Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four (24) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the following: (i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and, (ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year. (b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable: (i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term; (ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and, (iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied. (c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 7 contracts
Samples: Executive Employment Agreement (Sugarmade, Inc.), Executive Employment Agreement (Eco Innovation Group, Inc.), Executive Employment Agreement (Cannabis Global, Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the If Executive’s employment hereunder is terminated terminates in a Change in Control Termination, this Agreement shall terminate without further obligations to Executive other than:
(i) payment of Accrued Obligations through the effective date of termination in a lump sum in cash within thirty (30) days of the effective date of termination;
(ii) payment of an amount equal to two times the sum of (A) Executive’s Annual Base Salary as in effect immediately prior to the date of termination (or immediately prior to the Change in Control Event, if greater) and (B) an amount equal to the highest annual average of the Annual Bonuses earned by the Executive for Good Reason performance in any two consecutive fiscal years in the last three completed fiscal years immediately preceding the fiscal year in which the date of termination occurs for which bonuses have been paid or by are payable (or the Company on account of its failure to renew last two fiscal years immediately preceding the Agreement fiscal year in accordance with Sections 1 and 5, or without Cause (other than on account which the date of the Executive’s death Change in Control Event occurs for which bonuses have been paid or Disabilityare payable, if greater), payable in each case within equal installments over a period consisting of twenty-four (24) months following a Change in Control, the Executive shall be entitled effective date of termination (such payments to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6the Company’s normal payroll practices) occurs (or if greater, to begin on the year in which the Change in Control occurs), which shall be paid within thirty (30) days first payroll date following the Termination Date; provided thatsixtieth (60th) day after termination of employment, if and with the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment first of such awards payments to include any regularly scheduled payments that are set forth in were missed pending the applicable award agreement and that are required under Section 409A shall remain in effectsixty (60) day waiting period; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended monthly payments (or reimbursement to constitute performance-based compensation under Section 162(m)(4)(CExecutive) of the Code shall remain outstanding cost of continuing coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) or similar state law (to be made no later than the last day of the month following the month for which the payment or reimbursement is made), for Executive and shall vest or be forfeited Executive’s spouse (if so elected) under the Company’s then existing medical, dental and prescription insurance plans for a period equal to the twelve months; provided that (A) Executive elects such continuing coverage in accordance with the terms requirements of each such plan (provided that during any period when Executive is eligible to receive such benefits under any other employer-provided plan or through any government-sponsored program such as Medicare, the benefits provided under this clause (iii) may be made secondary to those provided under such other plan) or (B) if Executive is not eligible to receive such coverage under COBRA for any month during such twelve month period, then the Company shall pay to Executive on the first day of such month an amount equal to that which the Company would otherwise have been obligated to pay to provide COBRA coverage for Executive and Executive’s spouse (if so elected) for such month. provided, however, that as conditions precedent to receiving the payments and benefits provided for in this Section 5(b) (other than payment of the Accrued Obligations), Executive shall first execute and deliver to the Company a general release agreement substantially in the form attached hereto as Exhibit A (a “Release”), and all rights of Executive thereunder or under applicable award agreementslaw to rescind or revoke the release shall have expired no later than the forty-five (45) days after the date of termination. If Executive fails to timely execute a Release, if all payments and benefits set forth in this Section 5(b) (other than the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any payment of the following after the Effective Date:Accrued Obligations) shall be forfeited.
Appears in 6 contracts
Samples: Employment Agreement (Air Methods Corp), Employment Agreement (Air Methods Corp), Employment Agreement (Air Methods Corp)
Change in Control Termination. (a) Notwithstanding any other provision contained hereinIf, if during the Employment Period, the Company shall terminate the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (and other than on account of upon the Executive’s death or Permanent Disability), or if the Executive shall terminate his employment for Good Reason, in each case either case, in connection with, or within twenty-four twelve (2412) months following following, a Change in ControlControl (any such termination of employment, a “Change in Control Termination”), the Executive Company shall be entitled to receive the Accrued Amounts and, subject have no further obligations to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the followingexcept as follows:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full termAccrued Benefits;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,Prorated Bonus;
(iii) the Company shall pay the Executive, on the 60th day following the date of termination, a lump sum amount equal to the product of two times (2x) the sum of (A) the Annual Base Salary (which shall be the Annual Base Salary prior to any reduction if the termination is for Good Reason because of a reduction in the Annual Base Salary) plus (B) the Target Bonus Amount; and
(iv) (A) all prior share Awards granted to Executive pursuant to any agreement(s) entered into prior to the Effective Date between Executive and the Company to the extent outstanding equity-based compensation awards other than stock options and stock appreciation rights as of the date of termination that are intended subject to constitute forfeiture on the date of termination shall fully vest and become non-forfeitable; provided, that any such Awards that are subject to performance-based compensation under vesting restrictions or conditions shall instead be treated in accordance with clause (C) of this Section 162(m)(4)(C4(d)(iv); (B) all outstanding Time Vesting LTIP Awards, if any, that are subject to forfeiture on the date of termination shall fully vest and become non-forfeitable, and (C) all outstanding Performance Vesting LTIP Awards, if any, that are subject to forfeiture on the date of termination shall fully and immediately vest and become non-forfeitable at the greater of (1) one hundred percent (100%) of the Code shall remain outstanding and shall vest number of shares of Common Stock granted pursuant to each such award, or be forfeited in accordance with (2) the terms performance level that has been achieved as of the applicable award agreements, if the applicable performance goals are satisfied.
(cdate of termination. The amounts payable or to be provided under this Section 4(d) For purposes of this Agreement, “Change shall be in Control” shall mean the occurrence lieu of any of the following after the Effective Date:amounts that would otherwise be paid or provided under Section 4(a), Section 4(b) and Section 4(c).
Appears in 5 contracts
Samples: Employment Agreement (Seaport Entertainment Group Inc.), Employment Agreement (Howard Hughes Holdings Inc.), Employment Agreement (Howard Hughes Corp)
Change in Control Termination. (aNotwithstanding Section 2.0(c) Notwithstanding any other provision contained hereinabove, if prior to but in connection with a Change in Control or during the Executive18 month period following a Change in Control: (i) Employee’s employment hereunder with the Employer or its successor is terminated by the Executive for Good Reason Employer or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or successor without Cause (other than on account by reason of the ExecutiveEmployer’s or its successors election and timely notice to terminate Employee’s employment at the end of the Initial Term or any Extension Term in accordance with Section 2.0(a) hereof or by reason of death or Disabilitydisability); or (ii) Employee terminates his employment with the Employer or its successor for Good Reason, in each case within twenty-four (24) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts andEmployee shall, subject to satisfaction of the Executive’s compliance with Release Condition described in Section 62.0(e) below, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the followingto:
(iA) all previously earned and accrued but unpaid Base Salary up to the date of such termination;
(B) severance pay in an amount equal to thirty-six (36) months of Base Salary paid in equal installments on the dates on which Employee’s Base Salary would otherwise have been paid in accordance with the Employer’s normal payroll dates in effect as of the date of Employee’s termination of employment as if Employee’s employment had continued for such period, provided that the delay of the payment of any such amounts pending satisfaction of the Release Condition described in Section 2.0(e) below shall be accumulated and paid on the first of the Employer’s first such scheduled payroll date following satisfaction of the Release Condition;
(C) a lump sum payment equal to two three (23) times the sum mean of payments under any short-term incentive, commission or annual bonus plan maintained by the Employer during each of the Executive’s Base Salary and Target Bonus for three calendar years prior to the year in which the Termination Date such termination occurs (or fewer calendar years if greaterthe Employee has not been a participant in the Employer’s annual or short-term incentive bonus plan for the entirety of each such three prior calendar years), payable as soon as practicable following the Employee’s termination of employment, provided that in no event shall such lump-sum payment occur later than March 15 of the year immediately preceding following the year in which the Change in Control such termination occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(iiD) a lump sum payment equal to the Executivefor such period of time that Employee or any of Employee’s Target Bonus dependents is eligible for the fiscal year in which the Termination Date and elects COBRA continuation coverage (as determined in accordance with Section 5.6) occurs (or if greater, 4980B of the year in which the Change in Control occursCode), which Employee’s cost of coverage shall be the employee contribution rate that would have applied if Employee had remained in active employment with the Employer during such period, provided that any amounts payable to Employee in connection with this Section 2.0(d)(iv) shall be paid within thirty (30) days following on an after tax basis on the Termination Datefirst regularly scheduled payroll date of each month for which such amount is payable; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.and
(bE) Notwithstanding the terms of any equity incentive plan or award agreementsannual bonus that is paid to employees who have worked for Employer for more than fifteen-years, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted provided Employer is profitable. All payments shall be subject to the Executive during the Employment Term shall become fully vested deductions for customary withholdings, including, without limitation, federal and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested state withholding taxes and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedpayroll taxes.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 4 contracts
Samples: Employment Agreement (Butler National Corp), Employment Agreement (Butler National Corp), Employment Agreement (Butler National Corp)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, Section 1.2 or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-twenty four (24) months following a Change in Control, then so long as Executive does not violate any term(s) of Section 5 or 6 of this Agreement and Executive executes and does not revoke a general release and waiver in the form attached hereto as Schedule A, Executive shall be entitled to receive the Accrued Amounts and, subject following (the “Change in Control Severance Benefits”):
4.5.1 An amount equal to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 sum of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two three (23) times the sum of the Executive’s Base Salary and Target Bonus as of the Termination Date, plus (ii) three (3) times the greater of (A) the amount of any cash bonus payable to Executive for the year in which the Termination Date occurs (provided that if Executive’s bonus for such year has not been determined as of the Termination Date, then the amount of the bonus shall be determined as if Executive earned 100% of the targeted performance bonus for such year, to the extent such target bonus exists) or if greater, (B) the amount of the cash bonus paid to Executive for services rendered during the year immediately preceding prior to the calendar year in which the Change in Control occursoccurred. Notwithstanding the foregoing, for purposes of the preceding sentence, if Executive’s employment is terminated by Executive for Good Reason because of a reduction in Executive’s Base Salary as described in Section 4.1.3(i), which Executive’s Base Salary shall be the Base Salary in effect immediately prior to such reduction. The amount described in this paragraph will be paid in one lump sum on the sixtieth (60th) day following the Termination Date; provided, however, that to the extent the amount described in this paragraph is subject to Section 409A of the Code and payment of such amount in a lump sum would violate Section 409A of the Code, then to the extent necessary to comply with Section 409A of the Code, the amount described in this paragraph will be paid in equal installments over a twelve (12) month period on the Company’s regular pay dates, commencing on the first regular pay date of the Company that occurs on or after the sixtieth (60th) day following the Termination Date.
4.5.2 Reimbursement from the Company for the cost of any applicable COBRA health and dental premiums for Executive and his dependents until the earlier to occur of (A) Executive finding new employment at which health and dental insurance is available to him, or (B) eighteen (18) months following the Termination Date, or (C) the date on which Executive’s and his dependents’ eligibility for COBRA coverage under the Company’s or an affiliate’s applicable benefit plans expires. The COBRA reimbursement payments will be made on the first day of each month, beginning on the first day of the first month on or after the sixtieth (60th) day following the Termination Date. In order to invoke a termination for Good Reason, Executive shall provide written notice to the Company of the existence of one or more of the conditions providing grounds for termination for Good Reason within ninety (90) days following the Executive’s knowledge of the initial existence of such condition or conditions, specifying in reasonable detail the conditions constituting Good Reason, and the Company shall have 30 days following receipt of such written notice (the “Cure Period”) during which it may remedy the condition. In the event that the Company fails to remedy the condition constituting Good Reason during the applicable Cure Period, the Executive’s “separation from service” (within the meaning of Section 409A of the Code) must occur, if at all, within thirty (30) days following such Cure Period in order for such termination as a result of such condition to constitute a termination for Good Reason. Should the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning Company learn that Executive has violated any of the second taxable year; and,
(ii) a lump sum payment equal to terms of Sections 5 or 6 of this Agreement during the Executive’s Target Bonus for the fiscal year period in which Executive was paid additional post-termination Base Salary or received any post-termination benefits, then the Termination Date (as determined in accordance with Section 5.6) occurs (Company may immediately cease such payments and cease or if greater, cause to be ceased the year in which the provision of any Change in Control occurs)Severance Benefits, which shall be paid within thirty and Executive must, on demand, repay to the Company the payments (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning or equivalent value of the second taxable year.
(bbenefits received by Executive) Notwithstanding for each month in which Executive breached any of the terms of Sections 5 or 6. The Company may, in its sole discretion, cease any equity incentive such payments or the provision of any such benefits, and release Executive, in writing, from Executive’s obligations pursuant to Sections 5 and 6. However, any decision by the Company to not make payments to Executive pursuant to this Section does not release Executive from Executive’s duties under Sections 5 or 6 unless the Company agrees, in writing, to so release Executive. By signing the general release and waiver in the form attached hereto as Schedule A, and by accepting payments, benefits or any other consideration thereunder, Executive acknowledges and agrees that he waives any and all other severance payments pursuant to any other plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) program of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedCompany.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 4 contracts
Samples: Executive Employment Agreement (Energy & Exploration Partners, Inc.), Executive Employment Agreement (Energy & Exploration Partners, Inc.), Executive Employment Agreement (Energy & Exploration Partners, Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the If Executive’s employment hereunder is terminated by the Executive for Good Reason Company (x) in an Anticipatory Qualifying Termination or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (y) other than on account of the Executive’s for Cause, death or Disability), in each case Disability within twenty-four twelve (2412) months following a Change in Control, or is terminated by Executive with Good Reason within twelve (12) months following a Change in Control, in addition to the Accrued Benefits, Executive shall be entitled to receive the Accrued Amounts andfollowing payments and benefits, subject to effectiveness of the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the followingRelease:
(ia) a lump sum payment equal to two (2) times the sum of (x) the Executive’s Base Salary and (y) the Prior Year Bonus, payable in a lump sum within sixty-five (65) days following the Effective Termination Date (or, if payment on such date is not permitted by Section 409A, then at the times set forth in Section 4.05(a));
(b) payment of a pro rata portion of the Target Bonus for in respect of the year in which the Effective Termination Date occurs occurs, paid in a lump sum within sixty-five (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (3065) days following the Effective Termination Date: provided that;
(c) payment of any unpaid bonus earned for the year prior to the year of termination, if paid at the Release Execution Period begins time set forth in one taxable year and ends in another taxable year, Section 4.04(b);
(d) payment shall not be made until the beginning of the second taxable year; and,
COBRA Equivalent within sixty-five (ii65) a lump sum payment equal to days of the Executive’s Target Bonus for the fiscal year in which the Effective Termination Date (as determined or, if payment on such date is not permitted by Section 409A, then at the times set forth in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs4.04(c)), which provided that such amount shall be paid within thirty based on twenty-four (3024) days following the Termination Datemonths of coverage, rather than eighteen (18) months; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.and
(be) Notwithstanding the terms full accelerated vesting of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested LTIP Units, Tandem Shares and exercisable for the remainder of their full term;
(ii) all outstanding other Company equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided thatawards, any delays in the settlement or payment of such awards that are unless otherwise set forth in the applicable award agreement and that are required under agreements. If, following a termination of Executive’s employment pursuant to Section 409A 4.05, such termination of employment becomes an Anticipatory Qualifying Termination, then Executive shall remain in effect; and,
be entitled to a lump-sum cash payment, payable within sixty-five (iii65) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of days after the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “Change in Control” shall mean , in an aggregate amount equal to the occurrence excess, if any, of (x) the aggregate amount set forth in Sections 4.06(a) and 4.06(d) less (y) the aggregate amount previously paid to Executive pursuant to Sections 4.05(a) and 4.05(d), provided that to the extent that any portion of the following such amount is not permitted to be paid within sixty-five (65) days after the Effective Date:Change in Control as a result of Section 409A, then such portion shall be paid at the time set forth in Section 4.05(a) or 4.05(d), as applicable. In the event that Executive becomes entitled to payments pursuant to Section 4.06 as a result of an Anticipatory Qualifying Termination, there shall be no duplication of payment under both Sections 4.05 and 4.06.
