth the specific acts or omissions which constitute or give rise to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, Reason and the Company shall not have cured fails to cure such acts or eliminated omissions within the problem or thing giving rise 30 day notice period. If Executive’s employment is terminated by Executive for Good Reason then, in addition to such “Good Reason”; providedimmediately paying Executive the Final Compensation and Final Bonus, however, that no more than two cure periods Executive shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) abovepaid the Severance Payment. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors Any obligation of the Company to provide Executive the Severance Payment is conditioned on Executive signing, delivering the Release to the Company and not revoking the Release as provided therein within sixty (60) days of his Termination Date. The Severance Payment paid in accordance with the following schedule: (i) the first $500,000 of the Severance Payment will be payable in four (4) equal payments, with (A) the first payment being at the Company’s next regular payroll period which is at least five (5) business days following the effective date of the Release (provided that if the 60-day time period for the Release begins in one taxable year and ends in a subsequent taxable year, the first payment shall be paid in the subsequent taxable year (for example, if Executive terminates on December 1, then the first payment shall not be paid until on or after January 1 of the next year, regardless of when the Release is returned), and (B) each of the remaining Quarterly Payments being paid on the next payroll period following the third, sixth and ninth month anniversary dates of the first payment; and (ii) the remaining amount of the Severance Payment will be payable in nine (9) equal monthly payments with the first of such payments being paid on the first payroll period coinciding with or next following one (1) month after the last Quarterly Payment, and each of the remaining eight (8) payments being paid monthly thereafter. In the event the Company terminates Executive’s employment without Cause, any and all incentive or other unvested grants or deferred compensation awards shall be fully and immediately vested as of the date of this Agreement, of securities of the Company (in one Termination Date without any further action by Executive or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.
Appears in 2 contracts
Samples: Executive Employment Agreement (Goodman Networks Inc), Executive Employment Agreement (Goodman Networks Inc)
By Executive for Good Reason. The Executive, by written notice to the Company, Executive may terminate Executive’s his employment hereunder if a “for Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following circumstances without the Executive’s prior written consent: (a) a substantial and material adverse change in the nature of Executive’s title, duties or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as provided Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have has first given written notice to the Company within a period not of such alleged Good Reason and the Company has failed to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “cure such Good Reason” with reasonable particularity and, Reason within thirty (30) calendar days after of receipt of such notice, . Executive must provide prompt notice of the Company shall not have cured or eliminated the problem or thing occurrence giving rise to such “the Good Reason”; provided. In the event that Executive elects to terminate this Agreement for Good Reason, however, that no more than two cure periods Executive shall be provided during any twelve-month period of a breach of clauses entitled to:
(a), (bi) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors payment of the Company Accrued Obligations and the Pro Rata Bonus; and
(ii) a lump sum severance payment (which shall be paid upon effectiveness of the Release, as defined below) comprised of the following cash amounts:
(x) the product of one and the annual Base Pay,
(y) the product of one and the value of the Incentive Awards granted or vested during the calendar year that ended immediately before (or, if applicable, coincident with) the date of termination of employment, with the value of any shares subject to such Incentive Awards valued as of the date of this Agreementemployment termination (with the Incentive Awards granted within such period valued without regard to time vesting conditions and treated as if any performance vesting conditions that remained open at the time of employment termination were attained at target level), and
(z) an amount that, after payment of securities taxes, is equal to the cost of the Company (in one or more transactions) having 50% or more of the total voting power of all twelve months COBRA coverage for Executive and his dependents under the Company’s securities than outstandinghealth, dental and vision plans, at such rates as are in effect as of the date of employment termination. Executive’s entitlement to the payments described in clause (ii) (the “Severance Payments”) is conditioned on his execution of the release in the form attached hereto as Exhibit A (the “Release”) within 32 days after his employment termination (and, if the 40th day after his employment termination falls in the calendar year following the year that includes his employment termination date, the amounts described in clause (ii) shall be paid on such 40th day even if the Release is effective before such date). In addition to the foregoing provisions, the provisions of Section 6(d) and Section 6(e) of this Agreement shall terminate upon the date of termination of employment pursuant to this Section 4(c).
Appears in 2 contracts
Samples: Employment Agreement (Globe Specialty Metals Inc), Employment Agreement (Globe Specialty Metals Inc)
By Executive for Good Reason. The ExecutiveAs used herein, by written notice to the Company, may terminate Executive’s employment hereunder if a “term "Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean " means the occurrence of any of the following circumstances following, without the Executive’s prior written consent: consent of the Executive:
(ai) assignment to the Executive of duties materially inconsistent with the Executive's positions as described in Section 2.1 hereof, or any significant diminution in the Executive's duties or responsibilities, other than in connection with the termination of the Executive's employment for Cause, Disability or as a substantial and material adverse result of the Executive's death or by the Executive other than for Good Reason;
(ii) the change in the nature location of the Company's principal executive offices or of the Executive’s title's principal place of employment to a location outside the greater Fort Lauderdale-Miami, duties or responsibilities with Florida metropolitan area/more than fifty (50) fifty miles from the Company that represents a demotion from his titlecurrent location. The Executive will have the option to transfer to the new location, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of same or equivalent position at a “Change in Control” (as defined below), no Demotion shall be deemed reasonable expense to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; .
(biii) any material breach of this Agreement by the Company; Company which is continuing;
(civ) a failure by Change in Control, provided that a Change of Control shall only constitute Good Reason if the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or terminates his employment within six (d6) months following a liquidation, bankruptcy or receivership Change of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”Control; provided, however, that no more than two cure periods the Executive shall not be provided during any twelve-month period of a breach of deemed to have Good Reason pursuant to clauses (a), (bi) or (ciii) above. Upon such termination, above unless the Executive gives the Company written notice that the specified conduct or event has occurred and the Company fails to cure such conduct or event within thirty (30) days of the receipt of such notice. A "Change of Control" shall pay be deemed to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisitionhave occurred when any person, by any person or entity other than the Company and/or any officers Executive or directors of the Company as of his respective affiliates, associates, or estate, becomes, after the date of this Agreementgrant, the beneficial owner, directly or indirectly, of securities of the Company (in one or more transactions) having representing 50% or more of the total combined voting power of all the Company’s securities than outstanding.'s then-outstanding securities;
Appears in 2 contracts
Samples: Executive Employment Agreement (Capstone Companies, Inc.), Executive Employment Agreement (Capstone Companies, Inc.)
By Executive for Good Reason. The Executive, by written notice to the Company, Executive may terminate Executive’s this Agreement and his employment hereunder if a “Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean in the occurrence event of any of the following circumstances without (each of which shall constitute “Good Reason”) and the Executive’s prior LIN Companies shall have failed to have reasonably remedied such condition within thirty (30) days following written consent: notice from Executive setting forth in reasonable detail the condition giving rise to such Good Reason:
(ai) a substantial and material adverse change in either of the nature LIN Companies fails to perform its respective obligations or breaches any of its covenants or warranties under this Agreement;
(ii) the relocation of Executive’s titleprimary office to a location that is more than thirty-five (35) miles from both of (A) the Company’s headquarters in Rhode Island, unless such office is moved closer to Executive’s primary residence at the time of such relocation, and (B) Executive’s residence at the time of such relocation; or
(iii) the Board of Parent or the board of directors of the Company approves, without Executive’s consent or for reasons other than those set forth in Section 8(a), (A) a reduction in Executive’s Base Salary, the Results Bonus Base Amount or the target amount for the Performance Bonus, or (B) the assignment to Executive of any duties inconsistent in any material respect with, or effect a material diminution of, Executive’s duties, titles, offices, or responsibilities with the Company that represents Parent or the Company, or any demotion of Executive from, or any failure to reelect or reappoint Executive to any of such positions (except in connection with the termination of Executive’s employment for disability or Cause or as a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”result of Executive’s death); provided, however, that with respect to the foregoing clause (B) if subsequent to a Change in Control (as hereinafter defined in Section 24), Executive maintains over the event business of a “the Company substantially the same authority and responsibility with respect thereto that he held prior to such Change in Control, the requirement that the Executive report to officers or the board of parent companies, or a change in the title of Executive, shall not of itself constitute “Good Reason.” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses foregoing clause (a), B) of this paragraph (bii) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured apply to Executive’s duties, title, office, responsibilities or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of status as a breach of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors director of the Company as of the date of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstandingParent.
Appears in 1 contract
By Executive for Good Reason. (a) Executive may terminate her employment for Good Reason by providing a Notice of Termination to the Board within sixty (60) days of the occurrence of the circumstances giving rise to such Good Reason (or, solely with respect to Section 5.4(c)(v) below, within sixty (60) days of Executive’s knowledge of such occurrence). The foregoing notice shall describe the claimed event or circumstance and set forth Executive’s intention to terminate her employment with the Company; provided, that, the Company has not substantially cured such event within thirty (30) days after receiving such notice.
(b) Upon termination by written notice Executive of her employment for Good Reason, Executive will be entitled to (contingent on Executive delivering to the Company, may terminate and not revoking, an executed Release within the 35 Day Period); provided, that the Company has delivered to Executive for execution the Release within three (3) business days following the Date of Termination:
(i) the greater of (A) Executive’s employment hereunder aggregate then current Base Salary for the remainder of the Term and (B) two (2) times Executive’s then current Base Salary, which payment under this Section 5.4(b)(i) shall be made in twelve (12) equal monthly installments (each such installment shall be treated as a separate payment under Section 409A of the Code);
(ii) subject to Section 5.8, if a “Good Reason” exists. Executive intends to continue her medical coverage under COBRA, the Company shall pay for coverage under COBRA for one (1) year following the Date of Termination;
(iii) (A) the vesting in full of her then unvested Restricted Shares and Option Shares that would have vested on the next vesting date immediately following the Date of Termination and (B) the vesting of fifty percent (50%) of her remaining unvested Restricted Shares; and
(iv) (A) the vesting in full of her then unvested Performance Shares that would have vested on the Service-Based Vesting Date immediately following the Date of Termination provided that the Share Appreciation Target for such measurement period is achieved prior to the Date of Termination and (B) the vesting of fifty percent (50%) of her remaining unvested Performance Shares provided that the respective Share Appreciation Target is achieved prior to the Date of Termination, calculated in each case pursuant to Section 3.7(b)(ii).
