Change in Control of the Company. a. Unless otherwise provided in this Agreement, in the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 4.1). b. For purposes of this Agreement, the term "Change in Control" shall mean:
Appears in 4 contracts
Samples: Employment Agreement (Netcreations Inc), Employment Agreement (Netcreations Inc), Employment Agreement (Netcreations Inc)
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 6) months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN then the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 4.1).
b. For purposes of this Agreement, the term "Change in Control" shall mean:
Appears in 3 contracts
Samples: Employment Agreement (Netcreations Inc), Employment Agreement (Netcreations Inc), Employment Agreement (Netcreations Inc)
Change in Control of the Company. a. 6.5.1 Executive understands and acknowledges that the Company may undergo a Change in Control. Unless otherwise provided in Executive elects to terminate this AgreementAgreement pursuant to subparagraph 6.5.3 below, in the event Executive hereby acknowledges and agrees that the Executive shall have no right to terminate this Agreement for a period of one year following the date of a Change in Control (as defined and receive the benefits in paragraph (b) Section 6.5.4.
6.5.2 In the event of this Section 5.6) a pending Change in Control wherein the Company shall occur during and/or the Term of Employment, and Executive have not received written notice at least five (5) business days prior to the first anticipated closing date of a transaction giving rise to the Change in Control from the successor to all or a substantial portion of the Company’s business and/or assets that such successor is willing as of the closing to assume and agree to perform the Company’s obligations under this Agreement in the same manner and to the same extent that the Company is hereby required to perform, then such Change in Control shall be deemed to be a termination of this Agreement by the Company and Section 6.5.4 hereof will apply.
6.5.3 In any Change in Control situation, Executive may, at his sole discretion, elect to terminate this Agreement at any time on or after the one-year anniversary of the date of the Change in ControlControl by providing written notice to the Company and/or a successor to all or a substantial portion of the Company’s business and/or assets at least ninety (90) days prior to the anticipated termination date. In such case, either or in the event that the Company and/or its successor terminates the Executive after a Change in Control for any reason, the applicable provisions of Section 6.5.4 hereof will apply.
6.5.4 Upon any termination pursuant to this Section 6.5, the Executive shall be entitled to: (xa) Base Salary earned but unpaid as of the date of the Executive’s termination and (b) any other payments and/or benefits which the Executive is entitled to receive under any of the Benefit Plans or otherwise in accordance with the terms of such plan or arrangement. Additionally, the Executive will receive (i) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Executive’s Base Salary through in effect at the effective date time of terminationthe termination for a period of fifteen (15) months (the “Continuation Period”) following the termination of the Executive’s employment with the Company, (2) pay to in the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, manner and at such time times as the Incentive Compensation Base Salary otherwise would have been payable to the Executive, (ii) continuation of medical and (3) pay to the Executive dental benefits under COBRA in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary effect as of the date of termination of employment for the Change in ControlContinuation Period, either (xiii) payment equal to the Term of Employment is terminated by the Company without Causediscretionary Incentive Bonus earned for such year, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options such payment shall be vested and become immediately exercisable. In addition, if a Change made at the time of termination in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to accordance with the Company, THEN the ’s normal payroll procedures; and (iv) all of Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such ’s Stock Options in that Change in Control transaction on substantially the same terms Company shall immediately vest and conditions as are applicable to shareholders become exercisable and all or any portion of the Company generally. If any of the Executive's vested Stock Options shall vest according to may be exercised at any one or more times by the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable Executive for a period of three (3) months from following termination of Executive’s employment with the Company.
6.5.5 For purposes of applying this Section 6.5 under the circumstances described in Section 6.5.2 above, the effective date of any termination will be the closing date of the Executive's employment transaction giving rise to the Change in Control and all compensation, reimbursements and lump-sum payments due Executive must be paid in full by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred at or prior to the date of termination, subject, however, to the provisions of Section 4.1)such closing.
b. For purposes of this Agreement, the term "Change in Control" shall mean:
Appears in 2 contracts
Samples: Executive Employment Agreement (Kona Grill Inc), Executive Employment Agreement (Kona Grill Inc)
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 6) months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN then the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested and not lapsed in accordance with their terms before or after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 4.1).
b. For purposes of this Agreement, the term "Change in Control" shall mean:
Appears in 2 contracts
Samples: Employment Agreement (Netcreations Inc), Employment Agreement (Netcreations Inc)
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in If the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment Employee’s employment is terminated by the Company without Cause, Without Cause pursuant to Section 5.4 2.2(d) hereof or (y) by the Executive terminates the Term of Employment Employee for Good Reason pursuant to Section 5.5(c2.2(f) hereof, in either case during the twelve (12) month period immediately following the Change in Control, then in lieu of any amounts otherwise payable under Section 2.4(c) hereof, the Company Employee shall (1) pay be entitled to the Executive following:
(i) payment of (a) any accrued yet unpaid Base Salary base salary through the effective date of termination, (2b) pay to the Executive the Incentive Compensation, if any, not any accrued yet paid to the Executive for unpaid bonus payable on account of any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, calendar year ending prior to the first anniversary year in which the termination occurs, (c) a pro-rata bonus payable on account of the year in which the termination occurs (assuming for purposes of this subclause (c) that the bonus for such year equals the average bonus Employee had received each year for the two years immediately preceding the year of the termination of employment), (d) benefits through the date of the Change in Controltermination, either (xe) the Term reimbursement of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business reimbursable expenses incurred prior to the date of termination, subjectand (g) any vacation pay on account of unused vacation accruing prior to the date of termination; and
(ii) a severance amount equal to 1.0 times the sum of (x) his then current base salary and (a) the greater of (x) the average aggregate bonus he had received each year for the two years immediately preceding the year of termination of employment, and (y) the bonus he had received for the year immediately preceding the year of the termination of employment, which severance amount shall be paid in a lump sum within ten days following the termination of employment (subject to applicable withholding and employment taxes); and
(iii) provided that Employee makes a timely election to continue coverage under the Company’s group health plans pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), health insurance benefits with the same coverage (subject to Company’s right to change coverage as set forth in the last sentence of this Section) provided to Employee prior to the termination (e.g. medical, dental, optical, mental health) will be provided at the Company’s cost for eighteen (18) months following the termination date, but not longer than until Employee is covered by comparable health insurance benefits from another employer or is otherwise ineligible for COBRA continuation coverage. Nothing contained herein shall restrict the ability of the Company or its successor from changing some or all of the terms of such health insurance benefits, the cost to participants or other features of such benefits; provided, however, that all similarly situated participants are treated the same.”
8. A new Section 2.9 is hereby added to the provisions of Section 4.1).
b. For purposes of this Agreement, the term "Change in Control" shall meanAgreement to read as follows:
Appears in 1 contract
Samples: Employment, Non Competition and Proprietary Rights Agreement (Vitacost.com, Inc.)