Appears in 4 contracts
Samples: Employment Agreement (Digital Landscape Group, Inc.), Employment Agreement (Digital Landscape Group, Inc.), Employment Agreement (Digital Landscape Group, Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four (24) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, Agreement and his the Executive’s execution of a Release which becomes effective within thirty (30) 60 days following the Termination Date, the Executive shall be entitled to receive the following:following (in lieu of any payments or benefits under Section 5.2 above):
(ia) a A lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) 60 days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding Any earned but unpaid Annual Bonus with respect to any completed calendar year immediately preceding the terms of any equity incentive plan or award agreementsTermination Date, as applicable:which shall be paid on the otherwise applicable payment date.
(ic) all outstanding unvested stock options or stock appreciation rights granted If the Executive timely and properly elects health plan continuation coverage under COBRA, the Company shall reimburse the Executive for the monthly COBRA premium paid by the Executive for the Executive and the Executive’s dependents. Such reimbursement shall be paid to the Executive during the Employment Term month immediately following the month in which the Executive timely remits the premium payment. The Executive shall become fully vested and exercisable for be eligible to receive such reimbursement until the remainder earliest of: (i) the eighteen-month anniversary of their full term;
the Termination Date; (ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended the date the Executive is no longer eligible to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested receive COBRA continuation coverage; and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all the date on which the Executive becomes eligible to receive substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Company’s payments under this Section 5.4(c) would violate the nondiscrimination rules applicable to non-grandfathered, insured group plans under the ACA, or result in the imposition of penalties under the ACA, the parties agree to reform this Section 5.4(c) in a manner as is necessary to comply with the ACA.
(d) A lump sum payment equal to six (6) times the monthly COBRA premium, which shall be paid within 60 days following the Termination Date.
(e) The treatment of any outstanding equity-based compensation equity awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited determined in accordance with the terms of the LTIP and the applicable award agreements, if the applicable performance goals are satisfied.
(cf) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 3 contracts
Samples: Employment Agreement (Rise Oil & Gas, Inc.), Employment Agreement (Rise Oil & Gas, Inc.), Employment Agreement (Rise Oil & Gas, Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections Section 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four three months before or twelve (2412) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 6 of this Agreement, Agreement and his the Executive’s execution of a Release which becomes effective within thirty (30) 21 days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two one and a half (21½) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) 30 days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) If the Executive timely and properly elects health plan continuation coverage under COBRA, the Company shall reimburse the Executive for the monthly COBRA premium paid by the Executive for the Executive and the Executive’s dependents. Such reimbursement shall be paid to the Executive on the first of the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) the twelve-month anniversary of the Termination Date; (ii) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which the Executive receives substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Company’s payments under this Section 5.3(b) would violate the nondiscrimination rules applicable to non- grandfathered, insured group plans under the ACA, or result in the imposition of penalties under the ACA, the parties agree to reform this Section 5.3(b) in a manner as is necessary to comply with the ACA.
(c) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights awards, that are do not intended to qualify as performance-vest based compensation under Section 162(m)(4)(C) on the attainment of the Code performance goals shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights awards, that are intended to constitute performance-vest based compensation under Section 162(m)(4)(C) on the attainment of the Code performance goals shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(cd) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 3 contracts
Samples: Employment Agreement (Dragonfly Energy Holdings Corp.), Employment Agreement (Dragonfly Energy Holdings Corp.), Employment Agreement (Dragonfly Energy Holdings Corp.)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four three (243) months prior to or twelve (12) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 8, Section 9 and Section 9 10 of this Agreement, Agreement and his execution of a Release which becomes effective within thirty (30) days following by the Termination Dateend of the Release Execution Period, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times one time the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs)Salary, which shall be paid within thirty (30) days following on the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days 30th day following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.and
(b) If the Executive timely and properly elects health continuation coverage under COBRA, the Corporation shall reimburse the Executive for the monthly COBRA premium paid by the Executive for himself and his dependents. Such reimbursement shall be paid to the Executive on the 10th day of the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) the twelve-month anniversary of the Termination Date; (ii) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which the Executive becomes eligible to receive substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Corporation’s making payments under this Section 5.5(b) would violate the nondiscrimination rules applicable to non-grandfathered plans under the ACA, or result in the imposition of penalties under the ACA, the parties agree to reform this Section 5.5(b) in a manner as is necessary to comply with the ACA.
(c) Consistent with the terms of any equity incentive plan or award agreementsof the Company, as approved by the stockholders, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights time-based equity-based compensation awards granted to the Executive during the Term of Employment Term shall become fully vested and exercisable for the remainder of their full term;; and
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based equity compensation awards other than stock options and stock appreciation rights that are intended granted to constitute performance-based compensation under Section 162(m)(4)(C) the Executive during the Term of the Code Employment shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “Change . The determination whether such performance goals are satisfied shall be in Control” shall mean the occurrence of any sole discretion of the following after Compensation Committee or the Effective Date:Board, as the case may be.
Appears in 3 contracts
Samples: Employment Agreement, Employment Agreement (Sonoma Pharmaceuticals, Inc.), Employment Agreement (Oculus Innovative Sciences, Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if 3.1 If the Executive’s 's employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s 's death or Disability), in each case within twenty-four (24) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the following:
(ia) a lump sum payment equal to two (2) times the sum of the Executive’s 's Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid in a lump sum within thirty sixty (3060) days following of the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(iib) a lump sum payment equal to the Executive’s 's Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty sixty (3060) days following the end of the fiscal year for which the Target Bonus relates.
3.2 If the Executive timely and properly elects continuation coverage under COBRA, the Company shall reimburse the Executive for the monthly COBRA premium paid by the Executive for himself and his dependents. Such reimbursement shall be paid to the Executive on the fifth (5th) day of the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) the thirty-six-month anniversary of the Termination Date; provided that, if (ii) the Release Execution Period begins in one taxable year date the Executive is no longer eligible to receive COBRA continuation coverage; and ends in (iii) the date on which the Executive becomes eligible to receive substantially similar coverage from another taxable year, payment shall not be made until the beginning of the second taxable yearemployer.
(b) 3.3 Notwithstanding the terms of any equity bonus, incentive plan or other award agreements, as applicable:
(ia) all unvested outstanding amounts owed pursuant to the Company's Executive Compensation Plan shall become fully vested and the restrictions thereon shall lapse upon the Termination Date; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect;
(b) all outstanding unvested stock options or membership unit options/stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;; and
(iic) all outstanding equity-based compensation awards other than stock options or membership unit options/stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,.
3.4 Notwithstanding the foregoing, the Executive shall be entitled to the payments set forth in Sections 3.1, 3.2 and 3.3 of this Agreement in the event the Executive is terminated by the Company without Cause during the twelve (iii12) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended months prior to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited a Change in accordance with the terms of the applicable award agreementsControl, if the applicable performance goals are satisfied.
(c) For purposes termination was in any way motivated by an attempt by either the Company or any party acquiring control of the Company to avoid paying the benefits provided to the Executive pursuant to this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:.
Appears in 3 contracts
Samples: Change in Control Agreement (Homeland Energy Solutions LLC), Change in Control Agreement (Homeland Energy Solutions LLC), Change in Control Agreement (Homeland Energy Solutions LLC)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or Reason, by the Company on account of its failure to renew the Agreement in accordance with Sections Section 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four twelve (2412) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, Agreement and his the Executive’s execution of a Release which becomes effective within thirty ten (3010) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) following a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Annual Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) fifteen days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,.
(iib) a lump sum payment equal to If the Executive timely and properly elects health plan continuation coverage under COBRA, the Company shall reimburse the Executive for the monthly COBRA premium paid by the Executive for the Executive and the Executive’s Target Bonus for dependents. Such reimbursement shall be paid to the fiscal year Executive on the fifth day of the month immediately following the month in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, Executive timely remits the year in which the Change in Control occurs), which premium payment. The Executive shall be paid within thirty eligible to receive such reimbursement until the earliest of: (30i) days following the eighteen-month anniversary of the Termination Date; provided that(ii) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which the Executive receives substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Release Execution Period begins Company’s payments under this Section 5.4(b) would violate the nondiscrimination rules applicable to non-grandfathered, insured group plans under the ACA, or result in one taxable year and ends the imposition of penalties under the ACA, the parties agree to reform this Section 5.4(b) in another taxable year, payment shall not be made until a manner as is necessary to comply with the beginning of the second taxable yearACA.
(bc) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-vest based compensation under Section 162(m)(4)(C) on the attainment of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code performance goals shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedimmediately.
(cd) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 3 contracts
Samples: Employment Agreement (Singing Machine Co Inc), Employment Agreement (Singing Machine Co Inc), Employment Agreement (Singing Machine Co Inc)
Change in Control Termination. (a) Notwithstanding any other provision contained hereinIf, if during the Employment Period, the Company terminates Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s due to death or Disability), there is a Non-Renewal as a result of the Company’s delivery of a Notice of Non-Renewal, or Executive terminates employment for Good Reason, in each case case, upon or within twenty-four (24) 24 months following the consummation of a Change in Control, the Executive shall be entitled to receive the Accrued Amounts andthen, subject to Section 11(j) and, in the case of all payments and benefits other than the Accrued Obligations and the Other Benefits, Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 execution within 50 days of this Agreementthe Date of Termination, and his execution non-revocation, of a Release which becomes effective within thirty (30) days following the Termination DateRelease, the Company shall pay to Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greaterAccrued Obligations, the year immediately preceding Unpaid Annual Bonus, the year Health Care Benefits and the Other Benefits in which accordance with the Change in Control occursterms of Sections 5(a)(i), which shall be paid within thirty (30) days following the Termination Date: provided thatii), if the Release Execution Period begins in one taxable year (v), and ends in another taxable year(vi), payment shall not be made until the beginning of the second taxable year; and,respectively;
(ii) a lump sum payment prorated Annual Bonus in respect of the fiscal year of the Company in which the Date of Termination occurs, with such amount to equal to the Executive’s product of (A) the Target Annual Bonus for the fiscal year in which the Date of Termination occurs, and (B) a fraction, (I) the numerator of which is the number of days that have elapsed in the fiscal year of the Company in which the Date of Termination occurs as of the Date of Termination, and (II) the denominator of which is 365 (the “Prorated Target Bonus”), which Prorated Target Bonus shall be paid in a lump sum in cash on the first payroll date following the Release Effective Date (as determined other than any portion of such Annual Bonus that was deferred, which portion shall instead be paid in accordance with Section 5.6the applicable deferral arrangement and any election thereunder);
(iii) occurs an amount equal to the product of (or if greater, A) two multiplied by (B) the sum of (x) the Annual Base Salary and (y) the Target Annual Bonus as in effect for the fiscal year of the Company in which the Change Date of Termination occurs, payable in Control occurs), which shall be paid within thirty (30) days a lump sum on the first payroll date following the Termination Release Effective Date;
(iv) a cash payment in an amount equal to six months’ health care premiums at the Prevailing COBRA Rate for Executive and each of his eligible dependents, payable in a lump sum on the first payroll date following the Release Effective Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.and
(bv) Notwithstanding the terms for purposes of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights awards granted to Executive following the effective date of the Irish Agreement (including, for the avoidance of doubt, any equity incentive awards granted to Executive during following the Employment Term Effective Date), that remain outstanding on the Date of Termination (other than the Sign-On RSUs), and notwithstanding anything to the contrary in the applicable award agreement, the 2013 LTIP, or any successor or similar plan, such equity incentive awards shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation with any equity incentive awards other than stock options or stock appreciation rights that are not intended subject to qualify as performance-based compensation under Section 162(m)(4)(C) vesting criteria vesting at “target” levels of achievement). For the Code avoidance of doubt, upon Executive’s termination of employment, the Sign-On RSUs shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited treated in accordance with the terms RSU Agreement. For the avoidance of doubt, if applicable, any amount payable pursuant to Section 5(b) shall be determined without regard to any reduction in compensation that resulted in Executive’s termination of employment for Good Reason. If Executive does not execute the Release within 50 days following the Date of Termination, or if Executive revokes the Release, Executive shall be entitled to only the Accrued Obligations and the Other Benefits. Other than as set forth in this Section 5(a) or 5(b), as applicable, in the event of a termination of Executive’s employment by the Company without Cause (other than due to death or Disability), due to a Non-Renewal as a result of the applicable award agreementsCompany’s delivery of a Notice of Non-Renewal, if or by Executive for Good Reason, the applicable performance goals are satisfied.
(c) For purposes of Company and its Affiliates shall have no further obligation to Executive under this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:.
Appears in 2 contracts
Samples: Employment Agreement, Employment Agreement (PERRIGO Co PLC)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case case, within twenty-four twelve (2412) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, Agreement and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs)Salary, which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options a lump sum payment equal to Executive’s Target Bonus for the calendar year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(Cif greater, the year in which the Change in Control occurs), which shall be paid within sixty (60) of days following the Code shall become fully vested and the restrictions thereon shall lapseTermination Date; provided that, any delays if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the settlement or payment beginning of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effectsecond taxable year; and,
(iii) all the Award will vest in full and the treatment of any other outstanding equity-based compensation equity awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited determined in accordance with the terms of the Incentive Plan and the applicable award agreements.