(c) For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following circumstances without the Executive’s prior written consent: (a) a substantial and material adverse change in the nature of Executive’s title, duties or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.mean:
Appears in 1 contract
Samples: Employment Agreement (Wet Seal Inc)
By Executive for Good Reason. (a) Executive may terminate his employment for Good Reason by providing a Notice of Termination to the Board within sixty (60) days following the occurrence of the circumstances giving rise to such Good Reason (or, solely with respect to Section 5.4(c)(iv) below, within sixty (60) days following Executive’s knowledge of such occurrence). The foregoing notice shall describe the claimed event or circumstance and set forth Executive’s intention to terminate his employment with the Company; provided, that, the Company has not substantially cured such event within thirty (30) days after receiving such notice.
(b) Upon termination by written notice Executive of his employment for Good Reason, Executive shall be entitled to (contingent on Executive delivering to the Company, may terminate and not revoking, an executed Release within the 35 Day Period; provided, that the Company has delivered to Executive for execution the Release within three (3) business days following the Date of Termination):
(i) the greater of (A) Executive’s employment hereunder aggregate then current Base Salary for the remainder of the Term and (B) two (2) times Executive’s then current Base Salary, which payment under this Section 5.4(b)(i) shall be made in twelve (12) equal monthly installments (each such installment shall be treated as a separate payment under Section 409A of the Code);
(ii) subject to Section 5.8, if a “Good Reason” exists. Executive intends to continue his medical coverage under COBRA, the Company shall pay for coverage under COBRA for one (1) year following the Date of Termination;
(iii) (A) the vesting in full of his then unvested Restricted Shares and Option Shares that would have vested on the next vesting date immediately following the Date of Termination and (B) the vesting of fifty percent (50%) of his remaining unvested Restricted Shares; and
(iv) (A) the vesting in full of his then unvested Performance Shares that would have vested on the Service-Based Vesting Date immediately following the Date of Termination; provided, that the Share Appreciation Target for such measurement period is achieved prior to the Date of Termination and (B) the vesting of fifty percent (50%) of his remaining unvested Performance Shares; provided, that the respective Share Appreciation Target is achieved prior to the Date of Termination, calculated in each case pursuant to Section 3.7(b)(ii).
(c) For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following circumstances without the Executive’s prior written consent: (a) a substantial and material adverse change in the nature of Executive’s title, duties or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.mean:
Appears in 1 contract
Samples: Employment Agreement (Wet Seal Inc)
By Executive for Good Reason. The Executive, by written notice to the Company, may terminate Executive’s employment hereunder if a “Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following circumstances without the Executive’s prior written consent: (a) a substantial and material adverse change in the nature of Executive’s title, duties or and/or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”)) or the assignment to Executive of any duties materially inconsistent with Executive’s position, authority, duties and/or responsibilities as contemplated by Section 1.1 hereof; provided, however, that in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the Company’s head operational executive officer, notwithstanding titletitle and provided there is no decrease in Executive’s compensation and benefits; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. For purposes of this Agreement, “Change in Control of the Company” shall be deemed to have occurred if any “person” (as such term is used in Sections 13 (d) and 14 (d) of the Exchange Act and the Regulations promulgated there under), other than the Company and/or any officers or directors of the Company as of the date of this Agreement, acquires, directly or indirectly, 50% or more of the Full Voting Power of the Company. “Full Voting Power” shall mean the right to vote in the election of one or more directors through proxy or by the beneficial ownership of the common stock or other securities then entitled to vote in the election of one or more directors. For purposes of calculating the percentage ownership of Full Voting Power of a person, all warrants, option or rights held by all persons with respect to the Company shall be deemed to have been exercised and all convertible or exchangeable securities shall be deemed to have been converted or exchanged, as the case may be disregarding for such purposes any restrictions on conversion, voting (such as proxies), exchange or exercise, in each case for the maximum number of shares of the common stock or other securities entitled to then vote in the election of one or more directors Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) (c) or (ce) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the Executive’s knowledge of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) or (e above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.
Appears in 1 contract
By Executive for Good Reason. The Executive, by written notice to the Company, Executive may terminate Executive’s employment hereunder if a “this Agreement for Good Reason” existsReason and receive from the Company the payments set forth below and in Section 9 hereto. For purposes of this Agreement, “Good Reason” Reason shall mean the occurrence of any of the following circumstances following:
(a) any breach of any of the material terms of this Agreement by the Company, continuing for more than fifteen (15) days after written notice thereof has been received by the Company from Executive, that such breach will be grounds for termination for Good Reason;
(b) without the consent of Executive, a material change or diminution of the Executive’s prior role, responsibilities or duties; including, but not limited to, no-longer being employed as the Chief Executive Officer of a company whose securities are publicly traded on a nationally recognized securities exchange;
(c) without the consent of Executive, a material change or any reduction in the salary, authorities, powers, functions and/or duties associated with Executive’s position, which reduction is not rescinded within five (5) business days after the Company has received written consent: notice from Executive that such reduction will be grounds for termination for Good Reason; provided, however, that Executive shall deliver any such notice of such material reduction within thirty (a30) days of his knowledge of the occurrence of such material change or reduction;
(d) if there is a substantial Change in Control of the Company and either (i) the Executive is terminated from being a director, officer or employee of, or from performing other services for, the Company or a subsidiary of the Company within two years after such Change in Control or (ii) without the consent of Executive, a material adverse change in the nature of authorities, powers, functions and/or duties associated with Executive’s titleposition or any reduction in Executive’s Base Salary or AIP targeted bonus payout percentages as set forth in Section 2(a)(ii) of this Agreement occurs, duties or responsibilities with which reduction is not rescinded by the Company that represents within five (5) business days of its occurrence, then Executive shall be entitled to receive a demotion from his titlelump sum payment equal to three (3) times the sum of (A) Executive’s then Base Salary (or in the event a reduction in Base Salary is the basis for a Termination by Executive for Good Reason, duties or responsibilities as then the Base Salary in effect immediately prior to such change reduction) and (B) Executive’s AIP bonus payment, calculated at the “Target” level, for the Company fiscal year in which the termination of Executive’s employment occurred. Executive shall also be entitled to receive his Vested Benefits. For the avoidance of doubt, in the event that Executive provides notice to the Company pursuant this section 8.2(d)) and there is no rescission by the Company within the prescribed timeframe set forth herein, then Executive shall be entitled to receive all payments and consideration set forth in this section, so long as Executive also agrees to no-longer by employed by the Company once all such changepayments and consideration are received by him;
(e) without the consent of Executive either (i) Executive ceases to report directly the Board, a “Demotion”)or (ii) Executive ceases to be the final decision maker on all business related matters for the Company, either of which circumstance is not rescinded within five (5) business days after the Company has received written notice from Executive that such event will be grounds for termination for Good Reason; provided, however, that in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) deliver any such notice of such material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, reduction within thirty (30) calendar days after of his knowledge of the occurrence of such noticematerial change or reduction; or
(f) without the consent of Executive, moving of the Company’s New York City corporate headquarters beyond a 50 mile radius of the Company’s existing headquarters location. In the event of the termination of this Agreement pursuant to Section 8.2, the Company Restricted Period shall not have cured or eliminated apply to the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date provisions of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.
Appears in 1 contract
By Executive for Good Reason. The Executive, by written notice to the Company, may terminate Executive’s employment hereunder if a “Good Reason” Reason exists. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following circumstances without the Executive’s prior written consent: (a) a substantial and material adverse change in the nature of Executive’s title, duties or and/or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” Reason shall be deemed to exist (A) if Executive’s title is changed from Chief Executive Officer of the Company to Chief Innovation Officer or Head of Business Development of the Company and Executive retains duties and responsibilities substantially similar to those assigned to similar officers at comparable companies; and (B) with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the Executive’s knowledge of the initial existence of the occurrence, specifying the “Good Reason” Reason with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.
Appears in 1 contract
By Executive for Good Reason. The ExecutiveExecutive may, at any time during the Employment Period by written notice to Employer, terminate the Company, may terminate Executive’s employment hereunder if a “Employment Period under this Agreement for "Good Reason” exists" (as defined below) effective immediately. For the purposes of this Agreementhereof, “"Good Reason” shall mean the occurrence of " means any of the following circumstances without the Executive’s prior written 's consent: (ai) the assignment to the Executive of any duties or the significant reduction of the Employee's duties, either of which is inconsistent with the Executives position with the Employer and responsibilities in effect immediately prior to such assignment; provided, however, that a reduction in duties, position or responsibilities solely by virtue of the Employer being acquired and made part of a larger entity (as, for example, when the Chairman, CEO & President of the Employer remains as such following a change of control but is not made the Chairman, CEO & President of the acquiring corporation) shall not constitute Good Reason; (ii) a substantial reduction, without good business reasons, of the facilities and material adverse change perquisites available to the Executive immediately prior to such reduction; (iii) a reduction by the Employer in the nature of Executive’s title, duties or responsibilities with the Company that represents a demotion from his title, duties or responsibilities Base Salary and target bonus as in effect immediately prior to such change reduction; (such change, iv) a “Demotion”); provided, however, that material reduction by the Employer in the event kind or level of employee benefits to which the Executive is entitled immediately prior to such reduction, with the result that the Executive's overall benefits package is significantly reduced; (v) the relocation of the Executive to a “Change in Control” facility or a location more than 35 miles from the Executive's then present location; (vi) any purported termination of the Executive by the Employer that is not effected for Cause (other than on account of Disability, as defined below), no Demotion shall be deemed or any purported termination for which the grounds relied upon are not valid; or (vii) the failure of the Employer to have occurred as long as Executive shall remain as obtain the Company’s head operational officer, notwithstanding title; (b) material breach assumption of this Agreement by any successors to the Company; (c) Employer. Notwithstanding anything herein to the contrary, any change or diminishment in Executive's duties or responsibilities which occurs solely as a failure result of the Merger and the fact that Executive is employed by the Company to make any payment to Executive when duecombination of Concentric, unless Nextlink and the payment is Employer rather than solely by Concentric shall not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “constitute Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period Executive's duties and responsibilities are substantially equivalent to those of a breach of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors senior ranking executive of the Company as of the date of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstandingEmployer.