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in (a) If during the event that Term a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, occurs and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment Executive’s employment is terminated by the Company without Causeother than for Cause and not as a result of Executive’s death or Disability, pursuant to Section 5.4 hereof or (y) the is terminated by Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(cthen, Executive shall receive the following benefits and compensation from the Company:
(i) hereof, the Company shall (1) pay to Executive the Executive any unpaid Base Salary through Accrued Obligation within 30 days following the effective date of Executive’s date of termination, ;
(2ii) the Company shall pay to Executive a lump-sum payment consisting of three times the Executive sum of Executive’s Base Salary plus the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the average annual cash bonus received by Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred years prior to the date of termination, subjectpayable on the 60th day following Executive’s date of termination;
(iii) the Company shall pay Executive a pro-rated annual bonus for the year during which Executive’s date of termination occurs as a lump-sum payment in an amount equal to the highest annual bonus received by Executive in the three years prior to the date of termination multiplied by a fraction, howeverthe numerator of which is the number of days Executive was employed by the Company during the year of the termination and the denominator of which is 365, payable on the 60th day following Executive’s date of termination;
(iv) during the three year period following Executive’s date of termination, the Company shall allow Executive and his eligible dependents to continue to be covered by all medical, vision and dental benefit plans maintained by the Company under which Executive was covered immediately prior to Executive’s date of termination at the same active employee premium cost as a similarly situated active employee, provided that such reimbursements shall not be made in the event the Company would be subject to any excise tax under Section 4980D of the Internal Revenue Code of 1986, as amended (the “Code”) or other penalty or liability pursuant to the provisions of the Patient Protection and Affordable Care Act of 2010 (as amended from time to time), and in lieu of providing the subsidized premiums described above, the Company shall instead pay to Executive a fully taxable monthly cash payment in an amount such that, after payment by Executive of all taxes on such payment, Executive retains an amount equal to the applicable premiums for such month, with such monthly payment being made on the last day of each month for the remainder of such three-year period; provided, further, that such benefits provided during the three-year period shall run concurrent with the health continuation coverage period mandated by Section 4.1)4980B of the Code;
(v) the Company will cause all unvested options and restricted stock awards, previously granted by the Company to Executive, to vest on the 60th day following Executive’s date of termination;
(vi) Executive shall be entitled to receive a number of shares in an amount equal to the target amount of any performance units, previously granted to Executive, on the 60th day following Executive’s date of termination; and
(vii) the Company shall pay Executive the Benefit Obligation at the times specified in and in accordance with the terms of the applicable employee benefit plans and compensation arrangements. Notwithstanding the foregoing, neither Executive, nor his estate, shall be permitted to specify the taxable year in which a payment described in this Section 7(a) shall be paid.
b. (b) For purposes of this Agreement, the term "a “Change in Control" Control of the Company” shall meanmean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six twelve (6 12) months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 4.1).
b. For purposes of this Agreement, the term "Change in Control" shall mean:
Appears in 1 contract
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in (a) If during the event that Term a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, occurs and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment Executive’s employment is terminated by the Company without Causeother than for Cause and not as a result of Executive’s death or Disability, pursuant to Section 5.4 hereof or (y) the is terminated by Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(cthen, Executive shall receive the following benefits and compensation from the Company:
(i) hereof, the Company shall (1) pay to Executive the Executive any unpaid Base Salary through Accrued Obligation within 30 days following the effective date of Executive’s date of termination, ;
(2ii) the Company shall pay to Executive a lump-sum payment consisting of 2.5 times the Executive sum of Executive’s Base Salary plus the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the average annual cash bonus received by Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred years prior to the date of termination, subjectpayable on the 60th day following Executive’s date of termination;
(iii) the Company shall pay Executive a pro-rated annual bonus for the year during which Executive’s date of termination occurs as a lump-sum payment in an amount equal to the highest annual bonus received by Executive in the three years prior to the date of termination multiplied by a fraction, howeverthe numerator of which is the number of days Executive was employed by the Company during the year of the termination and the denominator of which is 365, payable on the 60th day following Executive’s date of termination;
(iv) during the thirty-month period following Executive’s date of termination, the Company shall allow Executive and his eligible dependents to continue to be covered by all medical, vision and dental benefit plans maintained by the Company under which Executive was covered immediately prior to Executive’s date of termination at the same active employee premium cost as a similarly situated active employee, provided that such reimbursements shall not be made in the event the Company would be subject to any excise tax under Section 4980D of the Internal Revenue Code of 1986, as amended (the “Code”) or other penalty or liability pursuant to the provisions of the Patient Protection and Affordable Care Act of 2010 (as amended from time to time), and in lieu of providing the subsidized premiums described above, the Company shall instead pay to Executive a fully taxable monthly cash payment in an amount such that, after payment by Executive of all taxes on such payment, Executive retains an amount equal to the applicable premiums for such month, with such monthly payment being made on the last day of each month for the remainder of such thirty-month period; provided, further, that such benefits provided during the thirty-month period shall run concurrent with the health continuation coverage period mandated by Section 4.1)4980B of the Code;
(v) the Company will cause all unvested options and restricted stock awards, previously granted by the Company to Executive, to vest on the 60th day following Executive’s date of termination;
(vi) Executive shall be entitled to receive a number of shares in an amount equal to the target amount of any performance units, previously granted to Executive, on the 60th day following Executive’s date of termination; and
(vii) the Company shall pay Executive the Benefit Obligation at the times specified in and in accordance with the terms of the applicable employee benefit plans and compensation arrangements. Notwithstanding the foregoing, neither Executive, nor his estate, shall be permitted to specify the taxable year in which a payment described in this Section 7(a) shall be paid.
b. (b) For purposes of this Agreement, the term "a “Change in Control" Control of the Company” shall meanmean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in In the event that (i) a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and (ii) prior to the first anniversary earlier of the Expiration Date and one year after the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1i) continue to pay to the Executive any unpaid Executive's Base Salary through for a period (the effective date "Continuation Period") which is 180 days following the termination of terminationthe Executive's employment with the Company, (2) pay to in the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, manner and at such time as the Incentive Compensation Base Salary otherwise would have been payable to the Executive, (ii) continue to calculate the Incentive Compensation and continue to provide the Executive with the Benefits through the end of the Continuation Period in the manner and at such times as the Incentive Compensation or Benefits otherwise would have been payable or provided to the Executive, (3iii) pay to the Executive the accrued but unpaid Incentive Compensation, if any, for any Bonus Period ending on or before the end of the Continuation Period calculated in accordance with Section 3.3(g) hereof, and (iv) pay to the Executive a lump sum payment an amount equal to the amount greater of (x) the sum of the Executive's Base Salary for the six year then in effect plus the Incentive Compensation for the preceding fiscal year or (6 months preceding such termination. If, during y) the Term of Employment, any Change in Control should occur and, prior to the first anniversary sum of the date Executive's Base Salary for any remaining portion of the Initial Term plus the Incentive Compensation for the preceding fiscal year, within fifteen (15) days of the end of the Continuation Period. Further, upon the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according immediately vest. The Stock Options which become vested pursuant to this Section 5.6 may be exercised until the applicable vesting schedule, earlier of the options which shall have vested after any such Change in Control shall continue to be exercisable for a (x) the three-month period of three months from immediately following the date of any such termination of employment and (y) the Executive's employment by expiration of the Company following such Change term specified in Controlthe Stock Option. Any unvested portion of the restricted stock granted to the Executive pursuant to Sections 3.1, 3.3(c), 3.3(d) and 3.3(e) shall immediately vest. The Company shall have no further liability hereunder (other than for (1) reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 4.1, and (2) payment of compensation for unused vacation days that have accumulated during the calendar year in which such termination occurs).
