Change in Control; Potential Change in Control. (a) A "Change in Control" of the Company shall be deemed to have occurred if: (1) any "person," as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than the Company or any corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of stock of the Company), 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 25% or more of the combined voting power of the Company's then outstanding securities; (2) there is elected 35% or more of the members of the Board of Directors of the Company without the approval of the nomination of such members by a majority of the Board serving prior to that election or, if the election was by shareholders, without the Board's approval of the nomination having been included in the Company's proxy statement for that shareholder meeting; (3) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (i) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent more than 75% of the combined voting power of the voting securities of the Company, or such surviving entity, outstanding immediately after such merger or consolidation; or (ii) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no "person" (as defined above) acquires more than 25% of the combined voting power of the Company's then-outstanding securities; or (4) The shareholders of the Company approve an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. (b) If: (i) any Change in Control of the Company occurs while this Agreement is effective, and (ii) after Xxxx X. Xxxxxxxxx ("Kostusiak") has given notice to the Company or the Company (acting upon a determination of its Board of Directors) has given notice to Kostusiak, in either case, to the effect that the six month period called for by Section 7(b) of the employment agreement between the Company and Kostusiak, dated September 27, 2000 (the "Kostusiak Agreement"), has begun to run, Executive gives notice to the Company or the Company (acting upon a determination of its Board of Directors) gives notice to Executive, in either case to the effect that the six month period called for by this Section 7(b) shall begin to run, and (iii) after Kostusiak's employment has been terminated by Kostusiak or by the Company (other than for Kostusiak's death or disability) within six months after the date the notice provided for in Section 7(b)(ii) of the Kostusiak Agreement is received (in Kostusiak's case, the termination being effected by Kostusiak giving notice within that six month period, effective within 30 days after the notice is given, that his employment is terminated), regardless of the reason, if any, and regardless which party gave the notice provided for in Section 7(b)(ii) of the Kostusiak Agreement, Executive's employment is terminated by Executive or by the Company (other than for Executive's death or disability) within six months after the date the notice provided for in (ii) above is received (in Executive's case the termination being effected by Executive giving notice within that six month period, effective within 30 days after the notice is given, that his employment is terminated), regardless the reason, if any, and regardless which party gave the notice provided for in (ii) above, then the Company shall, upon receipt of said notice, immediately pay, transfer, and provide to Executive the following amounts, benefits, and assets: (1) The Company shall pay to Executive the sum of Executive's full base salary through the effective date of termination of his employment at the rate in effect at the time of termination or at the time the Change in Control occurs, whichever is higher, and an amount equal to the amount of any bonus which has been earned by him but not yet paid to him. These two amounts shall be paid to Executive in a lump sum within five days following the effective date of termination, or in the case of a bonus which is not readily calculable at that time, within five days after the bonus can be calculated. (2) The Company shall pay to Executive an amount equal to 3 times the highest total cash compensation (including base salary and bonuses) paid to Executive in any of the Company's last three fiscal years completed prior to such termination. This amount shall be paid to Executive as provided in the last sentence of subsection (1) above. (3) The Company shall pay to Executive an amount equal to the total amounts that would be expended for the benefits to be provided Executive under Section 3 above if Executive had continued to be an employee of the Company for 3 years after the termination (such as, but not limited to, the life, accident, disability, health and travel insurance, and other benefits in effect for Executive at the time notice of termination is given or at the time the Change in Control occurs, whichever may be higher in the case of each benefit). This amount shall be paid to Executive as provided in the last sentence of subsection (1) above either in cash or in the form of an annuity contract issued by an independent insurance company licensed to do business in New York that will provide payment of all such total amounts. (4) All options and other rights that Executive may hold to purchase or otherwise acquire Common Stock of the Company shall immediately become exercisable in full for the total number of shares that are or might become purchasable thereunder, in each case without further condition or limitation except the giving of notice of exercise and the payment of the purchase price thereunder (but without amendment of the plan under which they were issued). At his discretion, Executive may elect to surrender to the Company his rights in any such options and rights held by him and, upon that surrender, the Company shall pay him an amount in cash equal to the aggregate spread between the exercise prices of all those options and rights and the value of the Common Stock purchasable thereunder (or of any other security into which the Common Stock has been exchanged or converted) as of the date of the termination of employment, the value to be determined by the reported last sale price of the Common Stock or that other security (or the mean between the reported last bid and asked prices) on that date on NASDAQ (or, if it is not NASDAQ, on whatever may then be the principal exchange or quotation system on which the Company's Common Stock or that other security is traded at that time). (5) The Company shall transfer to Executive any and all of its right, title, and interest in and to all Company life insurance policies on Executive's life (except with respect to Nationwide Insurance Policy No. N100169270 (the "Nationwide Policy")) (and upon that transfer, Executive shall be deemed to have released the Company from any and all obligations it then owes to him to maintain and pay premiums on those