Appears in 1 contract
Samples: Employment Agreement (Nextlink Communications Inc/New)
By Executive for Good Reason. The Executive shall have the right to terminate Executive's employment, by written notice without further obligation or liability to the Company, may terminate except that any termination of Executive’s 's employment hereunder if a “Good Reason” exists. For purposes of under this AgreementSection 4(E) shall require the Company to make the same payments it would make upon Termination Without Cause by Company under Section 4(D), “Good Reason” shall mean upon the occurrence of any one or more of the following circumstances events, which events shall be deemed termination by Executive for "Good Reason":
(i) If Executive's position (including responsibilities, title, reporting requirements or authority) is reduced below the level of a [vice president] of Company; or
(ii) If Company willfully commits a material breach of this Agreement; or
(iii) If Company requires Executive to render Executive's services hereunder at a location greater than fifty (50) miles from Camarillo, California without the Executive’s 's prior written consent: (a) a substantial and material adverse change in the nature of Executive’s title, duties or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that if Company requests that Executive relocate to any such location and Executive does not agree to such relocation, the provisions of subsection (i) above shall not apply but Company agrees to use its best efforts to employ Executive in a managerial position with Company. Upon the event of a “Change in Control” (as defined below), no Demotion shall be deemed failure to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make cure any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company events/breaches set out above within a period not to exceed ten (10) calendar business days after Company's receipt of written notice (the initial existence of the occurrence, "Initial Notice") from Executive specifying the “applicable events/breaches, Executive shall have the right to elect to terminate Executive's employment for Good Reason” with reasonable particularity and, within thirty Reason by giving a second written notice (30the "Second Notice") calendar days after such notice, the to Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”effect; provided, however, that no more than two with respect to any such events/breaches that are capable of prospective cure, if Company commences to effect such a cure periods within the foregoing ten (10) day period, Company shall be provided during any twelve-month period of permitted additional time to cure and not be deemed in breach so long as it diligently continues to seek to effect a breach of clauses (a), (bcure. Any termination by Executive pursuant to this Section 4(E) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors be effective upon receipt of the Second Notice by Company of such termination or upon such other date as of may be specified by Executive in the date of this Agreement, of securities of Second Notice (the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding"Termination Date").
Appears in 1 contract
Samples: Employment Agreement (Power One Inc)
By Executive for Good Reason. The ExecutiveAs used herein, by written notice to the Company, may terminate Executive’s employment hereunder if a “term "Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean " means the occurrence of any of the following circumstances following, without the Executive’s prior written consentconsent of the Executive: 000 Xxx Xxxxx Blvd. Suite 120 Deerfield Beach, FL 33442 Ph: (a000)000-0000 | Fax: (000)000-0000 | Email: xxxx@xxxxxxxxxxxxxxxxxxxx.xxx xxx.xxxxxxxxxxxxxxxxxxxx.xxx
(i) assignment to the Executive of duties materially inconsistent with the Executive's positions as described in Section 2.1 hereof, or any significant diminution in the Executive's duties or responsibilities, other than in connection with the termination of the Executive's employment for Cause, Disability or as a substantial and material adverse result of the Executive's death or by the Executive other than for Good Reason;
(ii) the change in the nature location of the Company's principal executive offices or of the Executive’s title's principal place of employment to a location outside the greater Fort Lauderdale-Miami, duties or responsibilities with Florida metropolitan area/more than fifty (50) fifty miles from the Company that represents a demotion from his titlecurrent location. The Executive will have the option to transfer to the new location, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of same or equivalent position at a “Change in Control” (as defined below), no Demotion shall be deemed reasonable expense to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; .
(biii) any material breach of this Agreement by the Company; Company which is continuing;
(civ) a failure by Change in Control, provided that a Change of Control shall only constitute Good Reason if the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or terminates his employment within six (d6) months following a liquidation, bankruptcy or receivership Change of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”Control; provided, however, that no more than two cure periods the Executive shall not be provided during any twelve-month period of a breach of deemed to have Good Reason pursuant to clauses (a), (bi) or (ciii) above. Upon such termination, above unless the Executive gives the Company written notice that the specified conduct or event has occurred and the Company fails to cure such conduct or event within thirty (30) days of the receipt of such notice. A "Change of Control" shall pay be deemed to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisitionhave occurred when any person, by any person or entity other than the Company and/or any officers Executive or directors of the Company as of his respective affiliates, associates, or estate, becomes, after the date of this Agreementgrant, the beneficial owner, directly or indirectly, of securities of the Company (in one or more transactions) having representing 50% or more of the total combined voting power of all the Company’s securities than outstanding.'s then-outstanding securities;
Appears in 1 contract
Samples: Executive Employment Agreement (Capstone Companies, Inc.)
By Executive for Good Reason. The Executive, by written notice to the Company, may terminate Executive’s employment hereunder if a “Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following circumstances without the Executive’s prior written consent: (a) a substantial and material adverse change in the nature of Executive’s title, duties or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the Company’s head operational principal executive officer, notwithstanding title; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.
Appears in 1 contract
By Executive for Good Reason. The Executive, by written notice to the Company, Executive may terminate Executive’s employment hereunder if a “and the Period of Agreement for Good Reason” existsReason upon at least thirty (30) days’ prior written notice from the Executive to the Board. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any includes (i) demotion or removal of the following circumstances Executive from the positions of Chief Executive Officer of the Company, member of the Board or (without the Executive’s prior written consent: ) President of the Company; (aii) a substantial and material adverse change by the Company in the nature of Executive’s title, duties or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change responsibilities; (such change, a “Demotion”); provided, however, that iii) decrease in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as Executive’s Base Salary or the Company’s head operational officerfailure to provide an opportunity to earn performance bonuses as provided in Sections 4, notwithstanding titleabove, and Section 12, below; or (biv) any other material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment which is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, cured within thirty (30) calendar days days’ prior written notice by the Executive to the Company specifying such breach. “Good Reason” does not include (A) non-renewal of the Agreement at the conclusion of its initial term or upon any extension thereof, (B) election of a non-executive Chairman of the Board recommended by the nominating committee of the Board after such noticenon-binding consultation with the Executive and the Corporate Monitor (i.e., without the Executive’s consent but after consultation, the Company may elect a non-executive Chairman of the Board), (C) the failure of the Company to grant any annual equity award if established performance standards are satisfied, provided equivalent compensation is provided, or (D) implementation of any changes in corporate governance required as part of the SEC settlement or any other actions by the Company to comply with the Permanent Injunction or any other order binding on the Company issued by the Court or to comply with any provision of law. Termination by the Executive or the Company based on an alleged breach of this Agreement, including the alleged existence of Good Reason, shall require not less than thirty (30) days notice to the other party, which shall have cured or eliminated an opportunity to cure any such breach within said thirty (30) day period, and the problem or thing Executive shall be required to make any assertion of “Good Reason” within 45 days of the events allegedly giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.
Appears in 1 contract
Samples: Employment Agreement (Mci Inc)
By Executive for Good Reason. The Executive, by written notice to the Company, Executive may terminate Executive’s employment hereunder if a “this Agreement for Good Reason” existsReason and receive from the Company the payments set forth below and in Section 9 hereto. For purposes of this Agreement, “Good Reason” Reason shall mean the occurrence of any of the following circumstances without the Executive’s prior written consent: following:
(a) any breach of any of the material terms of this Agreement by the Company, continuing for more than fifteen (15) days after written notice thereof has been received by the Company from Executive, that such breach will be grounds for termination for Good Reason;
(b) without the consent of Executive, a substantial material change or any reduction in the salary, authorities, powers, functions and/or duties associated with Executive’s position, which reduction is not rescinded within five (5) business days after the Company has received written notice from Executive that such reduction will be grounds for termination for Good Reason; provided, however, that Executive shall deliver any such notice of such material reduction within thirty (30) days of his knowledge of the occurrence of such material change or reduction;
(c) without the consent of Executive, any proposed amendment or modification to the Plan, which would effect the vesting parameters or vesting schedule of any equity issued to Executive under the Plan in a manner which is adverse to the interests of the Executive, and which proposed amendment or modification is not rescinded within five (5) business days after written notice from Executive is received by the Company, that such proposed amendment or modification to the Plan will be grounds for termination for Good Reason;
(d) if there is a Change in Control of the Company and either (i) the Executive is terminated from being a director, officer or employee of, or from performing other services for, the Company or a subsidiary of the Company within two years after such Change in Control or (ii) without the consent of Executive, a material adverse change in the nature of authorities, powers, functions and/or duties associated with Executive’s titleposition or any reduction in Executive’s Base Salary or AIP targeted bonus payout percentages as set forth in Section 2(a)(ii) of this Agreement occurs, duties or responsibilities with which reduction is not rescinded by the Company that represents within five (5) business days of its occurrence, then Executive shall be entitled to receive a demotion from his titlelump sum payment equal to three (3) times the sum of (A) Executive’s then Base Salary (or in the event a reduction in Base Salary is the basis for a Termination by Executive for Good Reason, duties or responsibilities as then the Base Salary in effect immediately prior to such change reduction) and (such changeB) Executive’s AIP bonus payment, calculated at the “Target” level, for the Company fiscal year in which the termination of Executive’s employment occurred. Executive shall also be entitled to receive his Vested Benefits; or
(e) without the consent of Executive, moving of the Company’s New York City corporate headquarters beyond a “Demotion”); provided, however, that in 50 mile radius of the Company’s existing headquarters location. In the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) material breach termination of this Agreement by pursuant to Section 8.2, the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” Restricted Period shall be deemed to exist with respect apply to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date provisions of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.