b. For purposes of this Agreement, the term "Change in Control" shall mean:: (i) Approval by the shareholders of the Company of (x) a reorganization, merger, consolidation or other form of corporate transaction or series of transactions, in each case, with respect to which persons who were the shareholders of the Company immediately prior to such reorganization, merger or consolidation or other transaction do not, immediately thereafter, own more than 30% of the combined voting power entitled to vote generally in the election of directors of the reorganized, merged or consolidated company's then outstanding voting securities, in substantially the same proportions as their ownership immediately prior to such reorganization, merger, consolidation or other transaction, or (y) a liquidation or dissolution of the Company or (z) the sale of all or substantially all of the assets of the Company (unless such reorganization, merger, consolidation or other corporate transaction, liquidation, dissolution or sale is subsequently abandoned); (ii) Individuals who, as of the Commencement Date of this Agreement, constitute the Board (the "Incumbent Board") cease for any reason to constitute at least a majority of the Board, provided (i) that any person becoming a director subsequent to the Commencement Date of this Agreement whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board (other than an election or nomination of an individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the Directors of the Company, as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Securities Exchange Act) or (ii) any individual appointed to the Board by the Incumbent Board shall be, for purposes of this Agreement, considered as though such person were a member of the Incumbent Board; or (iii) the acquisition (other than from the Company) by any person, entity or "group", within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act, of more than 30% of either the then outstanding shares of the Company's Common Stock or the combined voting power of the Company's then outstanding voting securities entitled to vote generally in the election of directors (hereinafter referred to as the ownership of a "Controlling Interest") excluding, for this purpose, any acquisitions by (1) the Company or its Subsidiaries, or (2) any person, entity or "group" that as of the Commencement Date of this Agreement owns beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act) of a Controlling Interest or any affiliate of such person, entity or "group."
Appears in 1 contract
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in If the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment Employee’s employment is terminated by the Company without Cause, Without Cause pursuant to Section 5.4 2.2(e) hereof or (y) by the Executive terminates the Term of Employment Employee for Good Reason pursuant to Section 5.5(c2.2(g) hereof, in either case during the two (2) year period immediately following the Change in Control, then in lieu of any amounts otherwise payable under Section 2.4(c) hereof, the Company Employee shall (1) pay be entitled to the Executive following:
(i) payment of (a) any accrued yet unpaid Base Salary base salary through the effective date of termination, (2b) pay to the Executive the Incentive Compensation, if any, not any accrued yet paid to the Executive for unpaid bonus payable on account of any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, calendar year ending prior to the first anniversary year in which the termination occurs, (c) a pro-rata bonus payable on account of the year in which the termination occurs (assuming for purposes of this subclause (c) that the bonus for such year equals the average bonus Employee had received each year for the two years immediately preceding the year of the termination of employment), (d) benefits through the date of the Change in Controltermination, either (xe) the Term reimbursement of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business reimbursable expenses incurred prior to the date of termination, subjectand (g) any vacation pay on account of unused vacation accruing prior to the date of termination; and
(ii) a severance amount equal to 2.99 times the sum of (x) his then current base salary and (a) the greater of (x) the average aggregate bonus he had received each year for the two years immediately preceding the year of termination of employment, and (y) the bonus he had received for the year immediately preceding the year of the termination of employment, which severance amount shall be paid in a lump sum within ten days following the termination of employment (subject to applicable withholding and employment taxes); and
(iii) provided that Employee makes a timely election to continue coverage under the Company’s group health plans pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), health insurance benefits with the same coverage (subject to Company’s right to change coverage as set forth in the last sentence of this Section) provided to Employee prior to the termination (e.g. medical, dental, optical, mental health) will be provided at the Company’s cost for eighteen (18) months following the termination date, but not longer than until Employee is covered by comparable health insurance benefits from another employer or is otherwise ineligible for COBRA continuation coverage. Nothing contained herein shall restrict the ability of the Company or its successor from changing some or all of the terms of such health insurance benefits, the cost to participants or other features of such benefits; provided, however, that all similarly situated participants are treated the same.”
10. A new Section 2.9 is hereby added to the provisions of Section 4.1).
b. For purposes of this Agreement, the term "Change in Control" shall meanAgreement to read as follows:
Appears in 1 contract
Samples: Employment, Non Competition and Proprietary Rights Agreement (Vitacost.com, Inc.)
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in If Executive’s employment is terminated either by the event that a Company without Cause or by Executive for Good Reason during the two (2) year period immediately following the Change in Control (a “Qualifying Termination”), then in lieu of any amounts otherwise payable under Section 2.4(c) hereof, Executive shall be entitled to the following, subject to Executive’s execution and non-revocation of the General Release referred to in Section 2.4(j) below and subject to Executive’s compliance with Sections 2.5, 2.6 and 2.7 below:
(i) all previously earned and accrued but unpaid Base Salary and Annual Bonus up to the Termination Date, payable as defined and when such amounts would be payable had Executive’s employment not terminated and Executive shall be entitled to vested benefits and other amounts in paragraph accordance with the terms of the applicable plan or program;
(bii) an amount equal to two (2) times the sum of (A) Executive’s then Base Salary under Section 2.3(a) immediately prior to the Termination Date, and (B) Executive’s Target Bonus Amount as in effect under Section 2.3(b) for the year in which the Termination Date occurs, in each case assuming for this Section 5.6purpose attainment of 100% of any applicable target (collectively, the “Compensation Incentive Amount”), payable in a lump sum cash payment on the sixty-first (61st) day after the Termination Date;
(iii) Benefit Continuation for eighteen (18) months, at the Company’s expense; provided, however, that if the Company’s providing Benefit Continuation would violate the non-discrimination rules applicable to non-grandfathered plans, or would result in the imposition of penalties under applicable rules, the Company shall occur during have the Term right to amend this Section 2.4(h)(iii) in a manner it determines, in its sole discretion, to comply with the PPACA;
(iv) to the extent not provided in an applicable LTI Award, full vesting and payment of Employmentall outstanding LTI Awards subject solely to time-based vesting and full vesting and payment of all LTI awards subject to performance-vesting at the greater of target or actual performance;
(v) reasonable legal fees and related expenses incurred by Executive: (A) as a result of the Qualifying Termination; (B) in seeking to obtain or enforce any right or benefit provided by this Agreement (including all fees and expenses and/or arbitration administrative costs, if any, incurred in contesting or disputing any such termination or incurred by the Executive in seeking advice in connection therewith); and/or (C) in seeking in good faith to obtain or enforce any benefit or right provided by this Agreement or in connection with any tax audit or proceeding to the extent attributable to the application of Section 4999 of the Code, and any payment or benefit provided hereunder; and
(vi) the Company shall make available to Executive, at the Company’s expense, outplacement counseling. Executive may select the organization that will provide the outplacement counseling; provided, however, that the Company’s obligation to provide such benefits shall be limited to reasonable expenses. This counseling must be used, if at all, no later than the end of the first calendar year after the year of the Termination Date. Notwithstanding the foregoing, in consideration of the covenants under this Agreement and as a condition precedent to receiving any payments under this Section 2.4(h), Executive agrees to the execution and non-revocation of the General Release, as in effect immediately prior to the first anniversary a Change in Control, within sixty (60) days of the date of the Qualifying Termination or Change in Control, either whichever applicable. If the sixty (x60) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, day period spans over two (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employmentcalendar years, any Change payments must be made in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 4.1)later taxable year.