(b) If Executive timely and properly elects health plan continuation coverage under COBRA, the Company shall reimburse Executive for the monthly COBRA premium paid by Executive for himself and his dependents. Such reimbursement shall be paid to Executive on the first (1st) of the month immediately following the month in which Executive timely remits the premium payment. Executive shall be eligible to receive such reimbursement until the earliest of: (i) the eighteen-month anniversary of the Termination Date; (ii) the date Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which Executive receives substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Company’s payments under this Section 5.4(b) would violate the nondiscrimination rules applicable performance goals are satisfiedto non-grandfathered, insured group plans under the ACA, or result in the imposition of penalties under the ACA, the parties agree to reform this Section 5.4(b) in a manner as is necessary to comply with the ACA.
(c) For purposes of this Agreement, “Change in Control” shall mean have the occurrence of any of meaning set forth under the following after the Effective Date:Incentive Plan.
Appears in 2 contracts
Samples: Executive Employment Agreement, Executive Employment Agreement (Waitr Holdings Inc.)
Change in Control Termination. (ai) Notwithstanding any other provision contained hereinIf, if within the 13-month period immediately following the occurrence of a Change in Control, the Executive’s employment hereunder by the Company is terminated by the Company other than for Cause (other than a termination for Disability or death) or by the Executive for Good Reason or by (subject, if applicable, to the proviso set forth in the first sentence of Section 4(c)(ii)), then the Company on account shall pay to the Executive (i) a cash payment equal to three times the sum of its failure (A) the Executive’s Annual Base Salary immediately prior to renew the Agreement in accordance with Sections 1 Date of Termination and 5, or without Cause (other than on account B) the Applicable Bonus Amount; and (ii) any unpaid amounts of the Executive’s death Annual Base Salary for periods prior to the Date of Termination and earned annual bonuses for completed fiscal years prior to the Date of Termination. The cash payments described in clause (i) and (ii) of the preceding sentence shall be made in a lump sum within 30 days following the Date of Termination. Notwithstanding the foregoing, if the amounts of such payments cannot be finally determined on or Disabilitybefore a date when a payment is due, the Company shall pay to the Executive on such day an estimate, as reasonably determined 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, if any, as soon as the amount thereof can be determined. The Company shall also provide to the Executive (and, as applicable, his eligible dependents), in each case within twenty-four the event of such a termination continued participation at the Company’s expense in the Company’s medical, dental, prescription and vision care insurance plans (24or substantially equivalent coverage under an alternative arrangement) for 12 months following the Date of Termination (or, if earlier, until the date the Executive obtains alternative coverage from a Change in Controlsubsequent employer) following which, if no such alternative coverage has been obtained, the Executive shall will be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited elect COBRA continuation coverage in accordance with the terms provisions of Section 4980B of the applicable award agreementsCode, if which COBRA coverage period shall begin at the applicable performance goals are satisfiedclose of the period of such continued participation.
(cii) For purposes of this Agreement, a “Change in Control” shall mean be deemed to have occurred on the occurrence of any of the following first date after the Effective Date:Date on which (1) any Person (as defined below) shall acquire, whether by purchase, exchange, tender offer, merger, consolidation or otherwise, beneficial ownership of securities of the Company constituting fifty percent (50%) or more of the combined voting power of the securities of the Company, (2) any Person shall acquire all or substantially all of the assets of the Company pursuant to a sale, dissolution or liquidations or (3) any Person shall acquire the ability to appoint or elect a majority of the members of the Board. For purposes of the preceding sentence, “Person” shall have the meaning given in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended from time to time, as such term is modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) Holdings, Xxxxxx X. Xxx Partners or Xxxxxx X. Xxx Equity Fund IV, L.P., Evercore Capital Partners L.P. and each of their respective affiliates (the “Designated Investors”), (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities and (iv) a corporation owned, directly or indirectly, by the Designated Investors, such that the aggregate ownership of securities or assets of the Company or the ability to appoint or elect directors of the Company that is attributable to such Designated Investors would not decrease to a level that would result in a Change in Control, if such ownership or ability was deemed to be held directly in the Company. The completion of an initial public offering in which no Person acquires beneficial ownership of fifty percent (50%) or more of the combined voting power of the securities of such Person shall not constitute a Change in Control, nor shall the acquisition of beneficial ownership of securities of the Company by a Person which has a class of securities registered under Section 12 of the Securities Exchange Act of 1934, as amended, if such acquisition does not result in the Designated Investors owning thirty percent (30%) or less of the combined voting power of the securities of the Company. Notwithstanding the foregoing, other than for purposes of the existence of Deemed Good Reason (as defined in Section 4(c)(i)), a Change in Control shall be deemed to have occurred on the date when the Designated Investors together with the senior management of the Company (as determined by the Designated Investors) cease to beneficially own at least thirty percent (30%) or more of the combined voting power of the securities of the Company (a “Limited Change in Control”).
(iii) For purposes of this Agreement, the Executive’s employment shall be deemed to have been terminated within the thirteen month period following a Change in Control and during the Term by the Company without Cause (and shall be governed by this Section 5(d)), if the Executive’s employment is terminated by the Company without Cause either (i) during the 120 day period prior to the execution of an agreement, the consummation of which would result
in a Change in Control or (ii) following the execution of an agreement, the consummation of which would result in a Change in Control and such termination is effective at the time, or during the pendency, of such Change in Control (in either case whether or not such Change in Control actually occurs).
Appears in 2 contracts
Samples: Employment Agreement (Vertis Inc), Employment Agreement (Vertis Inc)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or Bank without Cause (other than on account of the Executive’s death or Disability), in each case either concurrently with or within twenty-four (24) 24 months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, 7 and Section 8 and Section 9 of this Agreement, Agreement and his execution of a Release which becomes effective within thirty (30) days following as provided therein, for which the Termination DateBank assigns significant value in agreeing to this Section 5.4, the Executive shall be entitled to receive the following:
(i) a A lump sum payment upon the effectiveness of the Release equal to two (2) times the sum of of: (y) 2.99 times his highest annual compensation for services rendered that was includible in the Executive’s Base Salary and Target Bonus gross income (partial years being annualized) for the year in which the Termination Date occurs immediately preceding three taxable years (or if greatersuch shorter period as the Executive was employed); and (z) the value of any shares of restricted stock, stock options or other awards issued to Executive under any plan adopted by the year immediately preceding Bank or any affiliate of the year in which the Change in Control occurs)Bank or any successor plan that are forfeited as a result of such termination, which whether vested or unvested. The payment shall be paid within thirty (30) made 60 business days following the Termination Date: termination of Executive’s employment with the Bank provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,have become effective prior to that date.
(ii) a lump sum payment equal If the Executive timely and properly elects continuation coverage under COBRA, the Bank shall reimburse the Executive for the difference between the monthly COBRA premium paid by the Executive for himself and his dependents and the monthly premium amount paid by similarly situated active executives. Such reimbursement shall be paid to the Executive’s Target Bonus for Executive on the fiscal year fifteenth day of the month immediately following the month in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, Executive timely remits the year in which the Change in Control occurs), which premium payment. The Executive shall be paid within thirty eligible to receive such reimbursement until the earliest of:
(30x) days following the second year anniversary of the Termination Date;
(y) the date the Executive is no longer eligible to receive COBRA continuation coverage; provided that, if and
(z) the Release Execution Period begins in one taxable year and ends in date on which the Executive receives/becomes eligible to receive substantially similar coverage from another taxable year, payment shall not be made until the beginning of the second taxable yearemployer.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of this Agreement, a “Change in Control” shall mean an event involving the occurrence of any Bank that: (i) would be required to be reported in response to Item 5.01 of the following after current report on Form 8-K, as in effect on the Effective Datedate hereof, pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”); or (ii) results in a Change in Control of the Bank within the meaning of the Home Owners’ Loan Act of 1933, as amended, the Federal Deposit Insurance Act, or the Rules and Regulations promulgated by the OCC, as in effect on the date hereof (provided, that in applying the definition of change in control as set forth under the rules and regulations of the OCC, the Board shall substitute its judgment for that of the OCC); or (iii) without limitation such a Change in Control shall be deemed to have occurred at such time as:
Appears in 2 contracts
Samples: Employment Agreement (PDL Community Bancorp), Employment Agreement (PDL Community Bancorp)
Change in Control Termination. If (ai) Notwithstanding any other provision contained hereina Change in Control occurs during the Term of Employment, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case ii) within twenty-twenty four (24) months following a after the effective date of such Change in ControlControl the occurrence of one or more of the following conditions; (X) failure by the Company to comply with any provision of this Agreement, (Y) reduction of Employee’s Base Salary without the Executive prior written consent of the Employee, or (Z) a substantial and material diminution in Employee’s title, duties or responsibilities which the Employee currently maintains without the prior written consent of the Employee, and (iii) within ninety (90) days thereafter Employee or the Company terminates Employee’s employment (an employment termination that satisfies the foregoing conditions, a “Change in Control Termination”), then Employee shall be entitled to receive the receive:
(i) The Accrued Amounts Obligations; and, subject
(ii) Subject to the Executive’s compliance with limitations set forth in Section 612(b), Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days (or forty-five (45) days in the event that such termination of employment is “in connection with an exit incentive or other employment termination program” (as such phrase is defined in the Age Discrimination in Employment Act of 1967)) after the date that Employee executes and delivers a Release to the Company or, to the extent required by Section 409A of the Code, on the first day of the seventh month following such date, and subject to the Termination DateRelease under Section 7(i), the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum 12 months of the Executive’s Base Salary and Target Bonus for in effect immediately prior to the year date Employee’s employment terminates (without regard to any decrease in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the rate of Employee’s Annual Compensation made after such Change in Control occursControl). Following such termination of Employee’s employment, which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (except as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement this Section 7(e) and that are required Section 7(h), Employee shall have no further rights to any compensation or any other benefits under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:.
Appears in 2 contracts
Samples: Executive Employment Agreement (Flux Power Holdings, Inc.), Employment Agreement (Flux Power Holdings, Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s 's employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections Section 1 and 5, or without Cause (other than on account of the Executive’s 's death or Disability), in each case within twenty-four twelve (2412) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s 's compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, Agreement and his the Executive's execution of a Release which becomes effective within thirty seven (307) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) three times the sum of the Executive’s 's Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: ; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s 's Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.65.7) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or options/stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or options/stock appreciation rights that are do not intended to qualify as performance-vest based compensation under Section 162(m)(4)(C) on the attainment of the Code performance goals shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and options/stock appreciation rights that are intended to constitute performance-vest based compensation under Section 162(m)(4)(C) on the attainment of the Code performance goals shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “"Change in Control” " shall mean the occurrence of any of the following after the Effective Date:
Appears in 2 contracts
Samples: Employment Agreement (Nutex Health, Inc.), Employment Agreement
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections Section 1 and 5, or without Cause (other than on account of the Executive’s death Death or Disability), in each case within twenty-four twelve (2412) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 5, Section 6, Section 7, 7 and Section 8 and Section 9 of this Agreement, Agreement and his execution of a Release which becomes effective within thirty (30) days following the Termination DateRelease, the Executive shall be entitled to receive the following:
(i) a the lump sum payment equal to two of one (21) times the sum of the Executiveyear’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or salary any accrued, but unused vacation pay, if greater, the year immediately preceding the year in which the Change in Control occurs)any, which shall be paid within thirty (30) 30 days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,;
(ii) a lump sum payment equal to the Executive’s Target earned but unpaid Annual Bonus subject to the Company’s Bonus Plan.
(iii) reimbursement for unreimbursed business expenses properly incurred by the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs)Executive, which shall be subject to and paid within thirty in accordance with the Company’s expense reimbursement policy;
(30iv) days following such employee benefits, if any, to which the Executive may be entitled under the Company’s Employee Benefit Plans as of the Termination Date; provided that, if in no event shall the Release Execution Period begins Executive be entitled to any payments in one taxable year and ends in another taxable year, payment shall not be made until the beginning nature of the second taxable year.severance or termination payments except as specifically provided herein; and
(bv) any additional awards, including any Long Term Incentive Plan awards as determined by the terms of such plan. Notwithstanding the terms of any equity incentive plan or award agreementsLong Term Incentive Plan, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights Long Term Incentive Plan awards granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(b) If the Executive timely and properly elects health continuation coverage under COBRA, the Company shall reimburse the Executive for the monthly COBRA premium paid by the Executive for himself and his dependents. Such reimbursement shall be paid to the Executive on the 15th day of the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) the eighteen-month anniversary of the Termination Date; (ii) all outstanding equity-based compensation awards other than stock options the date the Executive is no longer eligible to receive COBRA continuation coverage; or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards the date on which the Executive receives/becomes eligible to receive substantially similar coverage from another employer or other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of source. Notwithstanding the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreementsforegoing, if the Company's making payments under this Section 5.4(b) would violate the nondiscrimination rules applicable performance goals are satisfiedto non-grandfathered plans under the Affordable Care Act (the “ACA”), or result in the imposition of penalties under the ACA, the parties agree to reform this Section 5.4(b) in a manner as is necessary to comply with the ACA.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 2 contracts
Samples: Employment Agreement (Royale Energy, Inc.), Employment Agreement (Royale Energy, Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained hereinIf, if during the Employment Period, the Company shall terminate the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (and other than on account of upon the Executive’s death or Permanent Disability), or if the Executive shall terminate her employment for Good Reason, in each case either case, in connection with, or within twenty-four twelve (2412) months following following, a Change in ControlControl (any such termination of employment, a “Change in Control Termination”), the Executive Company shall be entitled to receive the Accrued Amounts and, subject have no further obligations to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the followingexcept as follows:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full termAccrued Benefits;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,Prorated Bonus;
(iii) the Company shall pay the Executive, on the 60th day following the date of termination, a lump sum amount equal to the product of two times (2x) the sum of (A) the Annual Base Salary (which shall be the Annual Base Salary prior to any reduction if the termination is for Good Reason because of a reduction in the Annual Base Salary) plus (B) the Target Bonus Amount; and
(iv) (A) all prior share Awards granted to Executive pursuant to any agreement(s) entered into prior to the Effective Date between Executive and the Company to the extent outstanding equity-based compensation awards other than stock options and stock appreciation rights as of the date of termination that are intended subject to constitute forfeiture on the date of termination shall fully vest and become non-forfeitable; provided, that any such Awards that are subject to performance-based compensation under vesting restrictions or conditions shall instead be treated in accordance with clause (C) of this Section 162(m)(4)(C4(d)(iv); (B) all outstanding Time Vesting LTIP Awards, if any, that are subject to forfeiture on the date of termination shall fully vest and become non-forfeitable, and (C) all outstanding Performance Vesting LTIP Awards, if any, that are subject to forfeiture on the date of termination shall fully and immediately vest and become non-forfeitable at the greater of (1) one hundred percent (100%) of the Code shall remain outstanding and shall vest number of shares of Common Stock granted pursuant to each such award, or be forfeited in accordance with (2) the terms performance level that has been achieved as of the applicable award agreements, if the applicable performance goals are satisfied.
