Certain Terminations Following a Change in Control. If the Executive’s employment with the Company ceases within eighteen months following a Change in Control (as defined below) as a result of a termination by the Company without Cause (not including, solely for purposes of this Section 6, a termination as a result of the Executive’s death or Disability) or a resignation by the Executive for Good Reason, then: 6.1.1. the Restricted Period will be extended by eighteen months; 6.1.2. subject to Section 8 and in lieu of the payments and benefits provided for in Section 4.2, (a) the Company will pay to the Executive a cash amount equal to pro- rata portion of the target Annual Bonus for the calendar year in which the termination occurs, determined by multiplying the target Annual Bonus by a fraction, the numerator of which is the number of days during the year that transpired before the date of the Executive’s termination of employment and the denominator of which is 365, (b) the Company will pay to the Executive a cash amount equal to the sum of (i) 2.5 times the Executive’s Base Salary as in effect on such date, and (ii) 2.5 times the target Annual Bonus amount applicable for the calendar year in which the termination occurs, (c) to the extent not previously paid, the Company will pay to the Executive any Annual Bonus payable with respect to a calendar year that ended prior to that termination, (d) all outstanding stock options then held by Executive (including the Stock Option) will then become fully vested and immediately exercisable and will remain exercisable for the shorter of (i) the 30-month period immediately following the Executive’s cessation of employment, or (ii) the period remaining until the scheduled expiration of the option (determined without regard to the Executive’s cessation of employment), and (d) the Company will pay to the Executive the additional amount, if any, payable pursuant to Section 7 below.
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Certain Terminations Following a Change in Control. If the Executive’s employment with the Company ceases within eighteen months following a Change in Control (as defined below) as a result of a termination is terminated by the Company without Cause (not including, solely for purposes of this Section 6, a termination as a result of the Executive’s death or Disability) or a resignation by the Executive for Good Reason, then:
6.1.1. in either case within the Restricted Period will be extended by eighteen months;
6.1.2. subject to Section 8 and two (2) year period following the occurrence of a change in lieu the ownership or effective control of the payments and benefits provided for Company, or a change in Section 4.2, (a) the Company will pay to the Executive ownership of a cash amount equal to pro- rata substantial portion of the target Annual Bonus for assets of the calendar year Company (in which each case as such term is defined in Section 409A(a)(2)(A)(v) of U.S. Internal Revenue Code of 1986, as amended (the termination occurs“Code”) and U.S. Treasury Regulation Section 1.409A-3(i)(5)), determined by multiplying the target Annual Bonus by or any successor provisions thereto (a fraction“Change in Control”), the numerator of which is the number of days during the year that transpired before the date of then this Section 5(b) shall govern, and Section 5(a) shall have no effect. If the Executive’s termination of employment and the denominator of which is 365, (b) terminated by the Company will pay to without Cause or by the Executive for Good Reason within the two (2) year period following a cash amount equal Change in Control, the Executive will, subject to the sum of this Section 5(b), be entitled to: (i) 2.5 times the Executive’s accrued but unused vacation and Base Salary as in effect on such datethrough the Date of Termination (to the extent not theretofore paid), and (ii) 2.5 a lump sum payment on the 45th day following such Date of Termination equal to (x) one and a half times (1.5x) Base Salary at the target Annual Bonus amount applicable rate in effect as of the Date of Termination, plus (y) the Target Bonus. In addition, for the calendar year eighteen month period following such Date of Termination, the Company shall continue to provide medical benefits to the Executive which are substantially similar to those provided generally to executive officers of the Company (including any required contribution by such executive officers) pursuant to such medical plan as may be in which effect from time to time as if the Executive’s employment had not been terminated (the “Group Benefits”) (it being understood that the Company may provide such coverage by paying the Executive’s COBRA premiums, less any contribution required by the Executive); provided, however, that if the Executive is eligible to receive comparable medical or other welfare benefits under another employer provided plan, the corresponding Group Benefits described herein shall be terminated. The Executive shall promptly notify the Company of any changes in his medical benefits coverage. The payments and benefits provided herein are subject to and conditioned on the Release and the Executive’s compliance with the Restrictive Covenants provided in Sections 7 and 8 hereof. Notwithstanding the foregoing, in the event that Executive’s employment is terminated, such termination occursis governed by this Section 5(b), (cand the 45th day following the Date of Termination is on or before December 31, 2008, then the amounts payable under Section 5(b)(ii) shall not be paid on the 45th day following the Date of Termination as provided above, and instead the amount payable under Section 5(b)(ii)(x) hereof shall, to the extent otherwise payable in accordance with this Section 5(b), be payable in accordance with the Company’s normal payroll practices until the first payroll date occurring in January 2009, at which time any amount due pursuant to Section 5(b)(ii)(x) and (y) which shall not previously paidhave been paid as of such date shall be paid in lump sum. Except as provided in this Section 5(b) and except for any vested benefits under any tax qualified pension plans of the Company, and continuation of health insurance benefits on the terms and to the extent required by COBRA, the Company will pay to the Executive any Annual Bonus payable with respect to a calendar year that ended prior to that termination, (d) all outstanding stock options then held by Executive (including the Stock Option) will then become fully vested and immediately exercisable and will remain exercisable for the shorter of (i) the 30-month period immediately following the Executive’s cessation of employment, or (ii) the period remaining until the scheduled expiration of the option (determined without regard to the Executive’s cessation of employment), and (d) the Company will pay to the Executive the shall have no additional amount, if any, payable pursuant to Section 7 belowobligations under this Agreement.