b. For purposes of this Agreement, the term "Change in Control" shall mean:
Appears in 1 contract
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 6) months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN then the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock Common Stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the unexercised options which shall have vested before or after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 4.1).
b. For purposes of this Agreement, the term "Change in Control" shall mean:
Appears in 1 contract
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in (a) If during the event that Term a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, occurs and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment Executive’s employment is terminated by the Company without Causeother than for Cause and not as a result of Executive’s death or Disability, pursuant to Section 5.4 hereof or (y) the is terminated by Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(cthen, Executive shall receive the following benefits and compensation from the Company: (i) hereof, the Company shall (1) pay to Executive the Executive any unpaid Base Salary through Accrued Obligation within 30 days following the effective date of Executive’s date of termination, ; (2ii) the Company shall pay to Executive a lump-sum payment consisting of 2.5 times the Executive sum of Executive’s Base Salary plus the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the average annual cash bonus received by Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred years prior to the date of termination, subjectpayable on the 60th day following Executive’s date of termination; (iii) the Company shall pay Executive a pro-rated annual bonus for the year during which Executive’s date of termination occurs as a lump-sum payment in an amount equal to the highest annual bonus received by Executive in the three years prior to the date of termination multiplied by a fraction, howeverthe numerator of which is the number of days Executive was employed by the Company during the year of the termination and the denominator of which is 365, payable on the 60th day following Executive’s date of termination; (iv) during the thirty-month period following Executive’s date of termination, the Company shall allow Executive and his eligible dependents to continue to be covered by all medical, vision and dental benefit plans maintained by the Company under which Executive was covered immediately prior to Executive’s date of termination at the same active employee premium cost as a similarly situated active employee, provided that such reimbursements shall not be made in the event the Company would be subject to any excise tax under Section 4980D of the Internal Revenue Code of 1986, as amended (the “Code”) or other penalty or liability pursuant to the provisions of Section 4.1the Patient Protection and Affordable Care Act of 2010 (as amended from time to time).
b. For purposes , and in lieu of this Agreementproviding the subsidized premiums described above, the term "Change Company shall instead pay to Executive a fully taxable monthly cash payment in Control" an amount such that, after payment by Executive of all taxes on such payment, Executive retains an amount equal to the applicable premiums for such month, with such monthly payment being made on the last day of each month for the remainder of such thirty-month period; provided, further, that such benefits provided during the thirty-month period shall mean:run concurrent with the health continuation coverage period mandated by Section 4980B of the Code;
Appears in 1 contract
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in (a) If during the event that Term a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, occurs and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment Executive’s employment is terminated by the Company without Causeother than for Cause and not as a result of Executive’s death or Disability, pursuant to Section 5.4 hereof or (y) the is terminated by Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(cthen, Executive shall receive the following benefits and compensation from the Company:
(i) hereof, the Company shall (1) pay to Executive the Executive any unpaid Base Salary through Accrued Obligation within 30 days following the effective date of Executive’s date of termination, ;
(2ii) the Company shall pay to Executive a lump-sum payment consisting of 2.5 times the Executive sum of Executive’s Base Salary plus the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the average annual cash bonus received by Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred years prior to the date of termination, subjectpayable on the 60th day following Executive’s date of termination;
(iii) the Company shall pay Executive a pro-rated annual bonus for the year during which Executive’s date of termination occurs as a lump-sum payment in an amount equal to the highest annual bonus received by Executive in the three years prior to the date of termination multiplied by a fraction, howeverthe numerator of which is the number of days Executive was employed by the Company during the year of the termination and the denominator of which is 365, payable on the 60th day following Executive’s date of termination;
(iv) during the thirty-month period following Executive’s date of termination, the Company shall allow Executive and his eligible dependents to continue to be covered by all medical, vision and dental benefit plans maintained by the Company under which Executive was covered immediately prior to Executive’s date of termination at the same active employee premium cost as a similarly situated active employee, provided that such reimbursements shall not be made in the event the Company would be subject to any excise tax under Section 4980D of the Internal Revenue Code of 1986, as amended (the “Code”) or other penalty or liability pursuant to the provisions of the Patient Protection and Affordable Care Act of 2010 (as amended from time to time), and in lieu of providing the subsidized premiums described above, the Company shall instead pay to Executive a fully taxable monthly cash payment in an amount such that, after payment by Executive of all taxes on such payment, Executive retains an amount equal to the applicable premiums for such month, with such monthly payment being made on the last day of each month for the remainder of such thirty-month period; provided, further, that such benefits provided during the thirty-month period shall run concurrent with the health continuation coverage period mandated by Section 4.1)4980B of the Code;
(v) the Company will cause all unvested options, restricted stock awards and restricted stock units, previously granted by the Company to Executive, to vest on the 60th day following Executive’s date of termination;
(vi) Executive shall be entitled to receive a number of shares of Company common stock in an amount equal to the target amount of any performance units, previously granted to Executive, on the 60th day following Executive’s date of termination; and
(vii) the Company shall pay Executive the Benefit Obligation at the times specified in and in accordance with the terms of the applicable employee benefit plans and compensation arrangements. Notwithstanding the foregoing, neither Executive, nor his estate, shall be permitted to specify the taxable year in which a payment described in this Section 7(a) shall be paid.