Appears in 1 contract
By Executive for Good Reason. The Executive, by written notice to the Company, Executive may terminate Executive’s his employment hereunder if a “for Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following circumstances without the Executive’s prior written consent: (a) a substantial and material adverse change in the nature of Executive’s title, duties or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as provided Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have has first given written notice to the Company within a period not of such alleged Good Reason and the Company has failed to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “cure such Good Reason” with reasonable particularity and, Reason within thirty (30) calendar days after of receipt of such notice, . The date of such termination must be no more than 90 days from the Company shall not have cured or eliminated date of the problem or thing occurrence giving rise to such “the Good Reason”; provided. In the event that Executive elects to terminate this Agreement for Good Reason, however, that no more than two cure periods Executive shall be provided during any twelve-month period of a breach of clauses entitled to:
(a), (bi) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors payment of the Company Accrued Obligations and the Pro Rata Bonus; and
(ii) a lump sum severance payment (which shall be paid upon effectiveness of the Release, as defined below) comprised of the following cash amounts:
(x) the product of one and one half (1.5) and the annual Base Pay,
(y) the product of one and one half (1.5) and the value of the Incentive Awards granted or vested during the calendar year that ended immediately before (or, if applicable, coincident with) the date of termination of employment, with the value of any shares subject to such Incentive Awards valued as of the date of this Agreementemployment termination (with the Incentive Awards granted within such period valued without regard to time vesting conditions and treated as if any performance vesting conditions that remained open at the time of employment termination were attained at target level), and
(z) an amount that, after payment of securities taxes, is equal to the cost of the Company (in one or more transactions) having 50% or more of the total voting power of all eighteen months COBRA coverage for Executive and his dependents under the Company’s securities than outstandinghealth, dental and vision plans, at such rates as are in effect as of the date of employment termination. Executive’s entitlement to the payments described in clause (ii) (the “Severance Payments”) is conditioned on his execution of the release in the form attached hereto as Exhibit A (the “Release”) within 32 days after his employment termination (and, if the 40th day after his employment termination falls in the calendar year following the year that includes his employment termination date, the amounts described in clause (ii) shall be paid on such 40th day even if the Release is effective before such date). In addition to the foregoing provisions, the provisions of Section 6(d) and Section 6(e) of this Agreement shall terminate upon the date of termination of employment pursuant to this Section 4(c).
Appears in 1 contract
By Executive for Good Reason. The ExecutiveIf Executive shall resign for Good Reason, Executive shall be entitled to continue to receive his Base Salary and Bonus (pro-rated to the date of termination and paid in accordance with Section 3(b) above) payable in regular installments as special severance payments from the date of termination for a period of twelve (12) months thereafter, if and only if Executive has executed and delivered to Employer the General Release substantially in form and substance as set forth in Exhibit A attached hereto and only so long as Executive has not revoked or breached the provisions of the General Release or breached the provisions of this Agreement or the Non-Compete Agreement and does not apply for unemployment compensation chargeable to Employer during such twelve (12) month period, and Executive shall not be entitled to any other salary, compensation or benefits after termination of the Period of Employment, except as specifically provided for in Employer’s employee benefit plans or as otherwise expressly required by applicable law (such as COBRA). Notwithstanding anything to the contrary contained in this Section 4(c), in the event Executive breaches the provisions of this Agreement or any Ancillary Agreement, the severance amounts payable by Employer under this Section 4(c) shall not terminate unless and until more than fifteen (15) days have elapsed from and after the date written notice of such breach has been delivered to Executive without such breach having been cured during such 15-day period provided, however, Executive will be permitted to avail himself of the Company, may terminate Executive’s employment hereunder if a “Good Reason” existscure rights contained in this Section 4(c) one time only during the Period of Employment. For purposes of this AgreementSection 4(c), “Good Reason” shall will mean Executive’s voluntary resignation within ninety (90) days after the occurrence of any of the following circumstances following: (i) without the express written consent of Executive, a reduction in Executive’s prior annualized Base Salary; (ii) without the express written consent: (a) a substantial and material adverse change in the nature consent of Executive’s title, duties or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that material diminution in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the CompanyExecutive’s head operational officer, notwithstanding title; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faithsupervisory responsibilities; or (diii) the relocation of Executive in connection with any relocation of Employer’s principal place of business to a liquidation, bankruptcy facility or receivership a location more than fifty (50) miles outside of the Companygreater Coeur d’Alene, Idaho area without Executive’s written consent. Notwithstanding In addition, Employer shall pay Executive’s COBRA health insurance premiums from the foregoing, no “date of termination by Executive for Good Reason through the date that is twelve (12) months after the date of termination by Executive for Good Reason” shall be deemed to exist with respect to . In the Company’s acts described in clauses (a), (b) or (c) above, unless event that Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “terminates his employment for Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise be entitled to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay deliver written notice to Executive within fifteen (15) days following such termination demanding that the amount determination of the existence of Good Reason be determined by arbitration in accordance with the procedures set forth in Section 4.6(c)9 hereof. “Change in Control” If the arbitrator determines that Good Reason did not exist, the termination shall mean the acquisition, be treated as a voluntary termination by any person or entity other than Executive and the Company and/or any officers shall have no obligations to pay or directors of provide to Executive the Company as of compensation payments and other benefits to which he would have otherwise been entitled to pursuant to a termination for Good Reason. If the date of arbitrator determines that Good Reason did exist, Executive shall be entitled to the compensation payments and other benefits set forth in this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstandingSection 4(c).
Appears in 1 contract
Samples: Employment Agreement (NightHawk Radiology Holdings Inc)
By Executive for Good Reason. The ExecutiveDuring the Term, by written notice to the Company, Executive may terminate Executive’s his employment hereunder if a “at any time for Good Reason” exists. For purposes of this Agreement, the following shall constitute “Good Reason” shall mean the occurrence of any of the following circumstances without the for termination by Executive’s prior written consent: :
(a) a substantial and any material adverse change diminution in the nature of Executive’s titleauthority, duties or responsibilities with the Company Company;
(b) the assignment to Executive of any duties or responsibilities that represents a demotion from his title, are materially inconsistent with Executive’s existing duties or responsibilities as Executive Chairman;
(c) any reduction by the Company in effect immediately prior Executive’s Base Salary, Management Bonus or Retention Bonus;
(d) a Change in Control;
(e) unless otherwise consented to such change in writing by Executive, the imposition of any requirement that Executive relocate to, or perform any of his duties hereunder at, any location that is more than fifty (such change50) miles from his current primary residence located at 0 Xxxxx Xxxxx, a “Demotion”)Xxxxxx, Xxxxx 00000; provided, however, that reasonable and customary business travel, and the expectation that Executive will perform certain functions in other offices of the Company in the event ordinary course of business consistent with past practices, shall not be deemed a “Change in Control” required relocation under this Section 5.5(e);
(as defined below)f) the Company’s failure to obtain the express assumption of this Agreement by any successor to the Company;
(g) any material breach by the Company of any agreement (including this Agreement) between it and Executive; or
(h) any requirement that Executive report to someone other than the Board. Any Good Reason shall not be waived by Executive’s continued employment following an act or omission giving rise to such Good Reason. However, no Demotion Executive shall not be deemed to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (bbeen terminated for Good Reason pursuant to Section(s) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a5.5(a), (b), (c), (f) or (cg) above, unless Executive shall have given above without having first provided at least thirty (30) days written notice to the Company setting forth the specific acts or omissions which constitute or give rise to Good Reason and the Company fails to cure such acts or omissions within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such noticeday notice period. If Executive’s employment is terminated by Executive for Good Reason then, in addition to immediately paying Executive the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; providedFinal Compensation and Final Bonus, however, that no more than two cure periods Executive shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) abovepaid the Severance Payment. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors Any obligation of the Company to provide Executive the Severance Payment is conditioned on Executive signing, delivering the Release to the Company and not revoking the Release as provided therein within sixty (60) days after the Termination Date. The Severance Payment shall be paid in accordance with the following schedule: (i) the first $1,000,000 of the Severance Payment will be payable in four (4) equal payments, with (A) the first payment being at the Company’s next regular payroll period which is at least five (5) business days following the effective date of the Release (provided that if the 60-day time period for the Release begins in one taxable year and ends in a subsequent taxable year, the first payment shall be paid in the subsequent taxable year (for example, if Executive terminates on December 1, then the first payment shall not be paid until on or after January 1 of the next year, regardless of when the Release is returned), and (B) each of the remaining Quarterly Payments being paid on the next payroll period following the third, sixth and ninth month anniversary dates of the first payment; and (ii) the remaining amount of the Severance Payment will be payable in nine (9) equal monthly payments with the first of such payments being paid on the first payroll period coinciding with or next following one (1) month after the last Quarterly Payment, and each of the remaining eight (8) payments being paid monthly thereafter. In the event Executive terminates his employment for Good Reason, any and all incentive or other unvested grants or deferred compensation awards shall be fully and immediately vested as of the date of this Agreement, of securities of the Company (in one Termination Date without any further action by Executive or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.
Appears in 1 contract
Samples: Executive Employment Agreement (Goodman Networks Inc)
By Executive for Good Reason. The Executive, by written notice to the Company, Executive may terminate Executive’s his employment hereunder if a “for Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following circumstances without the Executive’s prior written consent: (a) a substantial and material adverse change in the nature of Executive’s title, duties or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as provided Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have has first given written notice to the Company within a period not of such alleged Good Reason and the Company has failed to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “cure such Good Reason” with reasonable particularity and, Reason within thirty (30) calendar days after of receipt of such notice, . The date of such termination must be no more than 90 days from the Company shall not have cured or eliminated date of the problem or thing occurrence giving rise to such “the Good Reason”; provided. In the event that Executive elects to terminate this Agreement for Good Reason, however, that no more than two cure periods Executive shall be provided during any twelve-month period of a breach of clauses entitled to:
(a), (bi) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors payment of the Company Accrued Obligations and the Pro Rata Bonus;
(ii) full vesting of the Long Term Award; and
(iii) a lump sum severance payment (which shall be paid upon effectiveness of the Release, as defined below) comprised of the following cash amounts:
(x) the product of two and the annual Base Pay,
(y) the value of the Incentive Awards granted or vested during the two calendar years that ended immediately before (or, if applicable, coincident with) the date of termination of employment, with the value of any shares subject to such Incentive Awards valued as of the date of this Agreementemployment termination (with the Incentive Awards granted within such two-year period valued without regard to time vesting conditions and treated as if any performance vesting conditions that remained open at the time of employment termination were attained at target level), and
(z) an amount that, after payment of securities taxes, is equal to the cost of the Company (in one or more transactions) having 50% or more of the total voting power of all two years’ COBRA coverage for Executive and his dependents under the Company’s securities than outstandinghealth, dental and vision plans, at such rates as are in effect as of the date of employment termination. Executive’s entitlement to the payments described in clauses (ii) and (iii) (collectively, the “Severance Payments”) is conditioned on his execution of the release in the form attached hereto as Exhibit A (the “Release”) within 32 days after his employment termination (and, if the 40th day after his employment termination falls in the calendar year following the year that includes his employment termination date, the amounts described in clauses (ii) and (iii) shall be paid on such 40th day even if the Release is effective before such date). In addition to the foregoing provisions, the provisions of Section 6(d) and Section 6(e) of this Agreement shall terminate upon the date of termination of employment pursuant to this Section 4(c).