(cdate of termination. The amounts payable or to be provided under this Section 4(d) For purposes of this Agreement, “Change shall be in Control” shall mean the occurrence lieu of any of the following after the Effective Date:amounts that would otherwise be paid or provided under Section 4(a), Section 4(b) and Section 4(c).
Appears in 2 contracts
Samples: Employment Agreement (Seaport Entertainment Group Inc.), Employment Agreement (Howard Hughes Corp)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is by the Company shall be terminated by the Company without Cause, by Executive for Good Reason or upon expiration of the Employment Term as then in effect following timely provision by the Company on account of its failure to renew the Agreement notice of non-renewal in accordance with Sections Section 1 and 5, or without Cause (other than on account of the Executive’s death or Disability)hereof, in each case within one month before or twenty-four (24) months immediately following a Change in ControlControl (as defined under the Equity Plan), the then, subject to Section 16(d) hereof, Executive shall be entitled to receive the benefits provided in this Section 8(e).
(i) The Company shall pay to Executive any Accrued Amounts and, subject Compensation;
(ii) The Company shall pay to Executive any bonus earned but unpaid in respect of any fiscal year preceding the termination date within sixty (60) days following the termination date;
(iii) The Company shall pay to Executive an amount equal to Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective then-current Target Bonus within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full termtermination date;
(iiiv) all outstanding equityThe Company shall pay Executive as severance pay, in lieu of any further compensation (except as provided in this Section 8(e)) for the periods subsequent to the termination date, an amount in cash, equal to one (1) times Executive’s then-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of current Base Salary, paid in equal installments on the Code shall become fully vested and Company’s regular payroll dates during the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,Severance Period;
(iiiv) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) Each unvested equity award held by Executive at the time of the Code shall remain outstanding and termination shall vest or be forfeited in accordance full (with the terms of the applicable award agreements, if the any applicable performance goals are satisfied.treated as achieved at target) and immediately settled in the Company’s common shares; and
(cvi) For purposes If Executive is participating in the Company’s group health insurance plans on the effective date of this Agreementtermination, “Change in Control” and Executive timely elects and remains eligible for continued coverage under COBRA, or, if applicable, state or local insurance laws, the Company shall mean pay that portion of Executive’s premiums that the occurrence Company was paying prior to the effective date of any of termination for the following after Severance Period or for the Effective Date:continuation period for which Executive is eligible, whichever is shorter.
Appears in 2 contracts
Samples: Employment Agreement (American Well Corp), Employment Agreement (American Well Corp)
Change in Control Termination. (a) Notwithstanding any other provision contained hereinIf, if during the Employment Period, the Company terminates Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s due to death or Disability), there is a Non-Renewal as a result of the Company’s delivery of a Notice of Non-Renewal, or Executive terminates employment for Good Reason, in each case case, upon or within twenty-four (24) 24 months following the consummation of a Change in Control, then, subject to, in the Executive shall be entitled to receive case of all payments and benefits other than the Accrued Amounts andObligations and the Other Benefits, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 execution within 50 days of this Agreementthe Date of Termination, and his execution non-revocation, of a Release which becomes effective within thirty (30) days following the Termination DateRelease, the Company shall pay to Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greaterAccrued Obligations, the year immediately preceding Unpaid Annual Bonus, the year Health Care Benefits and the Other Benefits in which accordance with the Change in Control occursterms of Sections 5(a)(i), which shall be paid within thirty (30) days following the Termination Date: provided thatii), if the Release Execution Period begins in one taxable year (v), and ends in another taxable year(vii), payment shall not be made until the beginning of the second taxable year; and,respectively;
(ii) a lump sum payment prorated Annual Bonus in respect of the fiscal year of the Company in which the Date of Termination occurs, with such amount to equal to the Executive’s product of (A) the Target Annual Bonus for the fiscal year in which the Date of Termination occurs, and (B) a fraction, (I) the numerator of which is the number of days that have elapsed in the fiscal year of the Company in which the Date of Termination occurs as of the Date of Termination, and (II) the denominator of which is 365 (the “Prorated Target Bonus”), which Prorated Target Bonus shall be paid in a lump sum in cash on the first payroll date following the Release Effective Date (as determined other than any portion of such Annual Bonus that was deferred, which portion shall instead be paid in accordance with Section 5.6the applicable deferral arrangement and any election thereunder);
(iii) occurs an amount equal to the product of (or if greater, A) two multiplied by (B) the sum of (x) the Annual Base Salary and (y) the Target Annual Bonus as in effect for the fiscal year of the Company in which the Change Date of Termination occurs, payable in Control occurs), which shall be paid within thirty (30) days a lump sum on the first payroll date following the Termination Release Effective Date;
(iv) a cash payment in an amount equal to six months’ health care premiums at the Prevailing Rate for Executive and each of his eligible dependents, payable in a lump sum on the first payroll date following the Release Effective Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.and
(bv) Notwithstanding the terms for purposes of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights awards granted to Executive following the Executive during Effective Date that remain outstanding on the Employment Term Date of Termination (other than the Sign-On RSUs), and notwithstanding anything to the contrary in the applicable award agreement, the 2013 LTIP, or any successor or similar plan, such equity incentive awards shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation with any equity incentive awards other than stock options or stock appreciation rights that are not intended subject to qualify as performance-based compensation under Section 162(m)(4)(C) vesting criteria vesting at “target” levels of achievement). For the Code avoidance of doubt, upon Executive’s termination of employment, the Sign-On RSUs shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited treated in accordance with the terms RSU Agreement. For the avoidance of doubt, if applicable, any amount payable pursuant to Section 5(b) shall be determined without regard to any reduction in compensation that resulted in Executive’s termination of employment for Good Reason. If Executive does not execute the Release within 50 days following the Date of Termination, or if Executive revokes the Release, Executive shall be entitled to only the Accrued Obligations and the Other Benefits. Other than as set forth in this Section 5(a) or 5(b), as applicable, in the event of a termination of Executive’s employment by the Company without Cause (other than due to death or Disability), due to a Non-Renewal as a result of the applicable award agreementsCompany’s delivery of a Notice of Non-Renewal, if or by Executive for Good Reason, the applicable performance goals are satisfied.
(c) For purposes of Company and its Affiliates shall have no further obligation to Executive under this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:.
Appears in 2 contracts
Samples: Employment Agreement, Employment Agreement (PERRIGO Co PLC)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s 's employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s 's death or Disability), in each case within twenty-four twelve (2412) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s 's compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, Agreement and his execution of a Release which becomes effective within thirty twenty-one (3021) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) ½ times the sum of the Executive’s 's Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty twenty-one (3021) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,.
(iib) a lump sum payment equal to If the Executive’s Target Bonus Executive timely and properly elects health continuation coverage under COBRA, the Company shall reimburse the Executive for the fiscal year in which monthly COBRA premium paid by the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which Executive for himself and his dependents. The Executive shall be paid within thirty eligible to receive such reimbursement until the earliest of: (30i) days following the twelfth-month anniversary of the Termination Date; provided that, if (ii) the Release Execution Period begins in one taxable year date the Executive is no longer eligible to receive COBRA continuation coverage; and ends in (iii) the date on which the Executive receives substantially similar coverage from another taxable year, payment shall not be made until the beginning of the second taxable yearemployer or other source.
(bc) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or options/stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or options/stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and options/stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(cd) For purposes of this Agreement, “"Change in Control” " shall mean the occurrence of any of the following after the Effective Date:
Appears in 2 contracts
Samples: Employment Agreement (Amerinac Holding Corp.), Employment Agreement (Amerinac Holding Corp.)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is by the Company shall be terminated by the Company without Cause, by Executive for Good Reason or upon expiration of the Employment Term as then in effect following timely provision by the Company on account of its failure to renew the Agreement notice of non-renewal in accordance with Sections Section 1 and 5, or without Cause (other than on account of the Executive’s death or Disability)hereof, in each case within one month before or twenty-four (24) months immediately following a Change in ControlControl (as defined under the Equity Plan), the then, subject to Section 16(d) hereof, Executive shall be entitled to receive the benefits provided in this Section 8(f).
(1) The Company shall pay to Executive any Accrued Amounts and, subject Compensation;
(2) The Company shall pay to Executive any bonus earned but unpaid in respect of any fiscal year preceding the termination date and such bonus will be paid as and when such bonuses are paid to the other senior executives;
(3) The Company shall pay to Executive an amount equal to Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective then-current Target Bonus within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full termtermination date;
(ii4) all outstanding The Company shall pay Executive as severance pay, in lieu of any further compensation (except as provided in this Section 8(f)) for the periods subsequent to the termination date, an amount in cash, equal to one (1) times Executive’s then-current Base Salary, paid in equal installments on the Company’s regular payroll dates during the Severance Period;
(5) Each unvested equity, equity-based compensation awards or other than stock options or stock appreciation rights that are not intended to qualify as performancelong-based compensation under Section 162(m)(4)(C) term incentive award held by Executive at the time of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and termination shall vest or be forfeited in accordance full (with the terms of the applicable award agreements, if the any applicable performance goals are satisfied.treated as achieved at target); and
(c6) For purposes If Executive is participating in the Company’s group health insurance plans on the effective date of this Agreementtermination, “Change in Control” and Executive timely elects and remains eligible for continued coverage under COBRA, or, if applicable, state or local insurance laws, the Company shall mean pay that portion of Executive’s premiums that the occurrence Company was paying prior to the effective date of any of termination for the following after Severance Period or for the Effective Date:continuation period for which Executive is eligible, whichever is shorter.
Appears in 2 contracts
Samples: Employment Agreement (American Well Corp), Employment Agreement (American Well Corp)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, in the event of a Change in Control, if the Executive’s 's employment hereunder is terminated by the Executive for For Good Reason Reason, or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Without Cause (other than on account of the Executive’s 's death or Disability), in each case within twenty-four twelve (2412) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts andreceive, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following Release, in accordance with the Termination Dateterms and conditions herein, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two the Accrued Amounts (2as defined in Section 6.1(a) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occursabove), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,;
(ii) a lump sum Severance payment equal to the to: (A) a flat eighteen (18) months or 1.5x of Executive’s Target annual Base Salary, plus (B) their full Incentive Bonus for the that fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.and
(b) Notwithstanding the terms of any equity incentive plan plans or any applicable award agreements, as applicableExecutive shall also be entitled to the payment of:
(i) in the case of a Change in Control, all outstanding stock price conditions from the Equity Award described in Exhibit “B” will be deemed to have been met. If the Equity Award is equitably assumed by the ongoing corporation based on its value at the Change in Control, vesting will occur in accordance with the original time vesting schedule. If the Executive’s employment terminates after the Change in Control due to Termination by the Company Without Cause, Termination by the Executive For Good Reason, or termination as a result of the Executive’s death or Disability, any unvested stock options or stock appreciation rights granted portion of the Equity Award will vest upon the Termination Date. If the Executive’s employment terminates after the Change in Control for any other reason, any unvested portion of the Equity Award will be forfeited. Notwithstanding the forgoing, if the ongoing corporation does not equitably assume the Equity Award, vesting will accelerate to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights Change in Control date; provided, however, that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement Equity Award agreement, and that are required under Section 409A 409A, shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes The Executive shall also be entitled to:
(i) if the Executive timely and properly elects health continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of this Agreement1985 ("COBRA"), “Change in Control” partial reimbursement for the monthly health care insurance premiums increase paid by the Executive for themselves and their dependents, calculated as the difference between the amount of monthly health care insurance premiums paid by the Executive pre- and post-COBRA coverage; provided, however, that the Executive shall mean comply with applicable election and eligibility requirements. The Executive shall be eligible to receive such reimbursement until the occurrence of any earliest of: (i) the eighteen-month anniversary of the following after Termination Date; (ii) the Effective Date:date the Executive is no longer eligible to receive COBRA continuation coverage; or (iii) the date on which the Executive receives or becomes eligible to receive substantially similar health care coverage from another employer or other source.
Appears in 2 contracts
Samples: Executive Employment Agreement (TILT Holdings Inc.), Executive Employment Agreement (TILT Holdings Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four three (243) months prior to or twelve (12) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 8, Section 9 and Section 9 10 of this Agreement, Agreement and his execution of a Release which becomes effective within thirty (30) days following by the Termination Dateend of the Release Execution Period, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two one-and-a half (21.5) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs)Salary, which shall be paid within thirty (30) days following on the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days 30th day following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.and
(b) If the Executive timely and properly elects health continuation coverage under COBRA, the Corporation shall reimburse the Executive for the monthly COBRA premium paid by the Executive for himself and his dependents. Such reimbursement shall be paid to the Executive on the 10th day of the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) the eighteen-month anniversary of the Termination Date; (ii) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which the Executive becomes eligible to receive substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Corporation’s making payments under this Section 5.5(b) would violate the nondiscrimination rules applicable to non-grandfathered plans under the ACA, or result in the imposition of penalties under the ACA, the parties agree to reform this Section 5.5(b) in a manner as is necessary to comply with the ACA.
(c) Consistent with the terms of any equity incentive plan or award agreementsof the Company, as approved by the stockholders, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights time-based equity-based compensation awards granted to the Executive during the Term of Employment Term shall become fully vested and exercisable for the remainder of their full term;; and
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based equity compensation awards other than stock options and stock appreciation rights that are intended granted to constitute performance-based compensation under Section 162(m)(4)(C) the Executive during the Term of the Code Employment shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “Change . The determination whether such performance goals are satisfied shall be in Control” shall mean the occurrence of any sole discretion of the following after Compensation Committee or the Effective Date:Board, as the case may be.