b. (b) For purposes of this Agreement, the term "a “Change in Control" Control of the Company” shall meanmean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in If the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment Employee’s employment is terminated by the Company without Cause, Without Cause pursuant to Section 5.4 2.2(d) hereof or (y) by the Executive terminates the Term of Employment Employee for Good Reason pursuant to Section 5.5(c2.2(f) hereof, in either case during the eighteen (18) month period immediately following the Change in Control, then in lieu of any amounts otherwise payable under Section 2.4(c) hereof, the Company Employee shall (1) pay be entitled to the Executive following:
(i) payment of (a) any accrued yet unpaid Base Salary base salary through the effective date of termination, (2b) pay to the Executive the Incentive Compensation, if any, not any accrued yet paid to the Executive for unpaid bonus payable on account of any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, calendar year ending prior to the first anniversary year in which the termination occurs, (c) a pro-rata bonus payable on account of the year in which the termination occurs (assuming for purposes of this subclause (c) that the bonus for such year equals the average bonus Employee had received each year for the two years immediately preceding the year of the termination of employment), (d) benefits through the date of the Change in Controltermination, either (xe) the Term reimbursement of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business reimbursable expenses incurred prior to the date of termination, subjectand (g) any vacation pay on account of unused vacation accruing prior to the date of termination; and
(ii) a severance amount equal to 2.0 times the sum of (x) her then current base salary and (a) the greater of (x) the average aggregate bonus she had received each year for the two years immediately preceding the year of termination of employment, and (y) the bonus she had received for the year immediately preceding the year of the termination of employment, which severance amount shall be paid in a lump sum within ten days following the termination of employment (subject to applicable withholding and employment taxes); and
(iii) provided that Employee makes a timely election to continue coverage under the Company’s group health plans pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), health insurance benefits with the same coverage (subject to Company’s right to change coverage as set forth in the last sentence of this Section) provided to Employee prior to the termination (e.g. medical, dental, optical, mental health) will be provided at the Company’s cost for eighteen (18) months following the termination date, but not longer than until Employee is covered by comparable health insurance benefits from another employer or is otherwise ineligible for COBRA continuation coverage. Nothing contained herein shall restrict the ability of the Company or its successor from changing some or all of the terms of such health insurance benefits, the cost to participants or other features of such benefits; provided, however, that all similarly situated participants are treated the same.”
9. A new Section 2.9 is hereby added to the provisions of Section 4.1).
b. For purposes of this Agreement, the term "Change in Control" shall meanAgreement to read as follows:
Appears in 1 contract
Samples: Employment, Non Competition and Proprietary Rights Agreement (Vitacost.com, Inc.)
Change in Control of the Company. a. Unless 12.1 Subject to Section 12.2 hereof, the Company shall pay the Executive the payments described in this Section 12.1 (the "Change of Control Payments") upon the termination of the Executive's employment following a Change in Control and during the term of this Agreement, in addition to any of the then unpaid compensation and benefits previously required to be paid to Executive through the date of termination, unless such termination is (i) by the Company for cause, or (ii) by reason of death, disability (as defined in Section 4.2) or voluntary resignation or retirement of Executive. The Change of Control Payments shall be as follows:
(a) In lieu of any further salary payments to the Executive for periods subsequent to the date of termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two (2) times the Executive's annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the notice of termination is based;
(b) The Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any annual and quarterly performance or discretionary bonuses which have been allocated or awarded to the Executive for a completed fiscal year preceding the date of termination but has not yet been paid (pursuant to Section 3.3 hereof or otherwise), and (ii) a pro rata portion of any annual and quarterly performance or discretionary bonuses for the fiscal year in which the date of termination occurs, determined by multiplying the Executive's bonuses awarded or paid for the most recently completed fiscal year by a fraction, the numerator of which shall be the number of full days the Executive was employed by the Company during the fiscal year in which the Executive's date of termination occurred and the denominator of which shall be three hundred and sixty-five (365) days; and
(c) For a twelve (12) month period after the date of termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to those which the Executive is receiving immediately prior to the notice of termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 12.1(c) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twelve (12) month period following the Executive's termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive). If the benefits provided to the Executive under this Section 12.1.(c) shall result in a decrease, pursuant to Section 12.2, in the Change of Control Payments and these Section 12.1(c) benefits are thereafter reduced pursuant to the immediately preceding sentence because of the receipt of comparable benefits, the Company shall, at the time of such reduction, pay to the Executive the lesser of (a) the amount of the decrease made in the Change of Control Payments pursuant to Section 12.2, or (b) the maximum amount which can be paid to the Executive without being, or causing any other payment to be, nondeductible by the Company by reason of section 280G of the Code.
12.2 Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive in connection with and contingent on a Change in Control (as defined in paragraph (b) of this Section 5.6) in or the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person) (all such payments and benefits, including the Change of Control Payments, being hereinafter called "Total Payments") would not be deductible (in whole or part), by the Company following Company, an affiliate or person making such payment or providing such benefit, as a result of section 280G of the Code, then, to the extent necessary to make the remaining portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement), (A) the cash Change of Control Payments and/or other cash payments provided for hereunder, in Control. The Company each case, to the extent still unpaid, shall first be reduced (if necessary, to zero), and (B) all other noncash Change of Control Payments and/or other noncash benefits provided for hereunder, in each case, to the extent still unfurnished, shall next be reduced (if necessary, to zero), and (C) the Executive shall have no further liability right to receive hereunder, and neither the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person shall be obligated to make, pay or furnish to the Executive hereunder any payment or benefit in excess of those payments or benefits provided hereunder as reduced, if applicable, pursuant to clause (other than for reimbursement for reasonable business expenses incurred A) or clause (B) above. For purposes of this limitation (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have effectively waived in writing prior to the date of terminationtermination shall be taken into account, subject(ii) no portion of the Total Payments shall be taken into account which in the opinion of tax counsel selected by the Company's independent auditors and reasonably acceptable to the Executive does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (iii) the Change of Control Payments shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of the tax counsel referred to in clause (ii); and (iv) the value of any noncash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Company's independent auditors in accordance with the principles of sections 280G(d)(3) and (4) of the Code. If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Section 12.2, the aggregate "parachute payments" paid to or for the Executive's benefit are in an amount that would result in any portion of such "parachute payments" not being deductible by reason of section 280G of the Code, then the Executive shall have an obligation to pay the Company upon demand an amount equal to the sum of (i) the excess of the aggregate "parachute payments" paid to or for the Executive's benefit over the aggregate "parachute payments" that could have been paid to or for the Executive's benefit without any portion of such "parachute payments" not being deductible by reason of section 280G of the Code; and (ii) interest on the amount set forth in clause (i) of this sentence at the rate provided in section 1274(b)(2)(B) of the Code from the date of the Executive's receipt of such excess until the date of such payment.