Appears in 1 contract
By Executive for Good Reason. The Executive, by written notice to the Company, Executive may terminate Executive’s employment hereunder if a “this Agreement for Good Reason” existsReason and receive from the Company the payments set forth below and in Section 9 hereto. For purposes of this Agreement, “Good Reason” Reason shall mean the occurrence of any of the following circumstances without the Executive’s prior written consent: following:
(a) any breach of any of the material terms of this Agreement by the Company, continuing for more than fifteen (15) days after written notice thereof has been received by the Company from Executive, that such breach will be grounds for termination for Good Reason;
(b) without the consent of Executive, a substantial material change or any reduction in the salary, authorities, powers, functions and/or duties associated with Executive’s position, which reduction is not rescinded within five (5) business days after the Company has received written notice from Executive that such reduction will be grounds for termination for Good Reason; provided, however, that Executive shall deliver any such notice of such material reduction within thirty (30) days of his knowledge of the occurrence of such material change or reduction;
(c) without the consent of Executive, any proposed amendment or modification to the Plan, which would effect the vesting parameters or vesting schedule of any equity issued to Executive under the Plan in a manner which is adverse to the interests of the Executive, and which proposed amendment or modification is not rescinded within five (5) business days after written notice from Executive is received by the Company, that such proposed amendment or modification to the Plan will be grounds for termination for Good Reason;
(d) if there is a Change in Control of the Company and either (i) the Executive is terminated from being a director, officer or employee of, or from performing other services for, the Company or a subsidiary of the Company within two years after such Change in Control or (ii) without the consent of Executive, a material adverse change in the nature of authorities, powers, functions and/or duties associated with Executive’s titleposition or any reduction in Executive’s Base Salary or AIP targeted bonus payout percentages as set forth in Section 2(a)(ii) of this Agreement occurs, duties or responsibilities with which reduction is not rescinded by the Company that represents within five (5) business days of its occurrence, then Executive shall be entitled to receive a demotion from his titlelump sum payment equal to two (2) times the sum of (A) Executive’s then Base Salary (or in the event a reduction in Base Salary is the basis for a Termination by Executive for Good Reason, duties or responsibilities as then the Base Salary in effect immediately prior to such change reduction) and (such changeB) Executive’s AIP bonus payment, calculated at the “Target” level, for the Company fiscal year in which the termination of Executive’s employment occurred. Executive shall also be entitled to receive his Vested Benefits.
(e) without the consent of Executive, moving of the Company’s New York City corporate headquarters beyond a “Demotion”); provided, however, that in 50 mile radius of the Company’s existing headquarters location. In the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) material breach termination of this Agreement by pursuant to Section 8.2, the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” Restricted Period shall be deemed to exist with respect apply to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date provisions of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.
Appears in 1 contract
By Executive for Good Reason. The Executive, by written notice to the Company, Executive may terminate Executive’s this Agreement and his employment hereunder if a “Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean in the occurrence event of any of the following circumstances without (each of which shall constitute “Good Reason”) and the Executive’s prior LIN Companies shall have failed to have reasonably remedied such condition within thirty (30) days following written consent: notice from Executive setting forth in reasonable detail the condition giving rise to such Good Reason:
(ai) a substantial and material adverse change in either of the nature LIN Companies fails to perform its respective obligations or breaches any of its covenants or warranties under this Agreement;
(ii) the relocation of Executive’s titleprimary office to a location that is more than thirty-five (35) miles from both of (A) the Company’s headquarters in Rhode Island, unless such office is moved closer to Executive’s primary residence at the time of such relocation, and (B) Executive’s residence at the time of such relocation; or
(iii) the Board of Parent or the board of directors of the Company approves, without Executive’s consent or for reasons other than those set forth in Section 8(a), (A) a reduction in Executive’s Base Salary or the Performance Bonus Amount, or (B) the assignment to Executive of any duties inconsistent in any material respect with, or effect a material diminution of, Executive’s duties, titles, offices, or responsibilities with the Company that represents Parent or the Company, or any demotion of Executive from, or any failure to reelect or reappoint Executive to any of such positions (except in connection with the termination of Executive’s employment for disability or Cause or as a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”result of Executive's death); provided, however, that in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described foregoing clause (B) if subsequent to a Change in clauses Control (aas hereinafter defined in Section 24), (b) or (c) above, unless Executive shall have given written notice to maintains over the business of the Company within substantially the same authority and responsibility with respect thereto that he held prior to such Change in Control, the requirement that the Executive report to officers or the board of parent companies, or a period change in the title of Executive, shall not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the itself constitute “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason.”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.
Appears in 1 contract
Samples: Employment Agreement (Lin Tv Corp)
By Executive for Good Reason. The Executive, by written notice to the Company, Executive may terminate Executive’s employment hereunder if a “this Agreement for Good Reason” exists. For purposes of As used in this Agreement, “Good Reason” shall mean the occurrence of any of the following circumstances following:
(a) any breach of any of the material terms of this Agreement by the Company, continuing for more than fifteen (15) days after written notice thereof has been received by the Company from Executive, that such breach will be grounds for termination for Good Reason;
(b) without the consent of Executive, a material change or diminution of the Executive’s prior written consent: role, responsibilities or duties; including, but not limited to, no-longer being employed as the Chief Executive Officer of a company whose securities are publicly traded on a nationally recognized securities exchange;
(ac) without the consent of Executive, a substantial and material adverse change or any reduction in the nature of salary, authorities, powers, functions and/or duties associated with Executive’s titleposition, duties or responsibilities with which reduction is not rescinded within five (5) business days after the Company has received written notice from Executive that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”)reduction will be grounds for termination for Good Reason; provided, however, that in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make deliver any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written such notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days of his knowledge of the occurrence of such material change or reduction;
(d) if following a Change in Control of the Company without the consent of Executive, (i) a material change in the authorities, powers, functions and/or duties associated with Executive’s position or any reduction in Executive’s Base Salary or Annual Bonus Plan targeted bonus payout percentages occurs, (ii) Executive ceases to report directly the Board, or (iii) Executive ceases to be the final decision maker on all business related matters for the Company, which change, reduction or other circumstance is not rescinded within five (5) business days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to has received written notice from Executive that such “event will be grounds for termination for Good Reason”; provided, however, that no more than two cure periods Executive shall be provided during deliver any twelve-month period such notice within thirty (30) days of a breach his knowledge of clauses such change, reduction or other circumstance; or
(a)e) without the consent of Executive, (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors moving of the Company as of the date of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstandingNew York City corporate headquarters beyond a 50 mile radius of the Company’s existing headquarters location.
Appears in 1 contract
By Executive for Good Reason. The Executive(a) Executive may, at any time during the Employment period by written notice to Employer, terminate the Company, may terminate Executive’s employment hereunder if a Employment period under this Agreement for “Good Reason” exists(as defined below). For the purposes of this Agreementhereof, Executive shall have “Good Reason” shall mean the occurrence to terminate employment with Employer on account of any of the following circumstances events without the Executive’s prior written consent: (ai) a substantial and material adverse change any reduction in the nature Base Salary; (ii) the failure of Executive’s titleEmployer to provide employee benefits consistent with Section 4.3, duties herein; (iii) any requirement by Employer that Executive report to anyone other than the Board; or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of iv) a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods the circumstances set forth in this Section 5.3 shall not be Good Reason if within 30 days of notice by Executive to Employer, Employer cures such circumstances. The effective date of such termination of Executive from Employer shall be provided during any twelve-month period of a breach of clauses the date that is thirty (a), 30) days following the date on which such notice is given.
(b) or (c) above. Upon such terminationFor purposes of this Section 5.3, the Company shall pay to Executive the amount set forth in Section 4.6(c). a “Change in Control” shall mean the acquisition, by be deemed to have taken place if any person or entity other than the Company and/or any officers or directors “Person) (as such term is defined in Section 3(a)(9) of the Company Securities Exchange Act of 1934 (the “Exchange Act”) and as used in Sections 13(d)(3) and 14(d)(2) of the date of this AgreementExchange Act) becomes a “beneficial owner” (as defined in Rule 13-3 under the Exchange Act), directly or indirectly, of securities of the Company (in one or more transactions) having Corporation representing 50% or more of the total combined voting power of all Employer’s then outstanding securities eligible to vote for the Companyelection of the Board (the “voting Securities”);’ provided, however, that the event described in this paragraph (b) shall not be deemed to be a change in Control by virtue of any of the following acquisitions: (i) any Employer or any subsidiary of employer in which Employer owns more than 50% of the combined voting power of such entity (a “Subsidiary”), (ii) by any employee benefit plan (or related trust) sponsored or maintained by Employer or any Subsidiary, (iii) by any underwriter temporarily holding Employer’s securities than outstandingVoting Securities pursuant to an offering of such Voting Securities, or (vi) pursuant to any acquisition by Executive or any group or persons including Executive (or any entity controlled by Executive or any group of persons including Executive).