policies and any obligation on the part of the Company to repurchase common stock of the Company from Executive or his estate using the proceeds of such life insurance policies shall be of no further force or effect). (6) In addition to the amounts specified in clauses (1) through (5) of this paragraph (b), the Company shall pay to Executive, at the same time as those amounts are paid, an additional amount which, after taking into account all federal, state, and local income and excise taxes that Executive is required to pay with respect to receipt of the additional amount under this clause (6), will render the net after-tax payment to Executive under this clause (6) equal to the sum of: (A) all federal, state, and local excise taxes that Executive is required to pay with respect to the payments made pursuant to clauses (1) through (5) above; and (B) all federal, state, and local income and excise taxes that Executive is required to pay with respect to the payment made pursuant to this clause (6). The foregoing amounts of federal, state, and local income and excise taxes shall be determined initially by a nationally recognized law firm or firm of independent public accountants retained by Executive at his expense or, at Executive's option, by a law firm or firm of independent public accountants at the Company's expense, and such determination and the basis therefor shall be furnished in writing to Executive and the Company. Payment shall be made by the Company in accordance with that initial determination regardless whether there is a dispute over the accuracy thereof. If either party disputes that initial determination the matter shall promptly be referred to a nationally recognized law firm or firm of independent public accountants selected by the Executive (which firm shall not have been involved in the initial determination), and Executive and the Company shall promptly furnish to that firm such information as it reasonably requests. The Company shall make such additional payment to Executive or Executive shall refund to the Company, as the case may be, in accordance with the latter firm's determination. The fees and expenses of that firm shall be borne by the Company. Notwithstanding any provision in this Agreement or the N-CDR Agreement to the contrary, at no time may the aggregate value of the payments and benefits to be provided to Executive pursuant to Sections 7(b)(iii)(2) through 7(b)(iii)(6) hereof and Section 3 of the N-CDR Agreement exceed 2.23% of the then current market capitalization of the Company (the "Cap Amount"). If the aggregate value of such payments and benefits to be provided to Executive exceed the Cap Amount, Executive shall, subject to the Cap Amount, determine which payments or benefits shall be reduced and the amount of each applicable reduction.
Appears in 1 contract
Change in Control; Potential Change in Control. (a) A "Change in Control" of the Company shall be deemed to have occurred if:
(1) any "person," as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than the Company or any corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of stock of the Company), 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 25% or more of the combined voting power of the Company's then outstanding securities;
(2) there is elected 35% or more of the members of the Board of Directors of the Company without the approval of the nomination of such members by a majority of the Board serving prior to that election or, if the election was by shareholders, without the Board's approval of the nomination having been included in the Company's proxy statement for that shareholder meeting;
(3) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (i) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent more than 75% of the combined voting power of the voting securities of the Company, or such surviving entity, outstanding immediately after such merger or consolidation; or (ii) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no "person" (as defined above) acquires more than 25% of the combined voting power of the Company's then-outstanding securities; or
(4) The shareholders of the Company approve an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets.
(b) If:
(i) any Change in Control of the Company occurs while this Agreement is effective, and
(ii) after Xxxx X. Xxxxxxxxx ("Kostusiak") has given notice to the Company or the Company (acting upon a determination of its Board of Directors) has given notice to Kostusiak, in either case, to the effect that the six month period called for by Section 7(b) of the employment agreement between the Company and Kostusiak, dated September 27, 2000 (the "Kostusiak Agreement"), has begun to run, Executive gives notice to the Company or the Company (acting upon a determination of its Board of Directors) gives notice to Executive, in either case to the effect that the six month period called for by this Section 7(b) shall begin to run, and
(iii) after Kostusiak's employment has been terminated by Kostusiak or by the Company (other than for Kostusiak's death or disability) within six months after the date the notice provided for in Section 7(b)(ii) of the Kostusiak Agreement is received (in Kostusiak's case, the termination being effected by Kostusiak giving notice within that six month period, effective within 30 days after the notice is given, that his employment is terminated), regardless of the reason, if any, and regardless which party gave the notice provided for in Section 7(b)(ii) of the Kostusiak Agreement, Executive's employment is terminated by Executive or by the Company (other than for Executive's death or disability) within six months after the date the notice provided for in (ii) above is received (in Executive's case the termination being effected by Executive giving notice within that six month period, effective within 30 days after the notice is given, that his employment is terminated), regardless the reason, if any, and regardless which party gave the notice provided for in (ii) above, then the Company shall, upon receipt of said notice, immediately pay, transfer, and provide to Executive the following amounts, benefits, and assets:
(1) The Company shall pay to Executive the sum of Executive's full base salary through the effective date of termination of his employment at the rate in effect at the time of termination or at the time the Change in Control occurs, whichever is higher, and an amount equal to the amount of any bonus which has been earned by him but not yet paid to him. These two amounts shall be paid to Executive in a lump sum within five days following the effective date of termination, or in the case of a bonus which is not readily calculable at that time, within five days after the bonus can be calculated.