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Certain Terminations Following a Change in Control. If Should any of the Executive’s employment with following events occur within the Company ceases within eighteen twelve (12) months following a Change in Control Control: (as defined belowi) as a result of a termination by the Company without Cause (not including, solely for purposes of this Section 6, a termination as a result of the Executive’s death or Disability) or a resignation by the Executive voluntary termination of his employment for Good Reason, then:
6.1.1. (ii) the Restricted Period will be extended termination of Executive’s employment without Cause by eighteen months;
6.1.2. subject to Section 8 and Macromedia or any successor or (iii) the termination of Executive’s employment by reason of his death or Disability, then in lieu of the payments and benefits provided for set forth in Section 4.27.1 above, the following benefits shall become due and payable:
(a) the Company will pay to the Executive (or his estate) shall (i) receive a cash amount equal to pro- rata portion of the target Annual Bonus for the calendar year lump sum payment in which the termination occurs, determined by multiplying the target Annual Bonus by a fraction, the numerator of which is the number of days during the year that transpired before the date of the Executive’s termination of employment and the denominator of which is 365, (b) the Company will pay to the Executive a cash an amount equal to the sum of his annual rate of base salary and 100% of his annual target bonus, both at the level in effect immediately prior to his termination or, if greater, at the level in effect immediately prior to the Change in Control, with such payment to be not less than $800,000, and (ii) be reimbursed for any expenses of Executive and his dependents incurred by him for COBRA coverage or pay for comparable coverage in the event he is no longer eligible for COBRA, during the one (1) year period following his termination date.
(b) The New Option and the New Stock Award, and any stock awards granted by Macromedia’s successor shall vest in full on Executive’s termination date, and shall remain exercisable until the earlier of (i) 2.5 times the first anniversary of Executive’s Base Salary as in effect on such termination date, and (ii) 2.5 times the target Annual Bonus amount expiration date of such options as set forth in the applicable stock option agreement; provided that solely for purposes of determining whether Executive shall be entitled to accelerated vesting pursuant to this Subsection 8.2(b), Executive shall have Good Reason for termination of employment only if Executive remains in employment for the calendar year six (6) months immediately following the Change in which the termination occursControl, upon written request by Macromedia and/or its successor, or such shorter period as may be determined by Macromedia and/or its successor.
(c) Upon Executive’s voluntary termination (whether or not for Good Reason), termination for Disability, death or termination by Macromedia without Cause (as defined in Subsection 7.2), Executive shall be entitled to the extent not previously paidAdditional Payment provided for in Section 7 of this Agreement. For purposes of this Section 8, the Company will pay a Change in Control shall be deemed to the Executive any Annual Bonus payable with respect to a calendar year that ended prior to that termination, occur upon:
(d) all outstanding stock options then held by Executive (including the Stock Option) will then become fully vested and immediately exercisable and will remain exercisable for the shorter of (iI) the 30sale, lease, conveyance or other disposition of all or substantially all of Macromedia’s assets as an entirety or substantially as an entirety to any person, entity or group of persons acting in concert,
(II) any transaction or series of transactions (as a result of a tender offer, merger, consolidation or otherwise) that results in, or that is in connection with, any person, entity or group acting in concert, becoming the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly, of more than 50% percent of the aggregate voting power of all classes of common equity stock of Macromedia,
(III) a liquidation and winding up of the business of Macromedia, or
(IV) a change in the composition of the Board of Directors over a period of thirty-month period immediately following six (36) consecutive months or less such that a majority of the Executive’s cessation then current Board members ceases to be comprised of employmentindividuals who either (a) have been Board members continuously since the beginning of such period, or (iib) the have been elected or nominated for election as Board members during such period remaining until the scheduled expiration by at least a majority of the option Board members described in clause (determined without regard to a) who were still in office at the Executive’s cessation time such election or nomination was approved by the Board of employment), and (d) the Company will pay to the Executive the additional amount, if any, payable pursuant to Section 7 belowDirectors.