Appears in 1 contract
By Executive for Good Reason. The If any of the events described below occurs during the Employment Term, Executive may terminate Executive, 's employment hereunder for Good Reason by written notice to the CompanyCompany identifying the event or omission constituting Good Reason not more than one (1) month following the occurrence of such event and, may in the case of subclauses (ii), (iii), or (iv) below, a failure by the Company to cure such act or omission within thirty (30) days after receipt of such written notice. In the event that Executive elects to terminate employment pursuant to this Section 6(d), the Employment Term and Executive’s 's employment hereunder if will be terminated effective as of the later of thirty-one (31) days after the Company's receipt of Executive's notice of termination or thirty-one (31) days after the event, and Executive's termination for Good Reason pursuant to this Section 6(d) shall be treated for all purposes as a “Good Reason” existstermination without Cause pursuant to Section 6(c) and the provisions of Section 6(c) shall apply to such termination. For purposes of this Agreement, “Good Reason” shall mean the The occurrence of any of the following circumstances events without Executive's consent shall permit Executive to terminate Executive's employment for "Good Reason" pursuant to this Section 6(d):
(i) A "Change in Control" (as defined in Appendix A hereto) occurs;
(ii) The failure by the Company to observe or comply in any material respect with any of the material provisions of this Agreement;
(iii) A material diminution in Executive's duties;
(iv) The assignment to Executive of duties that are materially inconsistent with Executive’s prior written consent: duties or that materially impair Executive’s ability to function as the Vice President and Chief Operating Officer of the Company;
(v) The relocation of Executive’s primary office from a location that is more than twenty five (25) miles from both (a) a substantial and material adverse change in the nature of Executive’s title, duties or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; executive offices at the time of relocation and (b) material breach Executive’s primary residence at the time of such relocation; or
(vi) The Company providing Executive with a notice of non-renewal of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, under Section 1. Except as specifically set forth in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such noticeSection 9 hereof, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay further obligations to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date of under this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.
Appears in 1 contract
Samples: Employment Agreement (Nexmed Inc)
By Executive for Good Reason. The Executive, by written notice to the Company, Employer may terminate Executive’s employment hereunder if and this Agreement at any time without Cause, and such termination shall not be deemed a “breach by Employer of any term of this Agreement or any other duty or obligation, expressed or implied, which Employer may owe to Executive pursuant to any principle or provision of law. Subject to the remaining terms of this Section 9(f), Executive may terminate his employment and this Agreement at any time for Good Reason, and such termination shall not be deemed a breach by Executive of any term of this Agreement or any other duty or obligation, expressed or implied, which Executive may owe to Employer pursuant to any principle or provision of law. In the event of termination by Employer other than for Cause, or by Executive for Good Reason, in either case during the Term, this Agreement and Executive’s employment shall terminate as of the date specified in the termination notice (subject to the limitations provided in this section 9(f)), and Employer shall be obligated to provide Executive with only the Accrued Benefits and “Severance Benefits,” existsdefined as 12 months of Executive’s then-current Base Salary in the form of salary continuation payable according to Employer’s then-current payroll schedule, commencing on the next payroll date following the 65th day of such a termination and each payment of which shall be considered a separate “payment” for purposes of Section 409A of the Internal Revenue Code and the regulations thereunder (“Section 409A”). Notwithstanding the foregoing, no portion of the Severance Benefits shall be payable unless, within 65 days following Executive’s termination of employment, Executive signs a severance agreement and general release in substantially the form attached hereto as Exhibit A, with such changes therein or additions thereto as needed under then applicable law to give effect to its intent and purposes and ensure its enforceability. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following circumstances events without the Executive’s prior express written consent: (a) a substantial and material adverse change in the nature of Executive’s title, duties or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership consent of the Company. Notwithstanding the foregoingExecutive, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses provided that (a), (bi) or (c) above, unless Executive shall have given gives Employer written notice to the Company of such event within a period not to exceed ten (10) calendar 30 days of the initial existence of such event, (ii) such event is not corrected in all material respects by Employer within 90 days following written notification by Executive to Employer of the occurrenceoccurrence of such event, specifying and (iii) Executive terminates his employment with Employer within five days following such 90-day remedy period: Employer (W) assigns to Executive duties (including titles and reporting relationships) inconsistent in any material respect with the “Good Reason” with reasonable particularity andExecutive’s duties or responsibilities as contemplated by this Agreement; (X) materially breaches this Agreement or any other agreement between Employer and Executive; (Y) requires Executive to relocate to any jurisdiction other than Omaha, within thirty Nebraska (30or Employer’s principal place of business, if other than Omaha, Nebraska); or (Z) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, requires that no Executive’s one-way commute increase by more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a)50 miles from Solana Beach, (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstandingCalifornia.
Appears in 1 contract
By Executive for Good Reason. The 1. Executive, 's employment may be terminated by Executive by written notice to the Company, may terminate of Executive’s employment hereunder if a “Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean 's resignation delivered within sixty (60) days after the occurrence of any of the following circumstances without the events, each of which shall constitute "Good Reason" for resignation and together shall be "Good Reason Events":
a. a material reduction in Executive’s prior written consent: 's Base Salary (a) unless such reduction is part of an across-the-board reduction affecting all Company executives with a substantial and material adverse change in the nature of Executive’s comparable role or title, duties or responsibilities with ); and
b. a requirement by the Company to relocate Executive to a location that represents is greater than twenty-five (25) miles from the location of the office in which Executive performs Executive's duties hereunder at the time of such relocation; and
c. in connection with a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of a “Change in Control” , a failure by the successor person or entity, or the Board, to honor this Agreement or to present Executive with an employment agreement containing provisions substantially similar to this Agreement or otherwise satisfactory to Executive and which is executed by Executive.
2. Executive shall give the Company written notice of Executive's intention to resign for Good Reason within sixty (60) days after the occurrence of one of the Good Reason Events. The notice must state with reasonable specificity the Good Reason Event. Thereafter, the Company shall have sixty (60) days (the "Cure Period") to rescind the Good Reason Event(s). If the Company rescinds the Good Reason Event(s) within the Cure Period, Executive no longer shall have the right to resign for Good Reason. If the Company fails to rescind the Good Reason Event(s) before the expiration of the Cure Period, then Executive may resign for Good Reason as defined below), no Demotion long as the resignation for Good Reason occurs within thirty (30) days following the expiration of the Cure Period; otherwise the right to resign on the basis of such Good Reason Event(s) shall be deemed to have occurred been waived. If Executive resigns for Good Reason as long as defined in this Section VI.F., Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) material breach of be entitled to receive:
a. all Base Salary and benefits due to Executive under this Agreement by through the Company; Date of Termination (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, payable within thirty (30) calendar days after of the Date of Termination, with the date of such notice, payment determined by the Company shall not have cured in its sole discretion) and a pro-rata portion of any Bonus or eliminated other compensation that Executive has earned as of the problem or thing giving rise Date of Termination, which Bonus amount will be determined after the end of the fiscal year for which the Bonus was in place and paid in accordance with the terms of the Company's Bonus plan;
b. an amount equal to such “Good Reason”Executive's Base Salary for a total of one (1) year following the Date of Termination upon Executive's execution of a full release of claims in favor of the Company; provided, however, that no more than two cure periods shall such release must be provided during executed and become effective and any twelve-month revocation period must expire within sixty (60) days of the Date of Termination in order for Executive to receive the benefits described herein; and
c. group medical benefits for one (1) year after the Date of Termination upon Executive's execution of a breach full release of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth claims in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors favor of the Company as described in Section VI.F.2.b. The costs of the date Company's portion of any premiums due under this Agreement, Section VI.F.2.c. shall be included in Executive's gross income to the extent the provision of securities such benefits is deemed to be discriminatory under Section 105(h) of the Company Code.
3. The amounts in Section VI.F.2.b. and VI.F.2.c. above shall be paid to Executive periodically at the Company's regular payroll dates commencing within sixty (60) days following the Date of Termination (the commencement date which will be determined by the Company) provided that Executive has executed the release as described therein.
4. All outstanding stock options, restricted stock, restricted stock units and any other unvested equity incentives shall be treated solely in one or more transactions) having 50% or more accordance with the terms of the total voting power award agreements to which the Company and Executive are parties on the Date of Termination. In addition, all amounts contributed by the Company’s securities than outstandingCompany to the CAP for the benefit of Executive shall vest and thereafter be paid out in accordance with the terms of the CAP as in effect on the Date of Termination.
Appears in 1 contract
By Executive for Good Reason. Executive may terminate, without ---------------------------- liability, the Employment Term for Good Reason (as defined below) solely pursuant to this Section 4.4. In the event Executive intends to terminate ----------- Executive's employment for Good Reason, Executive shall give the Company notice thereof, such notice to state in reasonable detail the particular act(s) or failure(s) that constitute the grounds on which the proposed termination for Good Reason is based. The Company shall have ten (10) days after the date that such notice has been given to the Company to cure such act(s) or failure(s), to the extent such act(s) or failure(s) are capable of being cured. If the Company fails to cure such act(s) or failure(s), or such cure is not possible, Executive may thereupon terminate Executive, by written 's employment for Good Reason immediately upon notice to the Company. In such event, may terminate the Company shall: (i) pay Executive the compensation to which Executive is entitled pursuant to Section 3.1(a) (including any ------------- accrued vacation) through the end of the day on which Executive terminates Executive’s employment 's employment; (ii) reimburse Executive for any expenses properly incurred by Executive pursuant to Section 3.3 through the end of the day on ------------ which Executive terminates Executive's employment; and (iii) pay Executive the severance payment as set forth in Section 5. Thereafter the Company's --------- obligations hereunder if a “shall terminate. Good Reason” exists. For purposes of this Agreement, “Good Reason” Reason shall mean the occurrence of exist under any of the following circumstances without events (unless Executive has consented to the Executive’s prior written consent: occurrence of such event):
(a) There is an assignment to Executive of any duties materially inconsistent with or which constitute a substantial and material adverse change in Executive's position, duties, responsibilities, or status with the nature of Company, or a material change in Executive’s 's reporting responsibilities, title, duties or responsibilities offices, or removal of Executive from or failure to re-elect Executive to any of such positions, except in connection with the Company that represents a demotion from his titletermination of the Employment Term with Cause, duties or responsibilities as in effect immediately prior due to such change (such changedisability, a “Demotion”); provided, however, that in the event of a “Change in Control” (early or normal retirement as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as by the Company’s head operational officer's pension plan, notwithstanding title; death, or termination of the Employment Term by Executive other than for Good Reason.
(b) The Company acts in any way that would adversely affect Executive's participation in or materially reduce Executive's benefit under any benefit plan of the Company in which Executive is participating or would deprive Executive of any material breach fringe benefit enjoyed by Executive, except those changes generally affecting similarly situated senior executive officers of this Agreement by the Company; .