12.3 The payments and other items provided for in Section 12.1 (other than Section 12.1(c)) hereof shall be made not later than the fifteenth (15th) day following the date of termination or the date of exercise by Executive of any of Executive's rights hereunder; provided, however, that if the amounts of such payments, and the limitation on such payments set forth in Section 12.2 hereof, cannot be finally determined on or before such day, the Company shall pay to the provisions Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the date of termination. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in section 1274(b)(2)(B) of the Code). At the time that payments are made under this Section 4.112.3, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).
b. 12.4 The Company also shall pay to the Executive all legal and accounting fees and expenses incurred by the Executive as a result of a termination which entitles the Executive to the Change of Control Payments (including all such fees and expenses, if any, incurred in disputing any such termination or in seeking in good faith to obtain or enforce any benefit or right provided by this Agreement or in connection with any tax audit or proceeding to the extent attributable to the application of section 4999 of the Code to any payment or benefit provided hereunder). Such payments shall be made within fifteen (15) business days after delivery of the Executive's written requests for payment accompanied with such evidence of fees and expenses incurred as the Company reasonably may require.
12.5 For purposes of this Agreement, the term following terms shall have the meanings indicated below:
(i) A "Change in Control" shall meanbe deemed to have occurred if the conditions set forth in any one of the following paragraphs shall have been satisfied:
(I) any persons becomes the beneficial owner, directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such person any securities acquired directly from the Company or its affiliates, as such term is defined in the rules and regulations of the Securities and Exchange Commission) representing 50.1% or more of the combined voting power of the Company's then outstanding securities; or
(II) during any period of two consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in clause (I), (III) or (IV) of this paragraph) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(III) the shareholders of the Company approve a merger or statutory share exchange of the Company with any other corporation, other than (i) a merger or statutory share exchange which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 75% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or statutory share exchange, or (ii) a merger or statutory share exchange effected to implement a recapitalization of the Company (or similar transaction) in which no person acquires more than 25% of the combined voting power of the Company's then outstanding securities; or
(IV) the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all the Company's assets.
Appears in 1 contract
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in If the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment Employee’s employment is terminated by the Company without Cause, Without Cause pursuant to Section 5.4 2.2(e) hereof or (y) by the Executive terminates the Term of Employment Employee for Good Reason pursuant to Section 5.5(c2.2(g) hereof, in either case during the eighteen (18) month period immediately following the Change in Control, then in lieu of any amounts otherwise payable under Section 2.4(c) hereof, the Company Employee shall (1) pay be entitled to the Executive following:
(i) payment of (a) any accrued yet unpaid Base Salary base salary through the effective date of termination, (2b) pay to the Executive the Incentive Compensation, if any, not any accrued yet paid to the Executive for unpaid bonus payable on account of any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, calendar year ending prior to the first anniversary year in which the termination occurs, (c) a pro-rata bonus payable on account of the year in which the termination occurs (assuming for purposes of this subclause (c) that the bonus for such year equals the average bonus Employee had received each year for the two years immediately preceding the year of the termination of employment), (d) benefits through the date of the Change in Controltermination, either (xe) the Term reimbursement of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business reimbursable expenses incurred prior to the date of termination, subjectand (g) any vacation pay on account of unused vacation accruing prior to the date of termination; and
(ii) a severance amount equal to 2.5 times the sum of (x) his then current base salary and (a) the greater of (x) the average aggregate bonus he had received each year for the two years immediately preceding the year of termination of employment, and (y) the bonus he had received for the year immediately preceding the year of the termination of employment, which severance amount shall be paid in a lump sum within ten days following the termination of employment (subject to applicable withholding and employment taxes); and
(iii) provided that Employee makes a timely election to continue coverage under the Company’s group health plans pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), health insurance benefits with the same coverage (subject to Company’s right to change coverage as set forth in the last sentence of this Section) provided to Employee prior to the termination (e.g. medical, dental, optical, mental health) will be provided at the Company’s cost for eighteen (18) months following the termination date, but not longer than until Employee is covered by comparable health insurance benefits from another employer or is otherwise ineligible for COBRA continuation coverage. Nothing contained herein shall restrict the ability of the Company or its successor from changing some or all of the terms of such health insurance benefits, the cost to participants or other features of such benefits; provided, however, that all similarly situated participants are treated the same.”
10. A new Section 2.9 is hereby added to the provisions of Section 4.1).
b. For purposes of this Agreement, the term "Change in Control" shall meanAgreement to read as follows:
Appears in 1 contract
Samples: Employment, Non Competition and Proprietary Rights Agreement (Vitacost.com, Inc.)
Change in Control of the Company. a. Unless 12.1 Subject to Section 12.2 hereof, the Company shall pay the Executive the payments described in this Section 12.1 (the "Change of Control Payments") upon the termination of the Executive's employment following a Change in Control and during the term of this Agreement, in addition to any of the then unpaid compensation and benefits previously required to be paid to Executive through the date of termination, unless such termination is (i) by the Company for cause, or (ii) by reason of death, disability (as defined in Section 4.2) or voluntary resignation or retirement of Executive. The Change of Control Payments shall be as follows:
(a) In lieu of any further salary payments to the Executive for periods subsequent to the date of termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two (2) times the Executive's annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the notice of termination is based;
(b) The Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any annual and quarterly performance or discretionary bonuses which have been allocated or awarded to the Executive for a completed calendar year preceding the date of termination but has not yet been paid (pursuant to Section 3.3 hereof or otherwise), and (ii) a pro rata portion of any annual and quarterly performance or discretionary bonuses for the calendar year in which the date of termination occurs, determined by multiplying the Executive's bonuses awarded or paid for the most recently completed calendar year by a fraction, the numerator of which shall be the number of full days the Executive was employed by the Company during the fiscal year in which the Executive's date of termination occurred and the denominator of which shall be three hundred and sixty-five (365) days; and
(c) For a twelve (12) month period after the date of termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to those which the Executive is receiving immediately prior to the notice of termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 12.1(c) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twelve (12) month period following the Executive's termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive). If the benefits provided to the Executive under this Section 12.1.(c) shall result in a decrease, pursuant to Section 12.2, in the Change of Control Payments and these Section 12.1(c) benefits are thereafter reduced pursuant to the immediately preceding sentence because of the receipt of comparable benefits, the Company shall, at the time of such reduction, pay to the Executive the lesser of (a) the amount of the decrease made in the Change of Control Payments pursuant to Section 12.2, or (b) the maximum amount which can be paid to the Executive without being, or causing any other payment to be, nondeductible by the Company by reason of section 280G of the Code.