(2) The Company shall pay to Executive an amount equal to 3 times the highest total cash compensation (including base salary and bonuses) paid to Executive in any of the Company's last three fiscal years completed prior to such termination. This amount shall be paid to Executive as provided in the last sentence of subsection (1) above.
(3) The Company shall pay to Executive an amount equal to the total amounts that would be expended for the benefits to be provided Executive under Section 3 above if Executive had continued to be an employee of the Company for 3 years after the termination (such as, but not limited to, the life, accident, disability, health and travel insurance, and other benefits in effect for Executive at the time notice of termination is given or at the time the Change in Control occurs, whichever may be higher in the case of each benefit). This amount shall be paid to Executive as provided in the last sentence of subsection (1) above either in cash or in the form of an annuity contract issued by an independent insurance company licensed to do business in New York that will provide payment of all such total amounts.
(4) All options and other rights that Executive may hold to purchase or otherwise acquire Common Stock of the Company shall immediately become exercisable in full for the total number of shares that are or might become purchasable thereunder, in each case without further condition or limitation except the giving of notice of exercise and the payment of the purchase price thereunder (but without amendment of the plan under which they were issued). At his discretion, Executive may elect to surrender to the Company his rights in any such options and rights held by him and, upon that surrender, the Company shall pay him an amount in cash equal to the aggregate spread between the exercise prices of all those options and rights and the value of the Common Stock purchasable thereunder (or of any other security into which the Common Stock has been exchanged or converted) as of the date of the termination of employment, the value to be determined by the reported last sale price of the Common Stock or that other security (or the mean between the reported last bid and asked prices) on that date on NASDAQ (or, if it is not NASDAQ, on whatever may then be the principal exchange or quotation system on which the Company's Common Stock or that other security is traded at that time).
(5) The Company shall transfer to Executive any and all of its right, title, and interest in and to all Company life insurance policies on Executive's life (except with respect to Nationwide Insurance Policy No. N100169270 N100169260 (the "Nationwide Policy")) (and upon that transfer, Executive shall be deemed to have released the Company from any and all obligations it then owes to him to maintain and pay premiums on those policies and any obligation on the part of the Company to repurchase common stock of the Company from Executive or his estate using the proceeds of such life insurance policies shall be of no further force or effect).
(6) In addition to the amounts specified in clauses (1) through (5) of this paragraph (b), the Company shall pay to Executive, at the same time as those amounts are paid, an additional amount which, after taking into account all federal, state, and local income and excise taxes that Executive is required to pay with respect to receipt of the additional amount under this clause (6), will render the net after-tax payment to Executive under this clause (6) equal to the sum of:
(A) all federal, state, and local excise taxes that Executive is required to pay with respect to the payments made pursuant to clauses (1) through (5) above; and
(B) all federal, state, and local income and excise taxes that Executive is required to pay with respect to the payment made pursuant to this clause (6). The foregoing amounts of federal, state, and local income and excise taxes shall be determined initially by a nationally recognized law firm or firm of independent public accountants retained by Executive at his expense or, at Executive's option, by a law firm or firm of independent public accountants at the Company's expense, and such determination and the basis therefor shall be furnished in writing to Executive and the Company. Payment shall be made by the Company in accordance with that initial determination regardless whether there is a dispute over the accuracy thereof. If either party disputes that initial determination the matter shall promptly be referred to a nationally recognized law firm or firm of independent public accountants selected by the Executive (which firm shall not have been involved in the initial determination), and Executive and the Company shall promptly furnish to that firm such information as it reasonably requests. The Company shall make such additional payment to Executive or Executive shall refund to the Company, as the case may be, in accordance with the latter firm's determination. The fees and expenses of that firm shall be borne by the Company. Notwithstanding any provision in this Agreement or the N-CDR Agreement to the contrary, at no time may the aggregate value of the payments and benefits to be provided to Executive pursuant to Sections 7(b)(iii)(2) through 7(b)(iii)(6) hereof and Section 3 of the N-CDR Agreement exceed 2.232.77% of the then current market capitalization of the Company (the "Cap Amount"). If the aggregate value of such payments and benefits to be provided to Executive exceed the Cap Amount, Executive shall, subject to the Cap Amount, determine which payments or benefits shall be reduced and the amount of each applicable reduction.
Appears in 1 contract
Change in Control; Potential Change in Control. (a) A "Change in Control" of the Company shall be deemed to have occurred ifif no Change in Control occurred during the effectiveness of the Employment Agreement and:
(1) any "person," as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than the Company or any corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of stock of the Company), 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 25% or more of the combined voting power of the Company's then outstanding securities;
(2) there is elected 35% or more of the members of the Board of Directors of the Company without the approval of the nomination of such members by a majority of the Board serving prior to that election or, if the election was by shareholders, without the Board's approval of the nomination having been included in the Company's proxy statement for that shareholder meeting;
(3) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (i) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent more than 75% of the combined voting power of the voting securities of the Company, or such surviving entity, outstanding immediately after such merger or consolidation; or (ii) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no "person" (as defined above) acquires more than 25% of the combined voting power of the Company's then-outstanding securities; or
(4) The shareholders of the Company approve an agreement for the sale or disposition by the Company of and all or substantially all of the Company's assets.