(c) a failure by The Company materially breaches the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date terms of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.
Appears in 1 contract
By Executive for Good Reason. The ExecutiveAt any time, by written notice to the Companyand without prior notice, Executive may terminate Executive’s employment hereunder if a “the Period of Employment for Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following circumstances without the Executive’s prior written consent: (a) a substantial and material adverse change in the nature of Executive’s title, duties or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of a “Change in Control” Reason (as defined below). The Company shall pay Executive all compensation due and owing through the last day actually worked, no Demotion and Executive shall be deemed entitled to have occurred as long as Severance in accordance with Section 9 below, subject to the conditions therein. Thereafter, all obligations of the Company and Executive under this Agreement shall remain as terminate, except for those which expressly survive termination of this Agreement. Neither the Company’s head operational officer's giving of notice of termination in accordance with Section 2.b nor its termination of the Period of Employment for Cause shall constitute "Good Reason" for Executive to terminate the Period of Employment. "Good Reason" only shall exist if the Company undertakes any of the following without Executive's prior consent: (i) The assignment to Executive of any duties or responsibilities which result in any material diminution or material adverse change of Executive's position, notwithstanding titlestatus or circumstances of employment; a change in Executive's titles or offices that results in any material diminution or material adverse change of Executive's position, status or circumstances of employment; or any removal of Executive from or any failure to re-elect Executive to any of such positions, except in connection with the termination of his employment for Cause, retirement, or any other voluntary termination of employment by Executive other than a termination of employment by Executive for Good Reason; (bii) material breach of this Agreement A reduction by the CompanyCompany in Executive's base salary by greater than ten (10) percent; (ciii) a Any failure by the Company to make continue in effect any payment benefit plan or arrangement, including incentive plans or plans to Executive when due, unless the payment is not material and is being contested by receive securities of the Company, in good faith; or (d) a liquidation, bankruptcy or receivership which Executive is participating as of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed date hereof (hereinafter referred to exist with respect to the Company’s acts described in clauses (aas "Benefit Plans"), (b) or (c) above, unless Executive shall have given written notice to the taking of any action by the Company within a period not to exceed ten (10) calendar days which would materially adversely affect Executive's participation in or reduce Executive's benefits under the Benefit Plans or deprive Executive of any fringe benefit enjoyed by Executive as in effect on the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”date hereof; provided, however, that no termination of employment by Executive for Good Reason shall be deemed to occur based upon this subsection 8.d (iii) if the Company offers a range of benefit plans and programs which, taken as a whole, are comparable to the Benefit Plans offered Executive before the action; (iv) A relocation of the Executive, or the Company's principal offices if Executive's principal office is at such offices, to a location more than two cure periods shall be provided during any twelve-month period of a breach of clauses fifty (a), (b50) or (c) above. Upon such termination, miles from the Company shall pay to location at which Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company was performing his duties as of the date hereof, except for required travel by Executive on the Company's business to an extent substantially consistent with Executive's business travel obligations as of the date hereof; (v) Any material breach by the Company of any provision of this Agreement, ; (vi) Any failure by the Company to obtain the assumption of securities this Agreement by any successor or assign of the Company; (vii) Any directive to Executive to perform any act which would expose him to personal legal liability or which, viewed objectively, is likely to constitute an unethical act; or (viii) Any conduct directed to Executive by Company (in one or more transactions) having 50% or more any condition under which Executive works which constitutes constructive discharge under the principles of the total voting power of all the Company’s securities than outstandinggoverning law.
Appears in 1 contract
Samples: Executive Separation and Employment Agreement (Oxis International Inc)
By Executive for Good Reason. The Executive, by written notice to the Company, Executive may terminate Executive’s employment hereunder if a for “Good Reason” exists. For purposes if, without the consent of the Executive, any of the following events occur: (i) a change to the Executive’s reporting relationship such that he is no longer reporting to the Board or to a Committee of the Board as the Chief Executive Officer, or, in the case of a Change in Control, he is no longer the most senior officer of the entity with authority and responsibility for the Company’s business; (ii) the Executive’s annual base salary or target bonus opportunity (including any prior increases to such salary or bonus opportunity) is materially reduced, other than due to an across-the-board reduction of not more than twenty (20) percent attributable to economic conditions and applicable to all executive employees of the Company; (iii) a material diminution in Executive’s status, duties or responsibilities, making his position inconsistent with his duties as Chief Executive Officer; (iv) prior to an initial public offering, his removal from, or failure to be nominated for or elected to membership on, the Board, other than due to investigation of possible wrongdoing (with reinstatement at the conclusion of such investigation if grounds for dismissal are not found) or prior notice of termination of employment; (v) failure of the Company to issue the Options contemplated under Section 3.6.1 or 3.6.2; (vi) a relocation of Executive’s principal worksite by more than fifty (50) miles, unless the Company has proffered an appropriate executive relocation package to defray the Executive’s expenses and associated costs of such relocation; or (vii) the Company’s material breach of this Agreement, “including the provisions of Sections 11, 12 or 17 of this Agreement. Executive agrees to provide the Company with written notice of the event constituting Good Reason within ninety (90) days of becoming aware of the actions or inactions of the Company giving rise to such Good Reason” . Such termination for Good Reason shall mean the occurrence of any of the following circumstances without the Executive’s prior written consent: (a) a substantial and material adverse change in the nature of Executive’s title, duties or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within become effective thirty (30) calendar days after such following Executive’s written notice, provided the Company shall has not have cured the actions or eliminated the problem or thing inactions giving rise to such “Executive’s notice of termination for Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.
Appears in 1 contract
Samples: Executive Employment Agreement (Quintiles Transnational Holdings Inc.)
By Executive for Good Reason. The Executive, by Executive may terminate the term of his employment for “Good Reason” upon written notice to the Company, may terminate Executive’s employment hereunder if a “Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean include the occurrence following events unless otherwise consented to by Executive:
(i) The assignment to Executive of any of the following circumstances without the duties materially inconsistent with Executive’s position, duties, responsibilities and status within the Company;
(ii) A material reduction in Executive’s reporting responsibilities not pertaining to Executive’s failure to properly perform the material duties of his position with the Company, which failure has been noted in Executive’s personnel file and communicated to Executive in writing prior written consent: to such reduction in reporting responsibilities;
(aiii) a substantial and material adverse change A reduction in the nature Base Salary of Executive not pertaining to Executive’s titlefailure to properly perform the material duties of his position with the Company, duties or responsibilities with which failure has been noted in Executive’s personnel file and communicated to Executive in writing prior to such reduction in Base Salary;
(iv) A requirement by the Company that represents a demotion from his titleExecutive’s work location be moved more than fifty (50) miles of the Company’s principal place of business in Orlando, duties or responsibilities as Florida;
(v) The Company’s material breach of this Agreement;
(vi) A "change in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of a “Change in Control” control" (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as ) of the Company occurs;
(vii) The Company’s head operational officer, notwithstanding titlefailure to obtain an agreement from any successor to the business of the Company by which the successor assumes and agrees to perform this Agreement; or
(bviii) material breach A purchaser of the Company assigns this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; another person or (d) a liquidation, bankruptcy or receivership of the Companyentity without Executive's written consent. Notwithstanding the foregoing, no “Good Reason” Executive shall not be deemed to exist with respect to the Company’s acts described in clauses have terminated his employment for Good Reason under clause (ai), (bii), (iii), (iv) or (c) abovev), unless Executive shall have given provided reasonable written notice to the Company within a period not setting forth the reasons for Executive’s intention to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “resign for Good Reason” with reasonable particularity and, and the Company failed within thirty (30) calendar days after such notice, to cure the Company shall not have cured event or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount deficiency set forth in the written notice. For purposes of this Section 4.6(c5.5, a “change in control” means that an act specified in Sections 5.5(i) through 5.5(v) of the Agreement occurs and, within two (2) years of that act, one of the following events also occurs: (A) the closing of any sale by Fxxxx or CNL Restaurant Capital Corp. (f/k/a CNL Franchise Network Corp.). “Change in Control” shall mean the acquisition, by any a Delaware corporation ("CRCC"), of all or substantially all of its assets to an acquiring person or entity other than the Company and/or any officers or directors that is not an affiliate of the Company as Company, Fxxxx, CRCC, or CNL Restaurant Properties, Inc. (f/k/a CNL American Properties Fund, Inc.), a Maryland corporation (“CNLRP”); (B) the closing of any sale by CNLRP of all or a majority of the date shares of this Agreementstock of CRCC that it owns to an acquiring person or entity that is not an affiliate of the Company, Fxxxx, CRCC, CNLRP or Jxxxx X. Xxxxxx, Xx. (collectively, the “CNLRP Group”); or (C) the closing of any sale by the holders of common stock of CNLRP of an amount of common stock that equals or exceeds a majority of the shares of common stock of CNLRP immediately prior to such closing to a person or entity that is not an affiliate of the CNLRP Group such that the holders of such common stock immediately prior to the closing are not the holders of a majority of the ordinary voting securities of CNLRP after the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstandingclosing.
Appears in 1 contract
By Executive for Good Reason. The Executive, by written notice to the Company, may terminate Executive’s employment hereunder if a “Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following circumstances without the Executive’s prior written consent: (a) a substantial and material adverse change in the nature of Executive’s title, duties or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the Company’s head operational financial officer, notwithstanding title; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.
Appears in 1 contract
By Executive for Good Reason. The Executive, by written notice to the Company, may terminate Executive’s employment hereunder if a “Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following circumstances without the Executive’s prior written consent: (a) a substantial and material adverse change in the nature of Executive’s title, duties or and/or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”)) or the assignment to Executive of any duties materially inconsistent with Executive’s position, authority, duties and/or responsibilities as contemplated by Section 1.1 hereof; provided, however, that in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the Company’s head operational executive officer, notwithstanding titletitle and provided there is no decrease in Executive’s compensation and benefits; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. For purposes of this Agreement, “Change in Control of the Company” shall be deemed to have occurred if any “person” (as such term is used in Sections 13 (d) and 14 (d) of the Exchange Act and the Regulations promulgated there under), other than the Company and/or any officers or directors of the Company as of the date of this Agreement, acquires, directly or indirectly, 50% or more of the Full Voting Power of the Company. “Full Voting Power” shall mean the right to vote in the election of one or more directors through proxy or by the beneficial ownership of the common stock or other securities then entitled to vote in the election of one or more directors. For purposes of calculating the percentage ownership of Full Voting Power of a person, all warrants, option or rights held by all persons with respect to the Company shall be deemed to have been exercised and all convertible or exchangeable securities shall be deemed to have been converted or exchanged, as the case may be disregarding for such purposes any restrictions on conversion, voting (such as proxies), exchange or exercise, in each case for the maximum number of shares of the common stock or other securities entitled to then vote in the election of one or more directors Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) (c) or (ce) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the Executive’s knowledge of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) or (e above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c4.7(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.