12.2 Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive in connection with and contingent on a Change in Control (as defined in paragraph (b) of this Section 5.6) in or the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person) (all such payments and benefits, including the Change of Control Payments, being hereinafter called "Total Payments") would not be deductible (in whole or part), by the Company following Company, an affiliate or person making such payment or providing such benefit, as a result of section 280G of the Code, then, to the extent necessary to make the remaining portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement), (A) the cash Change of Control Payments and/or other cash payments provided for hereunder, in Control. The Company each case, to the extent still unpaid, shall first be reduced (if necessary, to zero), and (B) all other noncash Change of Control Payments and/or other noncash benefits provided for hereunder, in each case, to the extent still unfurnished, shall next be reduced (if necessary, to zero), and (C) the Executive shall have no further liability right to receive hereunder, and neither the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person shall be obligated to make, pay or furnish to the Executive hereunder any payment or benefit in excess of those payments or benefits provided hereunder as reduced, if applicable, pursuant to clause (other than for reimbursement for reasonable business expenses incurred A) or clause (B) above. For purposes of this limitation (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have effectively waived in writing prior to the date of terminationtermination shall be taken into account, subject(ii) no portion of the Total Payments shall be taken into account which in the opinion of tax counsel selected by the Company's independent auditors and reasonably acceptable to the Executive does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (iii) the Change of Control Payments shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of the tax counsel referred to in clause (ii); and (iv) the value of any noncash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Company's independent auditors in accordance with the principles of sections 280G(d)(3) and (4) of the Code. If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Section 12.2, the aggregate "parachute payments" paid to or for the Executive's benefit are in an amount that would result in any portion of such "parachute payments" not being deductible by reason of section 280G of the Code, then the Executive shall have an obligation to pay the Company upon demand an amount equal to the sum of (i) the excess of the aggregate "parachute payments" paid to or for the Executive's benefit over the aggregate "parachute payments" that could have been paid to or for the Executive's benefit without any portion of such "parachute payments" not being deductible by reason of section 280G of the Code; and (ii) interest on the amount set forth in clause (i) of this sentence at the rate provided in section 1274(b)(2)(B) of the Code from the date of the Executive's receipt of such excess until the date of such payment.
12.3 The payments and other items provided for in Section 12.1 (other than Section 12.1(c)) hereof shall be made not later than the fifteenth (15th) day following the date of termination or the date of exercise by Executive of any of Executive's rights hereunder; provided, however, that if the amounts of such payments, and the limitation on such payments set forth in Section 12.2 hereof, cannot be finally determined on or before such day, the Company shall pay to the provisions Executive on such day an estimate, as determined in good faith by the Company, of Section 4.1).
b. For purposes the minimum amount of this Agreement, such payments to which the term "Change Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Control" shall mean:section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the date of
Appears in 1 contract
Change in Control of the Company. a. Unless 12.1 Subject to Section 12.2 hereof, the Company shall pay the Executive the payments described in this Section 12.1 (the "Change of Control Payments") upon the termination of the Executive's employment following a Change in Control and during the term of this Agreement, including voluntary termination by the Executive for Good Reason (as defined in Section 12.5 (iii)), in addition to any of the then unpaid compensation and benefits previously required to be paid to Executive through the date of termination, unless such termination is (i) by the Company for cause, or (ii) by reason of death, becoming Completely Disabled (as defined in Section 4.2) or voluntary resignation without Good Reason or retirement of Executive. The Change of Control Payments shall be as follows:
(a) In lieu of any further salary payments to the Executive for periods subsequent to the date of termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two (2) times the Executive's annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the notice of termination is based;
(b) The Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any annual and quarterly performance or discretionary bonuses which have been allocated or awarded to the Executive for a completed calendar year preceding the date of termination but has not yet been paid (pursuant to Section 3.3 hereof or otherwise), (ii) a pro rata portion of any annual and quarterly performance or discretionary bonuses for the calendar year in which the date of termination occurs, determined by multiplying the Executive's bonuses awarded or paid for the most recently completed calendar year by a fraction, the numerator of which shall be the number of full days the Executive was employed by the Company during the fiscal year in which the Executive's date of termination occurred and the denominator of which shall be three hundred and sixty-five (365) days; and
(c) For a twelve (12) month period after the date of termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to those which the Executive is receiving immediately prior to the notice of termination. Benefits otherwise receivable by the Executive pursuant to this Section 12.1(c) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twelve (12) month period following the Executive's termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive). If the benefits provided to the Executive under this Section 12.1.(c) shall result in a decrease, pursuant to Section 12.2, in the Change of Control Payments and these Section 12.1(c) benefits are thereafter reduced pursuant to the immediately preceding sentence because of the receipt of comparable benefits, the Company shall, at the time of such reduction, pay to the Executive the lesser of (a) the amount of the decrease made in the Change of Control Payments pursuant to Section 12.2, or (b) the maximum amount which can be paid to the Executive without being, or causing any other payment to be, nondeductible by the Company by reason of section 280G of the Code.
12.2 Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive in connection with and contingent on a Change in Control (as defined in paragraph (b) of this Section 5.6) in or the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person) (all such payments and benefits, including the Change of Control Payments, being hereinafter called "Total Payments") would not be deductible (in whole or part), by the Company following Company, an affiliate or person making such payment or providing such benefit, as a result of section 280G of the Code, then, to the extent necessary to make the remaining portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement), (A) the cash Change of Control Payments and/or other cash payments provided for hereunder, in Control. The Company each case, to the extent still unpaid, shall first be reduced (if necessary, to zero), and (B) all other noncash Change of Control Payments and/or other noncash benefits provided for hereunder, in each case, to the extent still unfurnished, shall next be reduced (if necessary, to zero), and (C) the Executive shall have no further liability right to receive hereunder, and neither the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person shall be obligated to make, pay or furnish to the Executive hereunder any payment or benefit in excess of those payments or benefits provided hereunder as reduced, if applicable, pursuant to clause (other than for reimbursement for reasonable business expenses incurred A) or clause (B) above. For purposes of this limitation (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have effectively waived in writing prior to the date of terminationtermination shall be taken into account, subject(ii) no portion of the Total Payments shall be taken into account which in the opinion of tax counsel selected by the Company's independent auditors and reasonably acceptable to the Executive does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (iii) the Change of Control Payments shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of the tax counsel referred to in clause (ii); and (iv) the value of any noncash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Company's independent auditors in accordance with the principles of sections 280G(d)(3) and (4) of the Code. If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Section 12.2, the aggregate "parachute payments" paid to or for the Executive's benefit are in an amount that would result in any portion of such "parachute payments" not being deductible by reason of section 280G of the Code, then the Executive shall have an obligation to pay the Company upon demand an amount equal to the sum of (i) the excess of the aggregate "parachute payments" paid to or for the Executive's benefit over the aggregate "parachute payments" that could have been paid to or for the Executive's benefit without any portion of such "parachute payments" not being deductible by reason of section 280G of the Code; and (ii) interest on the amount set forth in clause (i) of this sentence at the rate provided in section 1274(b)(2)(B) of the Code from the date of the Executive's receipt of such excess until the date of such payment.