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Certain Terminations Following a Change in Control. If Should any of the Executive’s employment with following events occur within the Company ceases within eighteen twelve (12) months following a Change in Control Control: (as defined belowi) as a result of a termination by the Company without Cause (not including, solely for purposes of this Section 6, a termination as a result of the Executive’s death or Disability) or a resignation by the Executive voluntary termination of her employment for Good Reason, then:
6.1.1. (ii) the Restricted Period will be extended termination of Executive’s employment without Cause by eighteen months;
6.1.2. subject to Section 8 and Macromedia or any successor or (iii) the termination of Executive’s employment by reason of her death or Disability, then in lieu of the payments and benefits provided for set forth in Section 4.27.1 above, the following benefits shall become due and payable:
(a) the Company will pay to the Executive (or her estate) shall (i) receive a cash amount equal to pro- rata portion of the target Annual Bonus for the calendar year lump sum payment in which the termination occurs, determined by multiplying the target Annual Bonus by a fraction, the numerator of which is the number of days during the year that transpired before the date of the Executive’s termination of employment and the denominator of which is 365, (b) the Company will pay to the Executive a cash an amount equal to the sum of her annual rate of base salary and 100% of her annual target bonus, both at the level in effect immediately prior to her termination or, if greater, at the level in effect immediately prior to the Change in Control, with such payment to be not less than $450,000, and (ii) be reimbursed for any expenses of Executive and her dependents incurred by him for COBRA coverage or pay for comparable coverage in the event he is no longer eligible for COBRA, during the one (1) year period following her termination date.
(b) New Stock Awards, and any stock awards granted by Macromedia’s successor shall vest in full on Executive’s termination date, and with respect to stock options (other than Prior Options) shall remain exercisable until the earlier of (i) 2.5 times the one year after Executive’s Base Salary as in effect on such termination date, and (ii) 2.5 times the target Annual Bonus amount expiration date of such stock options as set forth in the applicable stock option agreement; provided that solely for purposes of determining whether Executive shall be entitled to accelerated vesting pursuant to this Subsection 8.2(b), Executive shall have Good Reason for termination of employment only if Executive remains in employment for the calendar year in which the termination occurs, six (c6) to the extent not previously paid, the Company will pay to the Executive any Annual Bonus payable with respect to a calendar year that ended prior to that termination, (d) all outstanding stock options then held by Executive (including the Stock Option) will then become fully vested and immediately exercisable and will remain exercisable for the shorter of (i) the 30-month period months immediately following the ExecutiveChange in Control, upon written request by Macromedia and/or its successor, or such shorter period as may be determined by Macromedia and/or its successor. For purposes of this Section 8, a Change in Control shall be deemed to occur upon:
(I) the sale, lease, conveyance or other disposition of all or substantially all of Macromedia’s cessation assets as an entirety or substantially as an entirety to any person, entity or group of employmentpersons acting in concert,
(II) any transaction or series of transactions (as a result of a tender offer, merger, consolidation or otherwise) that results in, or that is in connection with, any person, entity or group acting in concert, becoming the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly, of more than 50% percent of the aggregate voting power of all classes of common equity stock of Macromedia,
(III) a liquidation and winding up of the business of Macromedia, or
(IV) a change in the composition of the Board of Directors over a period of thirty-six (36) consecutive months or less such that a majority of the then current Board members ceases to be comprised of individuals who either (a) have been Board members continuously since the beginning of such period, or (iib) the have been elected or nominated for election as Board members during such period remaining until the scheduled expiration by at least a majority of the option Board members described in clause (determined without regard to a) who were still in office at the Executive’s cessation time such election or nomination was approved by the Board of employment), and (d) the Company will pay to the Executive the additional amount, if any, payable pursuant to Section 7 belowDirectors.
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