Appears in 1 contract
By Executive for Good Reason. The Executive, by written notice to the Company, may terminate Executive’s employment hereunder if a “Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following circumstances without the Executive’s prior written consent: (a) a substantial and material adverse change in the nature of Executive’s title, duties or and/or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company; (e) the Company’s relocation of the Company’s headquarters to a location more than 35 miles from its current location; (f) refusal of any successor to assume this Agreement; or (g) failure of the Company to maintain directors’ and officers’ insurance coverage of substantially the same amount as it provided as of the Effective Date. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the Executive’s knowledge of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) above. Upon such terminationtermination by the Company or by the Executive, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstandinghereof.
Appears in 1 contract
By Executive for Good Reason. The ExecutiveAs used herein, by written notice to the Company, may terminate Executive’s employment hereunder if a “term "Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean " means the occurrence of any of the following circumstances following, without the Executive’s prior written consent: consent of the Executive:
(ai) assignment to the Executive of duties materially inconsistent with the Executive's positions as described in Section 2.1 hereof, or any significant diminution in the Executive's duties or responsibilities, other than in connection with the termination of the Executive's employment for Cause, Disability or as a substantial and material adverse result of the Executive's death or by the Executive other than for Good Reason;
(ii) the change in the nature location of the Company's principal executive offices or of the Executive’s title's principal place of employment to a location outside the greater Fort Lauderdale-Miami, duties or responsibilities with Florida metropolitan area/more than fifty (50) fifty miles from the Company that represents a demotion from his titlecurrent location. The Executive will have the option to transfer to the new location, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); provided, however, that in the event of same or equivalent position at a “Change in Control” (as defined below), no Demotion shall be deemed reasonable expense to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; .
(biii) any material breach of this Agreement by the Company; Company which is continuing;
(civ) a failure by Change in Control, provided that a Change of Control shall only constitute Good Reason if the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or terminates his employment within six (d6) months following a liquidation, bankruptcy or receivership Change of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”Control; provided, however, that no more than two cure periods the Executive shall not be provided during any twelve-month period of a breach of deemed to have Good Reason pursuant to clauses (a), (bi) or (ciii) above. Upon such termination, above unless the Executive gives the Company written notice that the specified conduct or event has occurred and the Company fails to cure such conduct or event within thirty (30) days of the receipt of such notice. A "Change of Control" shall pay be deemed to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisitionhave occurred when any person, by any person or entity other than the Company and/or any officers Executive or directors of the Company as of his respective affiliates, associates, or estate, becomes, after the date of this Agreementgrant, the beneficial owner, directly or indirectly, of securities of the Company (in one or more transactions) having representing 50% or more of the total combined voting power of all the Company’s securities than outstanding.'s then-outstanding securities; 000 Xxx Xxxxx Blvd. Suite 120 Deerfield Beach, FL 33442 Ph: (000)000-0000 | Fax: (000)000-0000 | Email: xxxx@xxxxxxxxxxxxxxxxxxxx.xxx xxx.xxxxxxxxxxxxxxxxxxxx.xxx
Appears in 1 contract
Samples: Executive Employment Agreement (Capstone Companies, Inc.)
By Executive for Good Reason. The Executive, by written notice Anything herein to the Companycontrary notwithstanding, may terminate Executive’s employment hereunder if the Company (i) demotes Executive to a “Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following circumstances without the Executive’s prior written consent: lesser position than provided in Section 1; (aii) causes a substantial and material adverse change in the nature or scope of Executive’s titlethe authorities, duties powers, functions, duties, or responsibilities attached to Executive's position as provided in Section 1; (iii) decreases Executive's salary below the level provided for by the terms of Section 2 (taking into account increases made from time to time in accordance with Section 2) or changes the formula for determining the Income from Operations Bonus in a manner that would be adverse to Executive; (iv) materially reduces Executive's benefits under any executive compensation or employee benefit plan, program, or arrangement of the Company (other than a change made prior to a Change of Control that represents a demotion affects all of the Company's senior executive officers alike) from his title, duties or responsibilities as the level in effect immediately prior to such change upon Executive's commencement of participation on or after the date hereof; (such change, a “Demotion”); provided, however, that in the event of a “Change in Control” (as defined below), no Demotion shall be deemed to have occurred as long as Executive shall remain as v) moves Executive's office from the Company’s head operational officer, notwithstanding title's principal executive office; (bvi) fails to obtain the assumption in writing of the obligation to perform this Agreement by any successor to all or substantially all of the assets of the Company within 60 days after a merger, consolidation, sale, or similar transaction; or (vii) commits any other material breach of this Agreement by the Company; contract, then, such action (cor inaction) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, unless consented to in good faith; or (d) a liquidationwriting by Executive, bankruptcy or receivership shall be basis for termination of the Companyemployment by Executive for Good Reason. Notwithstanding the foregoingpreceding sentence, no “Good Reason” shall be deemed to exist with respect to within 60 days of learning of the Company’s acts action (or inaction) described in clauses (a)herein as the basis for a constructive termination of employment, (b) or (c) above, unless Executive shall have given (unless he gives written notice to consent thereto) advise the Company in writing, that the action (or inaction) constitutes a basis for termination of his employment pursuant to this Section 12(e) in which event the Company shall have 60 days in which to correct such action or inaction and if the Company does so correct such action (or inaction) Executive shall not be entitled to terminate his employment under this Section 12(e) as a result of such action (or inaction). If the Company fails to correct such action or inaction within a period not to exceed ten (10) calendar such 60-day period, Executive may terminate his employment for Good Reason within 30 days of the initial existence expiration of such period. If Executive's employment under this Agreement is terminated by the occurrence, specifying the “Executive for Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company shall not have cured or eliminated provide to the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth payments, benefits, and consulting opportunity described in Section 4.6(c12(d). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.f)
Appears in 1 contract
Samples: Employment Agreement (Seitel Inc)
By Executive for Good Reason. The ExecutiveDuring the Term, by written notice to the Company, Executive may terminate Executive’s his employment hereunder if a “at any time for Good Reason” exists. For purposes of this Agreement, the following shall constitute “Good Reason” shall mean the occurrence of any of the following circumstances without the for termination by Executive’s prior written consent: :
(a) a substantial and any material adverse change diminution in the nature of Executive’s titleauthority, duties or responsibilities with the Company Company;
(b) the assignment to Executive of any duties or responsibilities that represents a demotion from his title, are materially inconsistent with Executive’s existing duties or responsibilities as President and CEO;
(c) any reduction by the Company in effect immediately prior Executive’s Base Salary, Management Bonus or Retention Bonus;
(d) a Change in Control;
(e) unless otherwise consented to such change in writing by Executive, the imposition of any requirement that Executive relocate to, or perform any of his duties hereunder at, any location that is more than fifty (such change50) miles from his current primary residence located at 0000 Xxxxxxxxx Xxxxx, a “Demotion”)Xxxxxx, Xxxxx 00000; provided, however, that reasonable and customary business travel, and the expectation that Executive will perform certain functions in other offices of the Company in the event ordinary course of business consistent with past practices, shall not be deemed a “Change in Control” required relocation under this Section 5.5(e);
(as defined below)f) the Company’s failure to obtain the express assumption of this Agreement by any successor to the Company;
(g) any material breach by the Company of any agreement (including this Agreement) between it and Executive; or
(h) any requirement that Executive report to someone other than the Board. Any Good Reason shall not be waived by Executive’s continued employment following an act or omission giving rise to such Good Reason. However, no Demotion Executive shall not be deemed to have occurred as long as Executive shall remain as the Company’s head operational officer, notwithstanding title; (bbeen terminated for Good Reason pursuant to Section(s) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a5.5(a), (b), (c), (f) or (cg) above, unless Executive shall have given above without having first provided at least thirty (30) days written notice to the Company setting forth the specific acts or omissions which constitute or give rise to Good Reason and the Company fails to cure such acts or omissions within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such noticeday notice period. If Executive’s employment is terminated by Executive for Good Reason then, in addition to immediately paying Executive the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; providedFinal Compensation and Final Bonus, however, that no more than two cure periods Executive shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) abovepaid the Severance Payment. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors Any obligation of the Company to provide Executive the Severance Payment is conditioned on Executive signing, delivering the Release to the Company and not revoking the Release as provided therein within sixty (60) days after the Termination Date. The Severance Payment shall be paid in accordance with the following schedule: (i) the first $1,000,000 of the Severance Payment will be payable in four (4) equal payments, with (A) the first payment being at the Company’s next regular payroll period which is at least five (5) business days following the effective date of the Release (provided that if the 60-day time period for the Release begins in one taxable year and ends in a subsequent taxable year, the first payment shall be paid in the subsequent taxable year (for example, if Executive terminates on December 1, then the first payment shall not be paid until on or after January 1 of the next year, regardless of when the Release is returned), and (B) each of the remaining Quarterly Payments being paid on the next payroll period following the third, sixth and ninth month anniversary dates of the first payment; and (ii) the remaining amount of the Severance Payment will be payable in nine (9) equal monthly payments with the first of such payments being paid on the first payroll period coinciding with or next following one (1) month after the last Quarterly Payment, and each of the remaining eight (8) payments being paid monthly thereafter. In the event Executive terminates his employment for Good Reason, any and all incentive or other unvested grants or deferred compensation awards shall be fully and immediately vested as of the date of this Agreement, of securities of the Company (in one Termination Date without any further action by Executive or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.
Appears in 1 contract
Samples: Executive Employment Agreement (Goodman Networks Inc)