12.3 The payments and other items provided for in Section 12.1 (other than Section 12.1(c)) hereof shall be made not later than the fifteenth (15th) day following the date of termination or the date of exercise by Executive of any of Executive's rights hereunder; provided, however, that if the amounts of such payments, and the limitation on such payments set forth in Section 12.2 hereof, cannot be finally determined on or before such day, the Company shall pay to the provisions Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the date of termination. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in section 1274(b)(2)(B) of the Code). At the time that payments are made under this Section 4.112.3, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).
b. 12.4 The Company also shall pay to the Executive all legal and accounting fees and expenses incurred by the Executive as a result of a termination which entitles the Executive to the Change of Control Payments (including all such fees and expenses, if any, incurred in disputing any such termination or in seeking in good faith to obtain or enforce any benefit or right provided by this Agreement or in connection with any tax audit or proceeding to the extent attributable to the application of section 4999 of the Code to any payment or benefit provided hereunder). Such payments shall be made within fifteen (15) business days after delivery of the Executive's written requests for payment accompanied with such evidence of fees and expenses incurred as the Company reasonably may require.
12.5 For purposes of this Agreement, the term following terms shall have the meanings indicated below:
(i) A "Change in Control" shall meanbe deemed to have occurred if the conditions set forth in any one of the following paragraphs shall have been satisfied:
(I) any "person" (as such term is used in Section 13(d) and 14(d) of the Exchange Act, other than Xxxxxx Xxxxxxxxxx or any affiliate of Xxxxxx Xxxxxxxxxx, the Company, a subsidiary of the Company or any Company Executive benefit plan (including its trustee), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly of securities of the Company representing 50.01 percent or more of the combined voting power of the Company's then outstanding securities;
(II) during any period of two consecutive years (not including any period prior to the execution of this Agreement) the individuals who, at the beginning of such period, constitute the Board cease, for any reason other than death, to constitute at least a majority thereof, unless each director who was not a director at the beginning of such period was elected by, or on the recommendation of, at least two-thirds of the directors at the beginning of such period; or
(III) the occurrence of a transaction requiring stockholder approval for the acquisition of the Company by an entity other than the Company or a subsidiary of the Company through purchase of assets, or by merger, or otherwise.
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Change in Control of the Company. a. Unless otherwise provided in this Agreement, in If the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment Executive’s employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof Cause or (y) by the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(cduring the six (6) month period immediately following the Change in Control of the Company, then in lieu of any amounts otherwise payable under Sections 6(e) or 6(f) hereof, the Company Executive shall be entitled to: the Accrued Obligations, payable as soon as reasonably practicable following the Termination Date; the Termination Year Bonus, payable within four (14) pay to months after the Executive any unpaid Base Salary through last day of the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such terminationin which the Termination Date occurs; the Severance Amount, at such time as payable in equal monthly installments during the Incentive Compensation otherwise would have Severance Period commencing with the first calendar month immediately following the month in which the employment of Executive has been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount terminated; continuation of the Executive's Base Salary for health benefits provided to Executive and his covered dependants under the six (6 months preceding such termination. If, during the Term of Employment, any Change Company health plans as in Control should occur and, prior effect from time to the first anniversary of time after the date of such termination with the Change in ControlCompany paying all premiums until the earlier of: (A) eighteen (18) months following the Termination Date, either or (xB) the Term date the Executive commences employment with any person or entity and, thus, is eligible for health insurance benefits; provided, however, that as a condition of Employment is terminated by continuation of such benefits, the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit may require the Executive to dispose of elect to continue his health insurance pursuant to COBRA; and all Options granted to Executive to purchase the shares of Company’s common stock underlying such Stock Options in that Change in Control transaction on substantially prior to or after the same terms date of this Agreement shall immediately vest and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three nine (9) months from the date of the termination; provided, however, such period of nine (9) months shall not exceed the earlier of the latest date upon which such options could have expired by their original terms under any termination circumstances or the tenth anniversary of the original date of grant of such options. Section 280G Additional Payments by the Company. Anything in this Agreement to the contrary notwithstanding, in the event that the Executive shall become entitled to payments and/or benefits provided by this Agreement or any other amounts in the “nature of compensation” (whether pursuant to the terms of any plan, arrangement or agreement with the Company, any person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”) or any person affiliated with the Company or such person) as a result of such change in ownership or effective control (collectively, the “Company Payments”), and such Company Payments will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority), the Company shall pay to the Executive at the time specified in clause (iv) hereof an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Company Payments and any U.S. federal, state, and local income or payroll tax upon the Gross-Up Payment provided for by this clause (i), but before deduction for any U.S. federal, state, and local income or payroll tax on the Company Payments, shall be equal to the Company Payment. For purposes of determining whether any of the Company Payments and Gross-Up Payment (collectively, the “Total Payments”) will be subject to the Excise Tax and the amount of such Excise Tax, (A) the Total Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that, in the opinion of the Company’s independent certified public accountants appointed prior to any change in ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel selected by such accountants or the Company (the “Accountants”) such Total Payments (in whole or in part): (1) do not constitute “parachute payments,” (2) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the “base amount” or (3) are otherwise not subject to the Excise Tax, and (B) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. In the event that the Accountants are serving as accountants or auditors for the individual, entity or group effecting the change in control (within the meaning of Section 280G of the Code), the Executive may appoint another nationally recognized accounting firm to make the determinations hereunder (which accounting firm shall then be referred to as the “Accountants” hereunder). All determinations hereunder shall be made by the Accountants which shall provide detailed supporting calculations both to the Company and the Executive at such time as it is requested by the Company or the Executive. The determination of the Accountants shall be final and binding upon the Company and the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay U.S. federal income taxes at the highest marginal rate of U.S. federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's employment ’s residence for the calendar year in which the Company Payments are to be made, net of the maximum reduction in U.S. federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. In the event that the Excise Tax is subsequently determined by the Accountants to be less than the amount taken into account hereunder at the time the Gross-Up Payment is made, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the prior Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and U.S. federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax or a U.S. federal, state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event that any portion of the Gross-Up Payment to be refunded to the Company has been paid to any U.S. federal, state and local tax authority, repayment thereof (and related amounts) shall not be required until actual refund or credit of such portion has been made to the Executive, and interest payable to the Company shall not exceed the interest received or credited to the Executive by such tax authority for the period it held such portion. The Executive and the Company shall mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if the Executive’s claim for refund or credit is denied. In the event that the Excise Tax is later determined by the Accountants or the Internal Revenue Service (or other taxing authority) to exceed the amount taken into account hereunder at the time the Gross-Up Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest or penalties payable with respect to such excess) promptly after the amount of such excess is finally determined. The Gross-Up Payment or portion thereof provided for in clause (iii) shall be paid not later than the thirtieth (30th) day following an event occurring which subjects the Executive to the Excise Tax; provided, however, that if the amount of such Gross-Up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Accountants, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to clause (iii), as soon as the amount thereof can reasonably be determined, but in no event later than the ninetieth (90th) day after the occurrence of the event subjecting the Executive to the Excise Tax. Subject to clauses (iii) and (viii) hereof, in the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date Executive, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of termination, subject, however, to the provisions of Section 4.1Code).
b. For purposes of this Agreement, the term "Change in Control" shall mean:
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