(b) If:
(i) any Change in Control of the Company occurs while this Agreement is effective, and
(ii) after Xxxx X. Xxxxxxxxx ("Kostusiak") has given notice to the Company or the Company (acting upon a determination of its Board of Directors) has given notice to Kostusiak, in either case, to the effect that the six month period called for by Section 7(b) of the employment agreement between the Company and Kostusiak, dated September 27, 2000 (the "Kostusiak Agreement"), has begun to run, Executive gives notice to the Company or the Company (acting upon a determination of its Board of Directors) gives notice to Executive, in either case to the effect that the six 6 month period called for by this Section 7(b20(b) shall begin to run, and
(iii) after Kostusiak's employment has been terminated by Kostusiak or by the Company (other than for Kostusiak's death or disability) within six months after the date the notice provided for in Section 7(b)(ii) of the Kostusiak Agreement is received (in Kostusiak's case, the termination being effected by Kostusiak giving notice within that six month period, effective within 30 days after the notice is given, that his employment is terminated), regardless of the reason, if any, and regardless which party gave the notice provided for in Section 7(b)(ii) of the Kostusiak Agreement, Executive's employment is consulting services are terminated by Executive or by the Company (other than for Executive's death or disability) within six 6 months after the date the notice provided for in (ii) above is received (in Executive's case the termination being effected by Executive giving notice within that six 6 month period, effective within 30 days after the notice is given, that his employment is terminatedconsulting services are terminated to the extent permitted under Section 4 above), regardless the reason, if any, and regardless which party gave the notice provided for in (ii) above, then the Company shall, upon receipt of said notice, immediately pay, transfer, and provide to Executive the following amounts, benefits, and assets:
(1) The Company shall pay to Executive the sum of Executive's full base salary minimum consulting fees through the effective date of termination of his employment consulting services at the rate in effect at the time of termination or at the time the Change in Control occurs, whichever is higher, and an amount equal to the amount of any bonus which has been earned by him but not yet paid to him. These two amounts shall be paid to Executive in a lump sum within five days following the effective date of termination, or in the case of a bonus which is not readily calculable at that time, within five 5 days after the bonus can be calculated.
(2) The Company shall pay to Executive an amount equal to 3 times the highest total cash compensation (including any base salary salary, non-competition compensation, bonuses, and bonusesconsulting fees) paid to Executive in any of the Company's last three fiscal years completed prior to such termination. This amount shall be paid to Executive as provided in the last sentence of subsection (1) above.
(3) The Company shall pay to Executive an amount equal to the total amounts that would be expended for the benefits to be provided Executive under Section 3 above if Executive had continued to be an employee of the Company for 3 years after the termination (such as, but not limited to, the life, accident, disability, health and travel insurance, and other benefits in effect for Executive at the time notice of termination is given or at the time the Change in Control occurs, whichever may be higher in the case of each benefit). This amount shall be paid to Executive as provided in the last sentence of subsection (1) above either in cash or in the form of an annuity contract issued by an independent insurance company licensed to do business in New York that will provide payment of all such total amounts.
(4) All options and other rights that Executive may hold to purchase or otherwise acquire Common Stock of the Company shall immediately become exercisable in full for the total number of shares that are or might become purchasable thereunder, in each case without further condition or limitation except the giving of notice of exercise and the payment of the purchase price thereunder (but without amendment of the plan under which they were issued). At his discretion, Executive may elect to surrender to the Company his rights in any such options and rights held by him and, upon that surrender, the Company shall pay him an amount in cash equal to the aggregate spread between the exercise prices of all those options and rights and the value of the Common Stock purchasable thereunder (or of any other security into which the Common Stock has been exchanged or converted) as of the date of the termination of employmentconsulting services, the value to be determined by the reported last sale price of the Common Stock or that other security (or the mean between the reported last bid and asked prices) on that date on NASDAQ (or, if it is not NASDAQ, on whatever may then be the principal exchange or quotation system on which the Company's Common Stock or that other security is traded at that time).
(54) The Company shall transfer to Executive any and all of its right, title, and interest in and to all Company life insurance policies on Executive's life (except with respect to Nationwide Insurance Policy No. N100169270 N100169260 (the "Nationwide Policy")) (and upon that transfer, Executive shall be deemed to have released the Company from any and all obligations it then owes to him to maintain and pay premiums on those policies and any obligation on the part of the Company to repurchase common stock of the Company from Executive or his estate using the proceeds of such life insurance policies shall be of no further force or effect).