Appears in 2 contracts
Samples: Employment Agreement (Oculus Innovative Sciences, Inc.), Employment Agreement (Oculus Innovative Sciences, Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained hereinIf, if during the Employment Period, the Company shall terminate the Executive’s employment hereunder is terminated by the Executive other than for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (and other than on account of upon the Executive’s death or Disability), or if the Executive shall terminate his employment for Good Reason, in each case either case, in connection with, or within twenty-four (24) 12 months following following, a Change in ControlControl (any such termination of employment, a “Change in Control Termination”), the Executive Company shall be entitled to receive the Accrued Amounts and, subject have no further obligations to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the followingexcept as follows:
(i) a lump sum payment equal to two (2) times the sum of Company shall pay or provide the Executive’s Base Salary and Target Bonus for , to the year extent not theretofore paid, as soon as practicable after the Date of Termination (but in which no event later than 60 days after the Termination Date occurs of Termination): (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(iiA) a lump sum payment cash amount equal to the Executive’s Target sum of (1) the Annual Base Salary (which shall be the Annual Base Salary prior to reduction if the termination is for Good Reason because of a reduction in Annual Base Salary) through the Date of Termination, and (2) accrued vacation pay through the Date of Termination; (B) any other amounts or benefits required to be paid or provided pursuant to applicable law; (C) any reimbursement to which the Executive is entitled pursuant to Company policy, but which was not reimbursed prior to the Date of Termination; (D) any other earned but unpaid outstanding compensatory arrangements; and (E) a lump sum cash payment of a pro rata portion of the Annual Bonus that the Executive would have been entitled to receive pursuant to Section 2(b)(ii) hereof for the fiscal year in which the Date of Termination occurs, based upon the percentage of the fiscal year that elapsed through the Date of Termination (as determined by dividing (1) the number of days the Executive was employed during such year through the Date of Termination by (2) the number of days in accordance with Section 5.6such fiscal year) occurs (or if greaterand based on the Executive’s, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year Company’s and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreementsits Affiliates’, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable , actual performance for the remainder applicable performance period through the Date of their full termTermination (based on the good faith determination by the Board (or a duly authorized committee thereof) of the achievement of the applicable performance goals) ((A), (B), (C), (D) and (E), together, the “Accrued Benefits”);
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended the Company shall pay the Executive, on the 60th day following the Date of Termination, a lump sum cash amount equal to qualify as performance-based compensation under Section 162(m)(4)(Cthe sum of (A) 300% of the Code Annual Base Salary (which shall become fully vested and be the restrictions thereon Annual Base Salary prior to reduction if the termination is for Good Reason because of a reduction in Annual Base Salary), plus (B) 300% of the Target Annual Bonus (which shall lapse; provided that, any delays be the Target Annual Bonus prior to reduction if the termination is for Good Reason because of a reduction in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effectTarget Annual Bonus); and,
(iii) all on the 60th day following the Date of Termination, outstanding equity-based compensation awards other than stock options and stock appreciation rights compensatory awards, if any, that are intended subject to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and forfeiture shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedand become non-forfeitable.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 2 contracts
Samples: Employment Agreement (Howard Hughes Corp), Employment Agreement (Howard Hughes Corp)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections Section 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four (24) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section Sections 5, 6, Section 7, Section 7 and 8 and Section 9 of this Agreement, Agreement and his the Executive’s execution of a Release which becomes effective within thirty (30) twenty-one days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment Two equal payments each to be one half (1/2) of an amount equal to two three (23) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty ) and three (303) days following times the Termination Date: provided that, if Additional Bonus received in the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal prior to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs and twelve (12) times the average Quarterly Bonus received in the last twelve (12) quarters prior to the quarter in which the Change in Control occurs), . The first of which shall payments is to be paid within thirty (30) days 30)days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable yearyear and the second of which payments is to be paid on the first annual anniversary of the Termination Date.
(ii) If the Executive timely and properly elects health plan continuation coverage under COBRA, the Company or UC shall reimburse the Executive for the monthly COBRA premium paid by the Executive for the Executive and the Executive’s dependents. Such reimbursement shall be paid to the Executive on the first of the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) the eighteen -month anniversary of the Termination Date; (ii) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which the Executive receives substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Company’s payments under this Sub-Section 4.4(b) would violate the nondiscrimination rules applicable to non-grandfathered, insured group plans under the ACA, or result in the imposition of penalties under the ACA, the parties agree to reform this Sub-Section 4.4(b) in a manner as is necessary to comply with the ACA.
(b) Notwithstanding the terms The treatment of any outstanding equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term awards shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited determined in accordance with the terms of the applicable equity plan and the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s 's employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s 's death or Disability), in each case either concurrently with or within twenty-four (24) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, subject to the Executive’s 's compliance with Section 6, Section 7, 7 and Section 8 and Section 9 of this Agreement, Agreement and his execution of a Release which becomes effective within thirty (30) days following as provided therein, for which the Termination DateCompany assigns significant value in agreeing to this Section 5.4, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus Incentive for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) business days following the Termination Date: provided that, if expiration of the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,Period;
(ii) a lump sum payment equal to the Executive’s product of (i) the Target Bonus for the fiscal full calendar year in which the Date of Termination occurs and (ii) a fraction, the numerator of which is the number of days the Executive was employed by the Company during the year of termination and the denominator of which is the number of days in such year. This amount shall be paid no later than March 15th of the year following the year in which the Termination Date occurs;
(as determined in accordance with Section 5.6iii) occurs (or if greaterIf the Executive timely and properly elects continuation coverage under COBRA, the year Company shall reimburse the Executive for the difference between the monthly COBRA premium paid by the Executive for himself and his dependents and the monthly premium amount paid by similarly situated active executives. Such reimbursement shall be paid to the Executive on the fifteenth (15th) day of the month immediately following the month in which the Change in Control occurs), which Executive timely remits the premium payment. The Executive shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made eligible to receive such reimbursement until the beginning earliest of: (A) the two year anniversary of the second taxable year.termination date; (B) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (C) the date on which the Executive receives or becomes eligible to receive substantially similar coverage from another employers; and
(biv) Notwithstanding the The terms of any equity incentive plan or award agreementsagreements will determine to what extent, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted if any, such awards are accelerated for vesting and/or exercise periods , provided however with respect to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are initial equity award set forth in Section 4.4, the applicable award agreement and Restricted Shares that are required under Section 409A would have vested on the vesting date immediately following such termination shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedautomatically become vested upon such termination.
(cb) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Datefollowing:
Appears in 1 contract
Samples: Employment Agreement (Bankwell Financial Group, Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections Section 1 and 5, or without Cause (other than on account of the Executive’s death Death or Disability), in each case within twenty-four twelve (2412) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 5, Section 6, Section 7, 7 and Section 8 and Section 9 of this Agreement, Agreement and his execution of a Release which becomes effective within thirty (30) days following the Termination DateRelease, the Executive shall be entitled to receive the following:
(i) a the lump sum payment equal to of two (2) times the sum of the Executive’s Base Salary years’ salary and Target Bonus for the year in which the Termination Date occurs (or any accrued, but unused vacation pay, if greater, the year immediately preceding the year in which the Change in Control occurs)any, which shall be paid within thirty (30) 30 days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,;
(ii) a lump sum payment equal to the Executive’s Target earned but unpaid Annual Bonus subject to the Company’s Bonus Plan;
(iii) reimbursement for unreimbursed business expenses properly incurred by the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs)Executive, which shall be subject to and paid within thirty in accordance with the Company’s expense reimbursement policy;
(30iv) days following such employee benefits, if any, to which the Executive may be entitled under the Company’s Employee Benefit Plans as of the Termination Date; provided that, if in no event shall the Release Execution Period begins Executive be entitled to any payments in one taxable year and ends in another taxable year, payment shall not be made until the beginning nature of the second taxable year.severance or termination payments except as specifically provided herein; and
(bv) any additional awards, including any Long Term Incentive Plan awards as determined by the terms of such plan. Notwithstanding the terms of any equity incentive plan or award agreementsLong Term Incentive Plan, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights Long Term Incentive Plan awards granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(b) If the Executive timely and properly elects health continuation coverage under COBRA, the Company shall reimburse the Executive for the monthly COBRA premium paid by the Executive for himself and his dependents. Such reimbursement shall be paid to the Executive on the 15th day of the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) the twenty-four-month anniversary of the Termination Date; (ii) all outstanding equity-based compensation awards other than stock options the date the Executive is no longer eligible to receive COBRA continuation coverage; or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards the date on which the Executive receives/becomes eligible to receive substantially similar coverage from another employer or other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of source. Notwithstanding the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreementsforegoing, if the Company's making payments under this Section 5.4(b) would violate the nondiscrimination rules applicable performance goals are satisfiedto non-grandfathered plans under the Affordable Care Act (the “ACA”), or result in the imposition of penalties under the ACA, the parties agree to reform this Section 5.4(b) in a manner as is necessary to comply with the ACA.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if If the Executive’s employment hereunder Employment Period is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death due to your Disability) or Disability)by you for Good Reason, in each case case, within twenty-four (24) three months prior, upon or within 12 months following the consummation of a Change in Control (as defined below), then, subject to your execution and non-revocation of a Release in the manner provided in Section 5(a) above (except for the payments described in clause (i) of this Section 5(b), which shall not be subject to such Release requirement), you will be entitled to receive in lieu of the severance pay and benefits described in Section 5(a) above:
(i) the Accrued Obligations;
(ii) an amount equal to one-and-a-half times (1.5x) your annual Base Salary, less applicable withholdings, which shall be paid (A) if the Termination Date is within three months prior to the consummation of a Change in Control, in the Executive shall be entitled to receive same amounts (taking the Accrued Amounts and1.5x multiple into account) and at the same intervals as if the Employment Period had not ended, subject to or (B) if the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution Termination Date is within 12 months following the consummation of a Release which becomes effective Change in Control, in a single lump sum cash payment within thirty two and a half (302-1/2) days months following the Termination Date, the Executive shall be entitled to receive the following:;
(iiii) a lump sum payment an amount equal to two one-and-a-half times (21.5x) times the sum of the Executive’s Base Salary and Target Bonus your target Annual Incentive Award either for the year in which the Termination Date occurs (or if greaterit has not yet been established, the year target Annual Incentive Award established for the immediately preceding the year in which the Change in Control occursyear), which shall be paid (A) if the Termination Date is within thirty three months prior to the consummation of a Change in Control, in the same manner and at the same time that the Company pays other Company executive incentive awards under the Incentive Plan after the Termination Date, or (30B) days if the Termination Date is within 12 months following the consummation of a Change in Control, in a single lump sum cash payment within two and a half (2-1/2) months following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(iiiv) all outstanding equityany time-based compensation vesting equity awards other than granted to you under the Equity Plan shall immediately become vested upon your Termination Date;
(v) the Company will extend the post-termination exercise period with respect to all stock options or stock appreciation rights held by you until the earlier of (A) the date that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:is two
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s 's employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s 's death or Disability), in each case within twenty-four twelve (2412) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) 30 days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus 's Base Salary for the fiscal year in which three months immediately preceding the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) 30 days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding If the terms Executive timely and properly elects health continuation coverage under COBRA, the Company shall reimburse the Executive for the monthly COBRA premium paid by the Executive for himself and his dependents. Such reimbursement shall be paid to the Executive on the first day of any equity incentive plan or award agreements, as applicable:
the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during eighteen-month anniversary of the Employment Term shall become fully vested and exercisable for the remainder of their full term;
Termination Date; (ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended the date the Executive is no longer eligible to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested receive COBRA continuation coverage; and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards the date on which the Executive becomes eligible to receive substantially similar coverage from another employer or other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of source. Notwithstanding the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreementsforegoing, if the Company's making payments under this Section 5.4(b) would violate the nondiscrimination rules applicable performance goals are satisfiedto non-grandfathered plans under the ACA, or result in the imposition of penalties under the ACA, the parties agree to reform this Section 5.4(b) in a manner as is necessary to comply with the ACA.
(c) For purposes of this Agreement, “"Change in Control” " shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control Termination. In the event that (ai) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason concurrently with or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause within twelve (other than on account of the Executive’s death or Disability), in each case within twenty-four (2412) months following a Change in ControlControl for other than Cause, Disability, Retirement or the Executive’s death or (ii) the Executive shall be entitled elects to receive terminate his employment for Good Reason, then the Accrued Amounts andEmployer shall, subject to the provisions of Section 6 hereof, if applicable,
(A) pay to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination DateDate of Termination, the Executive shall be entitled to receive the following:
(i) a lump sum payment cash severance amount equal to two (2) times the sum Executive’s Average Annual Compensation if the Change in Control occurs on or before June 30, 2009 and one (1) times the Executive’s Average Annual Compensation if the Change in Control occurs after June 30, 2009; and
(B) maintain and provide for a period ending at the earlier of (i) two (2) years subsequent to the Date of Termination if the Change in Control occurs on or before June 30, 2009 and one (1) year subsequent to the Date of Termination if the Change in Control occurs after June 30, 2009 or (ii) the date of the Executive’s Base Salary full-time employment by another employer (provided that the Executive is entitled under the terms of such employment to benefits substantially similar to those described in this subparagraph (B)), at no cost to the Executive, the Executive’s continued participation in all group insurance, life insurance, health and Target Bonus for accident insurance and disability insurance offered by the year Employer in which the Termination Executive was participating immediately prior to the Date occurs (of Termination; provided that any insurance premiums payable by the Employer or any successors pursuant to this Section 5(h)(B) shall be payable at such times and in such amounts as if greaterthe Executive was still an employee of the Employer, subject to any increases in such amounts imposed by the insurance company or COBRA, and the amount of insurance premiums required to be paid by the Employer in any taxable year shall not affect the amount of insurance premiums required to be paid by the Employer in any other taxable year; and provided further that if the Executive’s participation in any group insurance plan is barred, the Employer shall either arrange to provide the Executive with insurance benefits substantially similar to those which the Executive was entitled to receive under such group insurance plan or, if such coverage cannot be obtained, pay a lump sum cash equivalency amount within thirty (30) days following the Date of Termination based on the annualized rate of premiums being paid by the Employer as of the Date of Termination; and
(C) pay to the Executive, in a lump sum within thirty (30) days following the Date of Termination, a cash amount equal to the projected cost to the Employer of providing benefits to the Executive for a period of two (2) years if the Change in Control occurs on or before June 30, 2009 and one (1) year if the Change in Control occurs after June 30, 2009 pursuant to any other employee benefit plans, programs or arrangements offered by the Employer in which the Executive was entitled to participate immediately prior to the Date of Termination (excluding (y) stock option plans, restricted stock plans and employee stock ownership plans of the Employer and (z) bonuses and other items of cash compensation), with the projected cost to the Employer to be based on the costs incurred for the calendar year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Date of Termination Date: provided that, if the Release Execution Period begins in one taxable year occurs and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal with any automobile-related costs to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable yearexclude any depreciation on Bank-owned automobiles.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Samples: Employment Agreement (Willow Financial Bancorp, Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the ExecutiveEmployee’s employment hereunder is terminated by the Executive Employee for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the ExecutiveEmployee’s death or Disability), in each case within twenty-four three (243) months prior to or twelve (12) months following a Change in Control, the Executive Employee shall be entitled to receive the Accrued Amounts and, and subject to the ExecutiveEmployee’s compliance with Section 6, Section 7, Section 8 8, and Section 9 of this Agreement, Agreement and his execution of a the Release which becomes effective within thirty (30) days following by the Termination Dateend of the Release Execution Period, the Executive Employee shall be entitled to receive the followingreceive:
(i) a lump sum payment equal prior to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greaterFunding Date, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executivegreater of fifty thousand dollars ($50,000.00) or twenty percent (20%) of the Employee’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs)then Base Salary, which shall be paid amount, which must occur within thirty (30) days the 60th day following the Termination Date; provided that;
(ii) on or after the Funding Date, if an amount equal to the Employee’s then Base Salary, which amount shall be paid in a single lump-sum on the date the Release Execution Period begins in one taxable year and ends in another taxable yearbecomes effective, payment shall not be made until which must occur within the beginning of 60th day following the second taxable yearTermination Date.