(65) In addition to the amounts specified in clauses (1) through (54) of this paragraph (b), the Company shall pay to Executive, at the same time as those amounts are paid, an additional amount which, after taking into account all federal, state, and local income and excise taxes that Executive is required to pay with respect to receipt of the additional amount under this clause (65), will render the net after-tax payment to Executive under this clause (65) equal to the sum of:
(A) all federal, state, and local excise taxes that Executive is required to pay with respect to the payments made pursuant to clauses (1) through (54) above; and
(B) all federal, state, and local income and excise taxes that Executive is required to pay with respect to the payment made pursuant to this clause (65). The foregoing amounts of federal, state, and local income and excise taxes shall be determined initially by a nationally recognized law firm or firm of independent public accountants retained by Executive at his expense or, at Executive's option, by a law firm or firm of independent public accountants at the Company's expense, and such determination and the basis therefor shall be furnished in writing to Executive and the Company. Payment shall be made by the Company in accordance with that initial determination regardless whether there is a dispute over the accuracy thereof. If either party disputes that initial determination the matter shall promptly be referred to a nationally recognized law firm or firm of independent public accountants selected by the Executive (which firm shall not have been involved in the initial determination), and Executive and the Company shall promptly furnish to that firm such information as it reasonably requests. The Company shall make such additional payment to Executive or Executive shall refund to the Company, as the case may be, in accordance with the latter firm's determination. The fees and expenses of that firm shall be borne by the Company. Notwithstanding any provision in this N-CDR Agreement or the N-CDR Employment Agreement to the contrary, at no time may the aggregate value of the payments and benefits to be provided to Executive pursuant to Sections 7(b)(iii)(220(b)(iii)(2) through 7(b)(iii)(620(b)(iii)(6) hereof and Section 3 of the N-CDR Agreement exceed 2.232.77% of the then current market capitalization of the Company (the "Cap Amount"). If the aggregate value of such payments and benefits to be provided to Executive exceed the Cap Amount, Executive shall, subject to the Cap Amount, determine which payments or benefits shall be reduced and the amount of each applicable reduction.
Appears in 1 contract
Change in Control; Potential Change in Control. (a) A "Change in Control" of the Company shall be deemed to have occurred ifif no Change in Control occurred during the effectiveness of the Employment Agreement and:
(1) any "person," as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than the Company or any corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of stock of the Company), 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 25% or more of the combined voting power of the Company's then outstanding securities;
(2) there is elected 35% or more of the members of the Board of Directors of the Company without the approval of the nomination of such members by a majority of the Board serving prior to that election or, if the election was by shareholders, without the Board's approval of the nomination having been included in the Company's proxy statement for that shareholder meeting;
(3) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (i) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent more than 75% of the combined voting power of the voting securities of the Company, or such surviving entity, outstanding immediately after such merger or consolidation; or (ii) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no "person" (as defined above) acquires more than 25% of the combined voting power of the Company's then-outstanding securities; or
(4) The shareholders of the Company approve an agreement for the sale or disposition by the Company of and all or substantially all of the Company's assets.
(b) If:
(i) any Change in Control of the Company occurs while this Agreement is effective, and
(ii) after Xxxx X. Xxxxxxxxx ("KostusiakXxxxxxxxx") has given notice to the Company or the Company (acting upon a determination of its Board of Directors) has given notice to Kostusiak, in either case, case to the effect that the six month period called for by Section 7(b20(b) of the Non-Competition, Disability and Retirement Agreement attached as Exhibit A to the employment agreement between the Company and Kostusiak, dated September 27September, 2000 (the "Kostusiak N-CDR Agreement"), has begun to run, Executive gives notice to the Company or the Company (acting upon a determination of its Board of Directors) gives notice to Executive, in either case to the effect that the six 6 month period called for by this Section 7(b20(b) shall begin to run, and
(iii) after Kostusiak's employment has consulting services have been terminated by Kostusiak or by the Company (other than for Kostusiak's death or disability) within six months after the date the notice provided for in Section 7(b)(ii20(b)(ii) of the Kostusiak N-CDR Agreement is received (in Kostusiak's case, case the termination being effected by Kostusiak giving notice within that six month period, effective within 30 days after the notice is given, that his employment is consulting services are terminated), regardless of the reason, if any, and regardless which party gave the notice provided for in Section 7(b)(ii20(b)(ii) of the Kostusiak N- CDR Agreement, Executive's employment is consulting services are terminated by Executive or by the Company (other than for Executive's death or disability) within six 6 months after the date the notice provided for in (ii) above is received (in Executive's case the termination being effected by Executive giving notice within that six 6 month period, effective within 30 days after the notice is given, that his employment is terminatedconsulting services are terminated to the extent permitted under Section 4 above), regardless the reason, if any, and regardless which party gave the notice provided for in (ii) above, then the Company shall, upon receipt of said notice, immediately pay, transfer, and provide to Executive the following amounts, benefits, and assets:
(1) The Company shall pay to Executive the sum of Executive's full base salary minimum consulting fees through the effective date of termination of his employment consulting services at the rate in effect at the time of termination or at the time the Change in Control occurs, whichever is higher, and an amount equal to the amount of any bonus which has been earned by him but not yet paid to him. These two amounts shall be paid to Executive in a lump sum within five days following the effective date of termination, or in the case of a bonus which is not readily calculable at that time, within five 5 days after the bonus can be calculated.
(2) The Company shall pay to Executive an amount equal to 3 times the highest total cash compensation (including any base salary salary, non-competition compensation, bonuses, and bonusesconsulting fees) paid to Executive in any of the Company's last three fiscal years completed prior to such termination. This amount shall be paid to Executive as provided in the last sentence of subsection (1) above.
(3) The Company shall pay to Executive an amount equal to the total amounts that would be expended for the benefits to be provided Executive under Section 3 above if Executive had continued to be an employee of the Company for 3 years after the termination (such as, but not limited to, the life, accident, disability, health and travel insurance, and other benefits in effect for Executive at the time notice of termination is given or at the time the Change in Control occurs, whichever may be higher in the case of each benefit). This amount shall be paid to Executive as provided in the last sentence of subsection (1) above either in cash or in the form of an annuity contract issued by an independent insurance company licensed to do business in New York that will provide payment of all such total amounts.
(4) All options and other rights that Executive may hold to purchase or otherwise acquire Common Stock of the Company shall immediately become exercisable in full for the total number of shares that are or might become purchasable thereunder, in each case without further condition or limitation except the giving of notice of exercise and the payment of the purchase price thereunder (but without amendment of the plan under which they were issued). At his discretion, Executive may elect to surrender to the Company his rights in any such options and rights held by him and, upon that surrender, the Company shall pay him an amount in cash equal to the aggregate spread between the exercise prices of all those options and rights and the value of the Common Stock purchasable thereunder (or of any other security into which the Common Stock has been exchanged or converted) as of the date of the termination of employmentconsulting services, the value to be determined by the reported last sale price of the Common Stock or that other security (or the mean between the reported last bid and asked prices) on that date on NASDAQ (or, if it is not NASDAQ, on whatever may then be the principal exchange or quotation system on which the Company's Common Stock or that other security is traded at that time).
(54) The Company shall transfer to Executive any and all of its right, title, and interest in and to all Company life insurance policies on Executive's life (except with respect to Nationwide Insurance Policy No. N100169270 (the "Nationwide Policy")) (and upon that transfer, Executive shall be deemed to have released the Company from any and all obligations it then owes to him to maintain and pay premiums on those policies and any obligation on the part of the Company to repurchase common stock of the Company from Executive or his estate using the proceeds of such life insurance policies shall be of no further force or effect).
(65) In addition to the amounts specified in clauses (1) through (54) of this paragraph (b), the Company shall pay to Executive, at the same time as those amounts are paid, an additional amount which, after taking into account all federal, state, and local income and excise taxes that Executive is required to pay with respect to receipt of the additional amount under this clause (65), will render the net after-tax payment to Executive under this clause (65) equal to the sum of:
(A) all federal, state, and local excise taxes that Executive is required to pay with respect to the payments made pursuant to clauses (1) through (54) above; and
(B) all federal, state, and local income and excise taxes that Executive is required to pay with respect to the payment made pursuant to this clause (65). The foregoing amounts of federal, state, and local income and excise taxes shall be determined initially by a nationally recognized law firm or firm of independent public accountants retained by Executive at his expense or, at Executive's option, by a law firm or firm of independent public accountants at the Company's expense, and such determination and the basis therefor shall be furnished in writing to Executive and the Company. Payment shall be made by the Company in accordance with that initial determination regardless whether there is a dispute over the accuracy thereof. If either party disputes that initial determination the matter shall promptly be referred to a nationally recognized law firm or firm of independent public accountants selected by the Executive (which firm shall not have been involved in the initial determination), and Executive and the Company shall promptly furnish to that firm such information as it reasonably requests. The Company shall make such additional payment to Executive or Executive shall refund to the Company, as the case may be, in accordance with the latter firm's determination. The fees and expenses of that firm shall be borne by the Company. Notwithstanding any provision in this N-CDR Agreement or the N-CDR Employment Agreement to the contrary, at no time may the aggregate value of the payments and benefits to be provided to Executive pursuant to Sections 7(b)(iii)(220(b)(iii)(2) through 7(b)(iii)(620(b)(iii)(6) hereof and Section 3 of the N-CDR Agreement exceed 2.23% of the then current market capitalization of the Company (the "Cap Amount"). If the aggregate value of such payments and benefits to be provided to Executive exceed the Cap Amount, Executive shall, subject to the Cap Amount, determine which payments or benefits shall be reduced and the amount of each applicable reduction.