(b) upon determination by the Company’s Board of Directors or Compensation Committee, as appropriate, to be made in its sole discretion as to whether to grant a bonus, and if such bonus is granted, the amount, form and payment schedule. For the avoidance of doubt, Employee shall not be entitled to any bonus solely for reason of termination, unless the Board of Directors or the Compensation Committee, as appropriate, in its sole discretion awards a bonus to Employee.
(c) If such termination occurs on or after the Health Care Plan Funding Date and the Employee timely and properly elects health continuation coverage under COBRA, the Company shall reimburse the Employee for the monthly COBRA premium paid by the Employee for himself and his dependents. Such reimbursement shall be paid to the Employee on the 10th day of the month immediately following the month in which the Employee timely remits the premium payment. The Employee shall be eligible to receive such reimbursement until the earliest of: (i) the eighteen-month anniversary of the Termination Date; (ii) the date the Employee is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which the Employee becomes eligible to receive substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Company’s making payments under this Section 5.5(c) would violate the nondiscrimination rules applicable to non-grandfathered plans under the ACA, or result in the imposition of penalties under the ACA, the parties agree to reform this Section 5.5(c) in a manner as is necessary to comply with the ACA.
(d) Consistent with the terms of any equity incentive plan or award agreementsof the Company, as approved by the stockholders, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights time-based equity-based compensation awards granted to the Executive Employee during the Term of Employment Term shall become fully vested and exercisable for the remainder of their full term;; and
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based equity compensation awards other than stock options and stock appreciation rights that are intended granted to constitute performance-based compensation under Section 162(m)(4)(C) the Employee during the Term of the Code Employment shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “Change . The determination whether such performance goals are satisfied shall be in Control” shall mean the occurrence of any sole discretion of the following after Compensation Committee or the Effective Date:Board, as the case may be.
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if If the Executive’s employment hereunder under this Agreement is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four (24) months following a Change in Control, the Executive shall be entitled to receive the following (in lieu of any payment under Section 5.2):
(1) Accrued Amounts and, subject to Obligations paid in a lump sum in cash in accordance with the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) Company's customary payroll practices no later than 60 days following the Termination Date; provided, however, that any portion of the Executive Accrued Obligations which consists of Annual Bonus, Equity Awards, deferred compensation, insurance benefits or other employee benefits shall be entitled determined and paid in accordance with the terms of the AICP, Equity Incentive Plan, award agreement and other relevant plan or policy as applicable to receive the following:Executive;
(i2) a Pro-Rated Annual Bonus, payable in accordance with Section 5.5;
(3) A lump sum payment equal to two [two/three] times [(2) times 2x)/(3x)] the sum of the following, payable in accordance with Section 5.5:
(a) Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs); plus
(b) The greater of (i) the Executive’s Target Bonus, or (ii) the average of the sum of the amounts earned by the Executive under the AICP or, if applicable, the Company’s 7 Approval required by Compensation Committee for Xx. Xxxx. Approval required by CEO or CPO for other NEOs. Short Term Incentive Plan, with respect to the three (3) calendar years immediately preceding the calendar year during which the Change in Control occurs (if the Executive has not been employed by the Company for three (3) years, the current year’s Target Bonus shall be used to complete any missing years for the three (3) year average); plus
(c) Annual value of retirement benefits and executive benefit programs referenced in Sections 4.4 and 4.5, which for purposes of this Section 5.4 shall be paid within thirty 7.5% of Executive’s Base Salary on the Termination Date.
(304) days If COBRA continuation coverage is properly elected under the Company’s group medical plan(s) by the Executive (and the Executive’s spouse and dependents, if any, covered by the Company’s group medical plans on the Executive’s Termination Date), the Company shall pay the cost of such coverage for the Executive (and such spouse and dependents, if applicable), payable in accordance with Section 5.5 of this Agreement. The Executive shall be eligible to receive COBRA continuation coverage through the Company until the earlier of (A) twenty-four (24) months following the Termination Date: provided that; (B) the date Executive is no longer eligible for COBRA continuation coverage through the Company; or (C) the date on which the Executive receives substantially similar coverage from another employer or other source. If applicable, if such payments or provision of benefits shall be in compliance with Section 6 herein. The Executive acknowledges and agrees that the Release Execution Period begins value of this coverage may be includible in one taxable year the Executive’s gross income for federal and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,state income tax purposes;
(ii5) If allowed under the current insurance plan, a lump sum payment equal to eighteen (18) months of premiums of term life insurance coverage at the Executive’s Target Bonus coverage levels and terms as provided for the fiscal year in which Executive immediately before the Termination Date (as determined Date, payable directly to the then current insurance carrier in accordance with Section 5.65.5; and
(6) occurs (or if greaterOutplacement counseling, the year in which the Change in Control occurs), scope and provider of which shall be paid within thirty selected by the Company, continuing until the earlier to occur of the following: (30A) days following the Executive finds comparable employment or (B) two years from the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted payable directly to the Executive during the Employment Term shall become fully vested provider and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes Section 5.5 of this Agreement, “Change in Control” shall mean the occurrence . The use of any other provider or outplacement-related services by the Executive would require the approval of the following after [Compensation Committee/Chief Executive Officer or the Effective Date:Chief People Officer].8
Appears in 1 contract
Change in Control Termination.
(a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections Section 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four three months before or twelve (2412) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 6 of this Agreement, Agreement and his the Executive’s execution of a Release which becomes effective within thirty (30) 21 days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two one and a half (21½) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) 30 days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) If the Executive timely and properly elects health plan continuation coverage under COBRA, the Company shall reimburse the Executive for the monthly COBRA premium paid by the Executive for the Executive and the Executive’s dependents. Such reimbursement shall be paid to the Executive on the first of the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) the twelve-month anniversary of the Termination Date; (ii) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which the Executive receives substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Company’s payments under this Section 5.3(b) would violate the nondiscrimination rules applicable to non- grandfathered, insured group plans under the ACA, or result in the imposition of penalties under the ACA, the parties agree to reform this Section 5.3(b) in a manner as is necessary to comply with the ACA.
(c) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights awards, that are do not intended to qualify as performance-vest based compensation under Section 162(m)(4)(C) on the attainment of the Code performance goals shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,and
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights awards, that are intended to constitute performance-vest based compensation under Section 162(m)(4)(C) on the attainment of the Code performance goals shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(cd) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date::
Appears in 1 contract
Samples: Employment Agreement (Dragonfly Energy Holdings Corp.)
Change in Control Termination. (a) Notwithstanding any other provision Subject to the conditions contained hereinin this Agreement, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four (24) months following upon a Change in ControlControl Termination, the Executive Tufto shall be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 following compensation and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the followingbenefits:
(i) Upon Tufto’s entry into the Release Agreement, ISS shall pay to Tufto a lump sum severance payment equal to two (2A) times twice the sum amount of Tufto’s annual salary from ISS (or any predecessor entity or related entity) in effect as of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which date of the Change in Control occurs), Termination plus (B) the total annual incentive pay to which shall be paid within thirty Tufto is entitled from ISS (30or any predecessor entity or related entity) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning as of the second taxable yeardate of the Change in Control Termination; and,for purposes of this paragraph, the terms “predecessor entity” and “related entity” shall have the meanings set forth in Section 280G of the Code.
(ii) Any and all outstanding Options owned by Tufto with a lump sum payment equal to per share exercise price that is less than the Executive’s Target Bonus for Fair Market Value on the fiscal year in which trading day before the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which date of the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully immediately vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code date of the Change in Control Termination, and Tufto shall become fully vested have 90 days after the date of the Change in Control Termination (or such shorter period as is provided in the Plan, or any successor or replacement plan of a similar nature, or an agreement governing the Option) to exercise all of such Options; any other Options owned by Tufto shall automatically terminate; and the restrictions thereon risks of forfeiture on any outstanding Restricted Stock or Restricted Stock Units owned by Tufto shall immediately lapse; . Except as expressly provided thatherein, to the extent that there is any delays in conflict between the settlement provisions of this Section 6(d)(ii) and the provisions of the Plan or payment any agreement governing Options, Restricted Stock and Restricted Stock Units owned by Tufto, the provisions of such awards that are set forth in the applicable award agreement and that are required under this Section 409A 6(d)(ii) shall remain in effect; and,govern.
(iii) all outstanding equity-based compensation awards other than stock options ISS, pursuant to federal and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) state law, will provide, for a period beginning on the date of Tufto’s Change in Control Termination and ending on the earlier of the Code shall remain outstanding and shall vest date that Tufto obtains new employment or be forfeited in accordance with the terms two years after such date of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “Change in Control” shall mean Control Termination (the occurrence of any “COBRA Period”), a continuation of the following after group medical insurance coverage previously provided to Tufto by ISS; and, during the Effective Date:COBRA Period, ISS will pay that portion of the premium for group medical insurance that it paid during Tufto’s employment.
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained hereinIn addition to the payments and benefits provided in Section 9(a), and subject to the provisions of Section 9(f), if the Executive’s employment hereunder is terminated (x) by the Company without Cause or (y) by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability)Reason, in each either case within twenty-four (24) months following after the occurrence of a Change in Control, (1)the Company shall pay the Executive an amount equal to 12 months’ Base Salary, which shall be payable in the form of salary continuation commencing within 60 days following the Executive’s Date of Termination in accordance with the Company’s regular payroll practice or, if the Change of Control qualifies as a “change in ownership or effective control” within the meaning of Section 409A, in a cash lump sum payable within two and one-half months after the Executive’s “separation from service” as defined for purposes of Section 409A, (2)the Executive shall be entitled entitled, if applicable, to receive a pro-rated bonus for the Accrued Amounts andyear of termination (other than 2013) (calculated at the end of the fiscal year and then pro-rated through the Date of Termination), subject provided that the applicable performance targets have been met and bonuses are paid generally to similarly situated executives at the Executive’s compliance Company, and any such payments shall be made when otherwise due in accordance with the provisions of Section 6, Section 7, Section 8 3 and Section 9 4 of this Agreement, (3)the Company shall immediately vest any outstanding unvested Restricted Stock Units and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive any such Restricted Stock Units shall be entitled settled within 30 days after Executive’s “separation from service” as defined for purposes of Section 409A, (4)the period for determining whether the performance conditions for vesting of any outstanding unvested Performance Restricted Stock Units have been satisfied shall be extended to receive the following:
eighteen (18) month anniversary of the Date of Termination, and any Performance Restricted Stock Units which satisfy the performance conditions during such period shall be vested and settled within 30 days after the performance conditions have been satisfied, (5)the employment condition for vesting of any outstanding unvested Performance Options shall be deemed satisfied, and the period for exercise of any 11 Performance Options (to the extent otherwise exercisable) shall not expire until (i) a lump sum payment equal to two the eighteen (218) times month anniversary of the sum Date of Termination or (ii) if later, such date as the Executive’s Base Salary Service (as defined in the Omnibus Plan) with the Company shall terminate (but in no event beyond the remaining term of the option), and Target Bonus (6)if Executive timely elects continuation coverage pursuant COBRA for Executive and his eligible dependents, within the time period prescribed by COBRA, the Company will monthly reimburse Executive for the year COBRA premiums for such coverage (at the coverage levels in effect immediately prior to the Date of Termination) for Executive and his covered dependents until the earliest of (x) twelve months from the Date of Termination or (y) the date on which the Termination Date occurs (or if greaterExecutive is eligible to receive subsequent employer-provided coverage, the year immediately preceding the year in which the Change in Control occurs)provided, which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not that such COBRA reimbursements will be made until by the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted Company to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance consistent with the terms Company’s normal expense reimbursement policy and will be taxable to the extent required to avoid any adverse consequences to the Executive or to the Company under either Code Section 105(h) or the Patient Protection and Affordable Care Act of the applicable award agreements, if the applicable performance goals are satisfied2010.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Samples: Employment Agreement
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four three (243) months prior to or twelve (12) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 8, Section 9 and Section 9 10 of this Agreement, Agreement and his execution of a Release which becomes effective within thirty (30) days following by the Termination Dateend of the Release Execution Period, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times one time the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs)Salary, which shall be paid within thirty (30) days in six equal monthly installments following the Termination Date: provided that. If Executive violates Section 6, if the Release Execution Period begins in one taxable year Section 7, Section 8, Section 9, and ends in another taxable year, payment shall not be made until the beginning Section 10 of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greaterthis Agreement, the year in which the Change in Control occurs), which Corporation shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning entitled to repayment of the second taxable yearany severance benefits.
(b) If the Executive timely and properly elects health continuation coverage under COBRA, the Corporation shall reimburse the Executive for the monthly COBRA premium paid by the Executive for himself and his dependents. Such reimbursement shall be paid to the Executive on the 10th day of the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) the twelve-month anniversary of the Termination Date; (ii) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which the Executive becomes eligible to receive substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Corporation’s making payments under this Section 5.5(b) would violate the nondiscrimination rules applicable to non-grandfathered plans under the ACA, or result in the imposition of penalties under the ACA, the parties agree to reform this Section 5.5(b) in a manner as is necessary to comply with the ACA.
(c) Consistent with the terms of any equity incentive plan or award agreementsof the Company, as approved by the stockholders, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights time-based equity-based compensation awards granted to the Executive during the Term of Employment Term shall become fully vested and exercisable for the remainder of their full term;; and
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based equity compensation awards other than stock options and stock appreciation rights that are intended granted to constitute performance-based compensation under Section 162(m)(4)(C) the Executive during the Term of the Code Employment shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “Change . The determination whether such performance goals are satisfied shall be in Control” shall mean the occurrence of any sole discretion of the following after Compensation Committee or the Effective Date:Board, as the case may be.