Appears in 1 contract
Change in Control; Potential Change in Control. (ai) A "Change No benefits shall be payable hereunder unless there shall have been a change in Control" control of the Company Company, as set forth below. For purposes of this Agreement, a “change in control of the Company” shall be deemed to have occurred if:
(1a) any "“person," ” as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”) (other than the Company Company, any trustee or other fiduciary holding securities under an employee benefit plan of the Company, or any corporation company owned, directly or indirectly, by the shareholders stockholders of the Company in substantially the same proportions as their ownership of stock of the Company), 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 2520% or more of the combined voting power of the Company's ’s then outstanding securities;
(2b) there is elected 35% or more during any period of two consecutive years, individuals who at the members beginning of such period constituted a majority of the Board of Directors cease for any reason to constitute a majority thereof unless the nomination or election of such new directors was approved by a vote of at least two-thirds of the Company without directors then still in office who were directors at the approval of the nomination beginning of such members by a majority of the Board serving prior to that election or, if the election was by shareholders, without the Board's approval of the nomination having been included in the Company's proxy statement for that shareholder meetingperiod;
(3c) the shareholders stockholders of the Company approve a merger or consolidation of the Company with any other corporationcompany or statutory plan of exchange involving the Company (“Merger”), other than (i1) a merger or consolidation Merger 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) more than 7550% of the combined voting power of the voting securities of the Company, Company or such surviving entity, entity outstanding immediately after such merger or consolidation; the Merger or (ii2) a merger or consolidation Merger effected to implement a recapitalization of the Company (or similar transaction) in which no "“person" ” (as defined abovehereinabove defined) acquires more than 2520% of the combined voting power of the Company's then-’s then outstanding securities; or
(4d) The shareholders the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale sale, lease, exchange or other transfer (in one transaction or a series of related transactions) or disposition by the Company of all or substantially all of the Company's ’s assets.
(b) If:
(i) any Change . Notwithstanding the foregoing, unless otherwise determined by the Board, no change in Control control of the Company occurs while this Agreement is effective, and
(ii) after Xxxx X. Xxxxxxxxx ("Kostusiak") has given notice to the Company or the Company (acting upon a determination of its Board of Directors) has given notice to Kostusiak, in either case, to the effect that the six month period called for by Section 7(b) of the employment agreement between the Company and Kostusiak, dated September 27, 2000 (the "Kostusiak Agreement"), has begun to run, Executive gives notice to the Company or the Company (acting upon a determination of its Board of Directors) gives notice to Executive, in either case to the effect that the six month period called for by this Section 7(b) shall begin to run, and
(iii) after Kostusiak's employment has been terminated by Kostusiak or by the Company (other than for Kostusiak's death or disability) within six months after the date the notice provided for in Section 7(b)(ii) of the Kostusiak Agreement is received (in Kostusiak's case, the termination being effected by Kostusiak giving notice within that six month period, effective within 30 days after the notice is given, that his employment is terminated), regardless of the reason, if any, and regardless which party gave the notice provided for in Section 7(b)(ii) of the Kostusiak Agreement, Executive's employment is terminated by Executive or by the Company (other than for Executive's death or disability) within six months after the date the notice provided for in (ii) above is received (in Executive's case the termination being effected by Executive giving notice within that six month period, effective within 30 days after the notice is given, that his employment is terminated), regardless the reason, if any, and regardless which party gave the notice provided for in (ii) above, then the Company shall, upon receipt of said notice, immediately pay, transfer, and provide to Executive the following amounts, benefits, and assets:
(1) The Company shall pay to Executive the sum of Executive's full base salary through the effective date of termination of his employment at the rate in effect at the time of termination or at the time the Change in Control occurs, whichever is higher, and an amount equal to the amount of any bonus which has been earned by him but not yet paid to him. These two amounts shall be paid to Executive in a lump sum within five days following the effective date of termination, or in the case of a bonus which is not readily calculable at that time, within five days after the bonus can be calculated.
(2) The Company shall pay to Executive an amount equal to 3 times the highest total cash compensation (including base salary and bonuses) paid to Executive in any of the Company's last three fiscal years completed prior to such termination. This amount shall be paid to Executive as provided in the last sentence of subsection (1) above.
(3) The Company shall pay to Executive an amount equal to the total amounts that would be expended for the benefits to be provided Executive under Section 3 above if Executive had continued to be an employee of the Company for 3 years after the termination (such as, but not limited to, the life, accident, disability, health and travel insurance, and other benefits in effect for Executive at the time notice of termination is given or at the time the Change in Control occurs, whichever may be higher in the case of each benefit). This amount shall be paid to Executive as provided in the last sentence of subsection (1) above either in cash or in the form of an annuity contract issued by an independent insurance company licensed to do business in New York that will provide payment of all such total amounts.
(4) All options and other rights that Executive may hold to purchase or otherwise acquire Common Stock of the Company shall immediately become exercisable in full for the total number of shares that are or might become purchasable thereunder, in each case without further condition or limitation except the giving of notice of exercise and the payment of the purchase price thereunder (but without amendment of the plan under which they were issued). At his discretion, Executive may elect to surrender to the Company his rights in any such options and rights held by him and, upon that surrender, the Company shall pay him an amount in cash equal to the aggregate spread between the exercise prices of all those options and rights and the value of the Common Stock purchasable thereunder (or of any other security into which the Common Stock has been exchanged or converted) as of the date of the termination of employment, the value to be determined by the reported last sale price of the Common Stock or that other security (or the mean between the reported last bid and asked prices) on that date on NASDAQ (or, if it is not NASDAQ, on whatever may then be the principal exchange or quotation system on which the Company's Common Stock or that other security is traded at that time).
(5) The Company shall transfer to Executive any and all of its right, title, and interest in and to all Company life insurance policies on Executive's life (except with respect to Nationwide Insurance Policy No. N100169270 (the "Nationwide Policy")) (and upon that transfer, Executive shall be deemed to have released occurred if (i) you are a member of a management group which first announces a proposal which constitutes a potential change in control (as defined in this Section 2) which proposal (including any modifications thereof) is ultimately successful or (ii) you acquire an equity interest in the entity which ultimately acquires the Company from any and all obligations it then owes pursuant to him to maintain and pay premiums on those policies and any obligation on the part transaction described in (i) of this paragraph. [Executive’s Name] , 20
(ii) For purposes of this Agreement, a “potential change in control” of the Company to repurchase common stock of the Company from Executive or his estate using the proceeds of such life insurance policies shall be of no further force or effect).
(6) In addition deemed to the amounts specified in clauses (1) through (5) of this paragraph (b), the Company shall pay to Executive, at the same time as those amounts are paid, an additional amount which, after taking into account all federal, state, and local income and excise taxes that Executive is required to pay with respect to receipt of the additional amount under this clause (6), will render the net after-tax payment to Executive under this clause (6) equal to the sum ofhave occurred if:
(Aa) all federalthe Company enters into an agreement, state, and local excise taxes that Executive is required to pay with respect to the payments made pursuant to clauses (1) through (5) above; andconsummation of which would result in the occurrence of a change in the control of the Company;
(Bb) all federal, state, and local income and excise taxes that Executive is required to pay with respect to the payment made pursuant to this clause any person (6). The foregoing amounts of federal, state, and local income and excise taxes shall be determined initially by a nationally recognized law firm or firm of independent public accountants retained by Executive at his expense or, at Executive's option, by a law firm or firm of independent public accountants at including the Company's expense, and such determination and the basis therefor shall be furnished ) publicly announces an intention to take or to consider taking actions which if consummated would constitute a change in writing to Executive and control of the Company. Payment shall be made by the Company in accordance with that initial determination regardless whether there is ;
(c) any person, other than a dispute over the accuracy thereof. If either party disputes that initial determination the matter shall promptly be referred to a nationally recognized law firm trustee or firm of independent public accountants selected by the Executive (which firm shall not have been involved in the initial determination), and Executive and the Company shall promptly furnish to that firm such information as it reasonably requests. The Company shall make such additional payment to Executive or Executive shall refund to the Company, as the case may be, in accordance with the latter firm's determination. The fees and expenses of that firm shall be borne by the Company. Notwithstanding any provision in this Agreement or the N-CDR Agreement to the contrary, at no time may the aggregate value of the payments and benefits to be provided to Executive pursuant to Sections 7(b)(iii)(2) through 7(b)(iii)(6) hereof and Section 3 of the N-CDR Agreement exceed 2.23% of the then current market capitalization other fiduciary holding securities under an employee benefit plan of the Company (or a company owned, directly or indirectly, by the "Cap Amount"stockholders of the Company in substantially the same proportions as their ownership of stock of the Company). If , who is or becomes the aggregate value beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the combined voting power of the Company’s then outstanding securities, increases his beneficial ownership of such payments and benefits securities by 3 percentage points or more over the percentage so owned by such person on the date hereof; or
(d) the Board adopts a resolution to be provided to Executive exceed the Cap Amounteffect that, Executive shallfor purposes of this Agreement, a potential change in control of the Company has occurred.
(iii) You agree that, subject to the Cap Amountterms and conditions of this Agreement, determine in the event of a potential change in control of the Company, you will remain in the employ of the Company until the earliest of (a) a date which payments is 270 days from the occurrence of such potential change in control of the Company, (b) the termination by you of your employment by reason of Disability as defined in Section 3(ii), or (c) the date on which you first become entitled under this Agreement to receive the benefits shall be reduced and the amount of each applicable reductionprovided in Section 4(iii) below.
Appears in 1 contract
Samples: Change of Control Agreement (Precision Castparts Corp)