Appears in 1 contract
Samples: Employment Agreement (Oculus Innovative Sciences, Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained hereinIf, if during the Employment Period, the Company terminates Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s due to death or Disability), there is a Non-Renewal as a result of the Company’s delivery of a Notice of Non-Renewal, or Executive terminates employment for Good Reason, in each case case, upon or within twenty-four (24) 24 months following the consummation of a Change in Control, the Executive shall be entitled to receive the Accrued Amounts andthen, subject to Section 11(j) and, in the case of all payments and benefits other than the Accrued Obligations and the Other Benefits, Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 execution within 50 days of this Agreementthe Date of Termination, and his execution non-revocation, of a Release which becomes effective within thirty (30) days following the Termination DateRelease, the Company shall pay to Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greaterAccrued Obligations, the year immediately preceding Unpaid Annual Bonus, the year Health Care Benefits and the Other Benefits in which accordance with the Change in Control occursterms of Sections 5(a)(i), which shall be paid within thirty (30) days following the Termination Date: provided thatii), if the Release Execution Period begins in one taxable year (v), and ends in another taxable year(vi), payment shall not be made until the beginning of the second taxable year; and,respectively;
(ii) a lump sum payment prorated Annual Bonus in respect of the fiscal year of the Company in which the Date of Termination occurs, with such amount to equal to the Executive’s product of (A) the Target Annual Bonus for the fiscal year in which the Date of Termination occurs, and (B) a fraction, (I) the numerator of which is the number of days that have elapsed in the fiscal year of the Company in which the Date of Termination occurs as of the Date of Termination, and (II) the denominator of which is 365 (the “Prorated Target Bonus”), which Prorated Target Bonus shall be paid in a lump sum in cash on the first payroll date following the Release Effective Date (as determined other than any portion of such Annual Bonus that was deferred, which portion shall instead be paid in accordance with Section 5.6the applicable deferral arrangement and any election thereunder);
(iii) occurs an amount equal to the product of (or if greater, A) two multiplied by (B) the sum of (x) the Annual Base Salary and (y) the Target Annual Bonus as in effect for the fiscal year of the Company in which the Change Date of Termination occurs, payable in Control occurs), which shall be paid within thirty (30) days a lump sum on the first payroll date following the Termination Release Effective Date;
(iv) a cash payment in an amount equal to six months’ health care premiums at the Prevailing COBRA Rate for Executive and each of his eligible dependents, payable in a lump sum on the first payroll date following the Release Effective Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.and
(bv) Notwithstanding the terms for purposes of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights awards granted to Executive following the Executive during Effective Date, that remain outstanding on the Employment Term Date of Termination, and notwithstanding anything to the contrary in the applicable award agreement, the 2019 LTIP, or any successor or similar plan, such equity incentive awards shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation with any equity incentive awards other than stock options or stock appreciation rights that are not intended subject to qualify as performance-based vesting criteria vesting at “target” levels of achievement). For the avoidance of doubt, if applicable, any amount payable pursuant to Section 5(b) shall be determined without regard to any reduction in compensation under Section 162(m)(4)(C) that resulted in Executive’s termination of employment for Good Reason. If Executive does not execute the Code Release within 50 days following the Date of Termination, or if Executive revokes the Release, Executive shall become fully vested be entitled to only the Accrued Obligations and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are Other Benefits. Other than as set forth in this Section 5(a) or 5(b), as applicable, in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
event of a termination of Executive’s employment by the Company without Cause (iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended due to constitute performancedeath or Disability), due to a Non-based compensation under Section 162(m)(4)(C) Renewal as a result of the Code Company’s delivery of a Notice of Non-Renewal, or by Executive for Good Reason, the Company and its Affiliates shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of have no further obligation to Executive under this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:.
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained hereinIf, if during the Employment Period, the Company shall terminate the Executive’s employment hereunder is terminated by the Executive other than for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (and other than on account of upon the Executive’s death or Disability), or if the Executive shall terminate his employment for Good Reason, in each case either case, within twenty-four (24) months following prior and in connection with, or within 12 months following, a Change in ControlControl (any such termination of employment, a “Change in Control Termination”), the Executive Company shall be entitled to receive the Accrued Amounts and, subject have no further obligations to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the followingexcept as follows:
(i) a lump sum payment equal to two (2) times the sum of Company shall pay or provide the Executive’s Base Salary and Target Bonus for , to the year extent not theretofore paid, as soon as practicable after the Date of Termination (but in which no event later than 60 days after the Termination Date occurs of Termination): (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(iiA) a lump sum payment cash amount equal to the Executive’s Target sum of (1) the Annual Base Salary (which shall be the Annual Base Salary prior to reduction if the termination is for Good Reason because of a reduction in Annual Base Salary) through the Date of Termination, and (2) accrued vacation pay through the Date of Termination; (B) any other amounts or benefits required to be paid or provided pursuant to applicable law; (C) any reimbursement to which the Executive is entitled pursuant to Company policy, but which was not reimbursed prior to the Date of Termination; (D) any other earned but unpaid outstanding compensatory arrangements; and (E) a lump sum cash payment of a pro rata portion of the Annual Bonus that the Executive would have been entitled to receive pursuant to Section 2(b)(ii) hereof for the fiscal year in which the Date of Termination occurs, based upon the percentage of the fiscal year that elapsed through the Date of Termination (as determined by dividing (1) the number of days the Executive was employed during such year through the Date of Termination by (2) the number of days in accordance with Section 5.6such fiscal year) occurs (or if greaterand based on the Executive’s, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year Company’s and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreementsits Affiliates’, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable , actual performance for the remainder applicable performance period through the Date of their full termTermination (based on the good faith determination by the Board (or a duly authorized committee thereof) of the achievement of the applicable performance goals) ((A), (B), (C), (D) and (E), together, the “Accrued Benefits”);
(ii) all outstanding equity-based compensation awards other than stock options the Company shall pay the Executive, on the 60th day following the Date of Termination or stock appreciation rights that are not intended Change in Control, whichever is later, a lump sum cash amount equal to qualify as performance-based compensation under Section 162(m)(4)(Cthe sum of (A) 200% of the Code Annual Base Salary (which shall become fully vested and be the restrictions thereon shall lapse; provided thatAnnual Base Salary prior to reduction if the termination is for Good Reason because of a reduction in Annual Base Salary), any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effectplus (B) ONE MILLION AND 00/100 DOLLARS ($1,000,000.00); and,
(iii) all on the 60th day following the Date of Termination, outstanding equity-based compensation awards other than stock options and stock appreciation rights compensatory awards, if any, that are intended subject to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and forfeiture shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedand become non- forfeitable.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four three (243) months prior to or twelve (12) months following a Change in Control, the Executive shall be entitled to receive receive: (i) the Accrued Amounts and, Amounts; (ii) subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 Sections 6 through 11 of this Agreement, Agreement and his execution of a Release which becomes effective within thirty (30) days following by the Termination Dateend of the Release Execution Period, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) 1.5 times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs)Salary, which shall be paid within thirty (30) days following on the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days 30th day following the Termination Date; provided that, if and (iii) 1.5 times the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable yeartarget Annual Bonus amount.
(b) If the Executive timely and properly elects health continuation coverage under COBRA, the Corporation shall reimburse the Executive for the monthly COBRA premium paid by the Executive for himself and his dependents. Such reimbursement shall be paid to the Executive on the 10th day of the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) the twelve-month anniversary of the Termination Date; (ii) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which the Executive becomes eligible to receive substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Corporation’s making payments under this Section 5.5(b) would violate the nondiscrimination rules applicable to non-grandfathered plans under the ACA, or result in the imposition of penalties under the ACA, the parties agree to reform this Section 5.5(b) in a manner as is necessary to comply with the ACA.
(c) Consistent with the terms of any equity incentive plan or award agreementsof the Corporation, as approved by the stockholders, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights time-based equity-based compensation awards granted to the Executive during the Term of Employment Term shall become fully vested and exercisable for the remainder of their full term;; and
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based equity compensation awards other than stock options and stock appreciation rights that are intended granted to constitute performance-based compensation under Section 162(m)(4)(C) the Executive during the Term of the Code Employment shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “Change . The determination whether such performance goals are satisfied shall be in Control” shall mean the occurrence of any sole discretion of the following after Compensation Committee or the Effective Date:Board, as the case may be.
Appears in 1 contract
Samples: Employment Agreement (Sonoma Pharmaceuticals, Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections Section 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four twelve (2412) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts (paid in accordance with Section 4.1(a) hereof) and, subject to the Executive’s compliance with Section 6, Section 7, and Section 8 and Section 9 of this Agreement, Agreement and his the Executive’s execution of a Release which becomes effective within thirty (30) days following the Termination DateRelease Execution Period, the Executive shall be entitled to receive the following:
(ia) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus target bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty seventy (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (3070) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.;
(b) Notwithstanding if the terms Executive timely and properly elects medical and/or dental continuation coverage under COBRA, the Company shall reimburse the Executive for the COBRA Payment. The Executive shall provide evidence to the Company of any equity incentive plan or award agreementssuch premium payment no later than the last day of the month following the month of applicable coverage. If the Executive timely remits evidence of the applicable premium payment to the Company, as applicable:
the Company shall pay the Executive the COBRA Payment no later than the last day of the second calendar month following the month of applicable coverage. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during eighteen (18)-month anniversary of the Employment Term shall become fully vested and exercisable for the remainder of their full term;
Termination Date; (ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended the date the Executive is no longer eligible to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested receive COBRA continuation coverage; and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all the date on which the Executive becomes eligible to receive substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Company’s making payments under this Section 4.4(b) would violate the nondiscrimination rules applicable to non-grandfathered plans under the ACA, or result in the imposition of penalties under the ACA and the related regulations and guidance promulgated thereunder, the parties agree to reform this Section 4.4(b) in a manner as is necessary to comply with the ACA; and
(c) the treatment of any outstanding equity-based compensation cash incentive and equity awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited determined in accordance with the terms of the Computer Programs and Systems, Inc. Amended and Restated 2019 Incentive Plan or any successor plan in which similarly situated executives of the Company are eligible to participate and the applicable award agreements, if the applicable performance goals are satisfied.
(cd) For purposes of this Agreement, “Change in Control” shall mean have the occurrence of meaning set forth in the Computer Programs and Systems, Inc. Amended and Restated 2019 Incentive Plan Agreement or any of the following after the Effective Date:successor plan.
Appears in 1 contract
Samples: Employment Agreement (Computer Programs & Systems Inc)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, in the event of a Change in Control, if the Executive’s 's employment hereunder is terminated by the Executive for Good Reason Reason, or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Without Cause (other than on account of the Executive’s 's death or Disability), in each case within twenty-four twelve (2412) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts andreceive, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following Release, in accordance with the Termination Dateterms and conditions herein, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two the Accrued Amounts (2as defined in Section 6.1(a) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occursabove), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,;
(ii) a lump sum Severance payment equal to the to: (A) a flat eighteen (18) months or 1.5x of Executive’s Target annual Base Salary, plus (B) their full Incentive Bonus for the that fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.and
(b) Notwithstanding the terms of any equity incentive plan plans or any applicable award agreements, as applicableExecutive shall also be entitled to the payment of:
(i) in the case of a Change in Control, all outstanding stock price conditions from the Equity Awards will be deemed to have been met. If the Equity Awards are equitably assumed by the ongoing corporation based on its value at the Change in Control, vesting will occur in accordance with the original time vesting schedule. If the Executive’s employment terminates after the Change in Control due to Termination by the Company Without Cause, Termination by the Executive For Good Reason, or termination as a result of the Executive’s death or Disability, any unvested stock options or stock appreciation rights granted portion of the Equity Awards will vest upon the Termination Date. If the Executive’s employment terminates after the Change in Control for any other reason, any unvested portion of the Equity Awards will be forfeited. Notwithstanding the forgoing, if the ongoing corporation does not equitably assume the Equity Awards, vesting will accelerate to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights Change in Control date; provided, however, that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement Equity Award agreement, and that are required under Section 409A 409A, shall remain in effect; and,
(c) The Executive shall also be entitled to:
(i) if the Executive timely and properly elects health continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), partial reimbursement for the monthly health care insurance premiums increase paid by the Executive for themselves and their dependents, calculated as the difference between the amount of monthly health care insurance premiums paid by the Executive pre- and post-COBRA coverage; provided, however, that the Executive shall comply with applicable election and eligibility requirements. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) the eighteen-month anniversary of the Termination Date; (ii) the date the Executive is no longer eligible to receive COBRA continuation coverage; or (iii) all outstanding equity-based compensation awards the date on which the Executive receives or becomes eligible to receive substantially similar health care coverage from another employer or other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedsource.
(cd) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Samples: Executive Employment Agreement (TILT Holdings Inc.)
Change in Control Termination. (ai) Notwithstanding any other provision contained hereinIf, if within the 13-month period immediately following the occurrence of a Change in Control, the Executive’s employment hereunder by the Company is terminated by the Company other than for Cause (other than a termination for Disability or death) or by the Executive for Good Reason or by (subject, if applicable to the proviso set forth in the first sentence of Section 4 (c)(ii)), then the Company on account shall pay to the Executive (i) a cash payment equal to three times the sum of its failure (A) the Executive’s Annual Base Salary immediately prior to renew the Agreement in accordance with Sections 1 Date of Termination and 5, or without Cause (other than on account B) the Applicable Bonus Amount; and (ii) any unpaid amounts of the Executive’s death Annual Base Salary for periods prior to the Date of Termination and earned annual bonuses for completed fiscal years prior to the Date of Termination. The cash payments described in clause (i) and (ii) of the preceding sentence shall be made in a lump sum within 30 days following the Date of Termination. Notwithstanding the foregoing, if the amounts of such payments cannot be finally determined on or Disabilitybefore a date when a payment is due, the Company shall pay to the Executive on such day an estimate, as reasonably determined 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, if any, as soon as the amount thereof can be determined. The Company shall also provide to the Executive (and, as applicable, his eligible dependents), in each case within twenty-four the event of such a termination continued participation at the Company’s expense in the Company’s medical, dental, prescription and vision care insurance plans (24or substantially equivalent coverage under an alternative arrangement) for 12 months following the Date of Termination (or, if earlier, until the date the Executive obtains alternative coverage from a Change in Controlsubsequent employer) following which, if no such alternative coverage has been obtained, the Executive shall will be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited elect COBRA continuation coverage in accordance with the terms provisions of Section 4980B of the applicable award agreementsCode, if which COBRA coverage period shall begin at the applicable performance goals are satisfiedclose of the period of such continued participation.
(cii) For purposes of this Agreement, a “Change in Control” shall mean Shall be deemed to have occurred on the occurrence of any of the following first date after the Effective Date:Date on which (1) any Person (as defined below) shall acquire, whether by purchase, exchange, tender offer, merger, consolidation or otherwise, beneficial ownership of securities of the Company constituting fifty percent (50%) or more of the combined voting power of the securities of the Company, (2) any Person shall acquire all or substantially all of the assets of the Company pursuant to a sale, dissolution or liquidations or (3) any Person shall acquire the ability to appoint or elect a majority of the members of the Board. For purposes of the preceding sentence, “Person” shall have the meaning given in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended from time to time, as such term is modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) Holdings, Xxxxxx X. Xxx Partners or Xxxxxx X. Xxx Equity fund IV, L.P., Evercore Capital Partners L.P. and each of their respective affiliates (the “Designated Investors”), (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities and (iv) a corporation owned, directly or indirectly, by the Designated Investors, such that the aggregate ownership of securities or assets of the Company or the ability to appoint or elect directors of the Company that is attributable to such Designated Investors would not decrease to a level that would result in a Change in Control, if such ownership or ability was deemed to be held directly in the Company. The completion of an initial public offering in which no Person acquires beneficial ownership of fifty percent (50%) or more of the combined voting power of the securities of such Person shall not constitute a Change in Control, nor shall the acquisition of beneficial ownership of securities of the Company by a Person which has a class of securities registered under Section 12 of the Securities Exchange Act of 1934, as amended, if such acquisition does not result in the Designated Investors owning thirty percent (30%) or less of the combined voting power of the securities of the Company. Notwithstanding the foregoing, other than for purposes of the existence of Deemed Good Reason (as defined in Section 4(c)(i)), a Change in Control shall be deemed to have occurred on the date when the Designated Investors together with the senior management of the Company (as determined by the Designated Investors) cease to beneficially own at least thirty percent (30%) or more of the combined voting power of the securities of the Company (a “Limited Change in Control”).
(iii) For purposes of this Agreement, the Executive’s employment shall be deemed to have been terminated within the thirteen month period following a Change in Control and during the Term by the Company without Cause (and shall be governed by this Section 5(d)), if the Executive’s employment is terminated by the Company without cause either (i) during the 120 day period prior to the execution of an agreement, the consummation of which would result
in a Change in Control or (ii) following the execution of an agreement, the consummation of which would result in a Change in Control and such termination is effective at the time, or during the pendency, of such Change in Control (in either case whether or not such Change in Control actually occurs).
Appears in 1 contract
Samples: Employment Agreement (Vertis Inc)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four three (243) months prior to or within twelve (12) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty sixty (3060) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal installment payments payable in accordance with the Company’s normal payroll practices, but no less frequently than monthly, which are in the aggregate equal to two (2) 1.5 times the sum of the Executive’s Base Salary and Target Bonus annual rate of base salary for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid begin within thirty sixty (3060) days following the Termination Date: Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment payments shall not be made begin until the beginning of the second taxable year; and,year; provided further that, the first installment payment shall include all amounts that would otherwise have been paid to the Executive during the period beginning on the Termination Date and ending on the first payment date if no delay had been imposed;
(ii) a lump sum payment equal to the Executive’s Target Bonus product of (i) the Annual Incentive, if any, that the Executive would have earned for the fiscal calendar year in which the Termination Date (as determined in accordance with Section 5.62.6) occurs based on achievement of the applicable performance goals for such year and (or if greaterii) a fraction, the numerator of which is the number of days the Executive was employed by the Company during the year of termination and the denominator of which is the number of days in such year (the “Pro-Rata Bonus”). This amount shall be paid on the date that annual bonuses are paid to similarly situated executives, but in no event later than two-and-a-half (2 1/2) months following the end of the calendar year in which the Change in Control Termination Date occurs.
(iii) If the Executive timely and properly elects health continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), which the Company shall reimburse the Executive for the difference between the monthly COBRA premium paid by the Executive for the [himself/herself] and [his/her] dependents and the monthly premium amount paid by similarly situated active executives. Such reimbursement shall be paid within thirty (30) days to the Executive on the 15th day of the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) the eighteen-month anniversary of the Termination Date; provided thatDate; (ii) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which the Executive becomes eligible to receive substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Release Execution Period begins Company’s making payments under this Section 2.4(a) would violate the nondiscrimination rules applicable to non-grandfathered plans under the Affordable Care Act (the “ACA”), or result in one taxable year the imposition of penalties under the ACA and ends the related regulations and guidance promulgated thereunder), the parties agree to reform this Section 2.4(a) in another taxable year, payment shall not be made until a manner as is necessary to comply with the beginning of the second taxable yearACA.
(biv) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) of the Termination Date, all outstanding unvested stock options or stock appreciation rights equity awards granted to the Executive during the Employment Term that are then outstanding and unvested shall become fully vested and exercisable immediately thereon, and all stock options granted to the Executive that are then outstanding shall remain exercisable for a period of one year following the Termination Date, or, if shorter for a given stock option, for the remainder of their that stock option’s full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation . For avoidance of doubt, this provision shall serve only to expand, and not to reduce the Executive’s rights that are not intended with respect to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedequity award.
(cb) For purposes of this Agreement, “Change Beneficial Owner” and “Beneficial Ownership” has the meaning assigned to such term in Control” shall mean Rule 13d-3 and Rule 13d-5 under the occurrence Securities Exchange Act of 1934, as amended, except that in calculating the beneficial ownership of any particular person, such person shall be deemed to have beneficial ownership of all securities that such person has the following right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the Effective Date:passage of time
Appears in 1 contract
Change in Control Termination. (aNotwithstanding Section 2.0(c) Notwithstanding any other provision contained hereinabove, if prior to but in connection with a Change in Control or during the Executive18 month period following a Change in Control: (i) Employee’s employment hereunder with the Employer or its successor is terminated by the Executive for Good Reason Employer or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or successor without Cause (other than on account by reason of the ExecutiveEmployer’s or its successors election and timely notice to terminate Employee’s employment at the end of the Initial Term or any Extension Term in accordance with Section 2.0(a) hereof or by reason of death or Disabilitydisability); or (ii) Employee terminates his employment with the Employer or its successor for Good Reason, in each case within twenty-four (24) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts andEmployee shall, subject to satisfaction of the Executive’s compliance with Release Condition described in Section 62.0(e) below, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the followingto:
(iA) all previously earned and accrued but unpaid Base Salary and Commissions up to the date of such termination;
(B) severance pay in an amount equal to thirty-six (36) months of Base Salary plus the average commission paid for the prior thirty-six (36) months paid in equal installments on the dates on which Employee’s Base Salary would otherwise have been paid in accordance with the Employer’s normal payroll dates in effect as of the date of Employee’s termination of employment as if Employee’s employment had continued for such period, provided that the delay of the payment of any such amounts pending satisfaction of the Release Condition described in Section 2.0(e) below shall be accumulated and paid on the first of the Employer’s first such scheduled payroll date following satisfaction of the Release Condition;
(C) a lump sum payment equal to two (2) one and one-half times the sum mean of payments under any short-term incentive or annual bonus plan maintained by the Employer during each of the Executive’s Base Salary and Target Bonus for three calendar years prior to the year in which the Termination Date such termination occurs (or fewer calendar years if greaterthe Employee has not been a participant in the Employer’s annual or short-term incentive bonus plan for the entirety of each such three prior calendar years), payable as soon as practicable following the Employee’s termination of employment, provided that in no event shall such lump-sum payment occur later than March 15 of the year immediately preceding following the year in which the Change in Control such termination occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(iiD) a lump sum payment equal to the Executivefor such period of time that Employee or any of Employee’s Target Bonus dependents is eligible for the fiscal year in which the Termination Date and elects COBRA continuation coverage (as determined in accordance with Section 5.6) occurs (or if greater, 4980B of the year in which the Change in Control occursCode), which Employee’s cost of coverage shall be the employee contribution rate that would have applied if Employee had remained in active employment with the Employer during such period, provided that any amounts payable to Employee in connection with this Section 2.0(d)(iv) shall be paid within thirty (30) days following on an after tax basis on the Termination Datefirst regularly scheduled payroll date of each month for which such amount is payable; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.and
(bE) Notwithstanding the terms of any equity incentive plan or award agreementsannual bonus that is paid to employees who have worked for Employer for more than fifteen-years, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted provided Employer is profitable. All payments shall be subject to the Executive during the Employment Term shall become fully vested deductions for customary withholdings, including, without limitation, federal and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested state withholding taxes and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedpayroll taxes.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control Termination. (ai) Notwithstanding any other provision contained hereinIf, if within the 13-month period immediately following the occurrence of a Change in Control, the Executive’s employment hereunder by the Company is terminated by the Company other than for Cause (other than a termination for Disability or death) or by the Executive for Good Reason or by (subject, if applicable, to the proviso set forth in the first sentence of Section 4(c)(ii)), then the Company on account shall pay to the Executive (i) a cash payment equal to three times the sum of its failure (A) the Executive’s Annual Base Salary immediately prior to renew the Agreement in accordance with Sections 1 Date of Termination and 5, or without Cause (other than on account B) the Applicable Bonus Amount; and (ii) any unpaid amounts of the Executive’s death Annual Base Salary for periods prior to the Date of Termination and earned annual bonuses for completed fiscal years prior to the Date of Termination. The cash payments described in clause (i) and (ii) of the preceding sentence shall be made in a lump sum within 30 days following the Date of Termination. Notwithstanding the foregoing, if the amounts of such payments cannot be finally determined on or Disabilitybefore a date when a payment is due, the Company shall pay to the Executive on such day an estimate, as reasonably determined 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, if any, as soon as the amount thereof can be determined. The Company shall also provide to the Executive (and, as applicable, her eligible dependents), in each case within twenty-four the event of such a termination continued participation at the Company’s expense in the Company’s medical, dental, prescription and vision care insurance plans (24or substantially equivalent coverage under an alternative arrangement) for 12 months following the Date of Termination (or, if earlier, until the date the Executive obtains alternative coverage from a Change in Controlsubsequent employer) following which, if no such alternative coverage has been obtained, the Executive shall will be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited elect COBRA continuation coverage in accordance with the terms provisions of Section 4980B of the applicable award agreementsCode, if which COBRA coverage period shall begin at the applicable performance goals are satisfiedclose of the period of such continued participation.
(cii) For purposes of this Agreement, a “Change in Control” shall mean be deemed to have occurred on the occurrence of any of the following first date after the Effective Date:Date on which (1) any Person (as defined below) shall acquire, whether by purchase, exchange, tender offer, merger, consolidation or otherwise, beneficial ownership of securities of the Company constituting fifty percent (50%) or more of the combined voting power of the securities of the Company, (2) any Person shall acquire all or substantially all of the assets of the Company pursuant to a sale, dissolution or liquidations or (3) any Person shall acquire the ability to appoint or elect a majority of the members of the Board. For purposes of the preceding sentence, “Person” shall have the meaning given in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended from time to time, as such term is modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) Holdings, Xxxxxx X. Xxx Partners or Xxxxxx X. Xxx Equity Fund IV, L.P., Evercore Capital Partners L.P. and each of their respective affiliates (the “Designated Investors”), (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities and (iv) a corporation owned, directly or indirectly, by the Designated Investors, such that the aggregate ownership of securities or assets of the Company or the ability to appoint or elect directors of the Company that is attributable to such Designated Investors would not decrease to a level that would result in a Change in Control, if such ownership or ability was deemed to be held directly in the Company. The completion of an initial public offering in which no Person acquires beneficial ownership of fifty percent (50%) or more of the combined voting power of the securities of such Person shall not constitute a Change in Control, nor shall the acquisition of beneficial ownership of securities of the Company by a Person which has a class of securities registered under Section 12 of the Securities Exchange Act of 1934, as amended, if such acquisition does not result in the Designated Investors owning thirty percent (30%) or less of the combined voting power of the securities of the Company. Notwithstanding the foregoing, other than for purposes of the existence of Deemed Good Reason (as defined in Section 4(c)(i)), a Change in Control shall be deemed to have occurred on the date when the Designated Investors together with the senior management of the Company (as determined by the Designated Investors) cease to beneficially own at least thirty percent (30%) or more of the combined voting power of the securities of the Company (a “Limited Change in Control”).
(iii) For purposes of this Agreement, the Executive’s employment shall be deemed to have been terminated within the thirteen month period following a Change in Control and during the Term by the Company without Cause (and shall be governed by this Section 5(d)), if the Executive’s employment is terminated by the Company without Cause either (i) during the 120 day period prior to the execution of an agreement, the consummation of which would result
in a Change in Control or (ii) following the execution of an agreement, the consummation of which would result in a Change in Control and such termination is effective at the time, or during the pendency, of such Change in Control (in either case whether or not such Change in Control actually occurs).
Appears in 1 contract
Samples: Employment Agreement (Vertis Inc)
Change in Control Termination. (ai) Notwithstanding any other provision contained hereinIf, if within the 13-month period immediately following the occurrence of a Change in Control, the Executive’s employment hereunder by the Company is terminated by the Company other than for Cause (other than a termination for Disability or death) or by the Executive for Good Reason or by (subject, if applicable, to the proviso set forth in the first sentence of Section 4(c)(ii)), then the Company on account shall pay to the Executive (i) a cash payment equal to three times the sum of its failure (A) the Executive’s Annual Base Salary immediately prior to renew the Agreement in accordance with Sections 1 Date of Termination and 5, or without Cause (other than on account B) the Applicable Bonus Amount; and (ii) any unpaid amounts of the Executive’s death Annual Base Salary for periods prior to the Date of Termination and earned annual bonuses for completed fiscal years prior to the Date of Termination. The cash payments described in clause (i) and (ii) of the preceding sentence shall be made in a lump sum within 30 days following the Date of Termination. Notwithstanding the foregoing, if the amounts of such payments cannot be finally determined on or Disabilitybefore a date when a payment is due, the Company shall pay to the Executive on such day an estimate, as reasonably determined 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, if any, as soon as the amount thereof can be determined. The Company shall also provide to the Executive (and, as applicable, his eligible dependents), in each case within twenty-four the event of such a termination continued participation at the Company’s expense in the Company’s medical, dental, prescription and vision care insurance plans (24or substantially equivalent coverage under an alternative arrangement) for 18 months following the Date of Termination (or, if earlier, until the date the Executive obtains alternative coverage from a Change in Controlsubsequent employer) following which, if no such alternative coverage has been obtained, the Executive shall will be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited elect COBRA continuation coverage in accordance with the terms provisions of Section 4980B of the applicable award agreementsCode, if which COBRA coverage period shall begin at the applicable performance goals are satisfiedclose of the period of such continued participation.
(cii) For purposes of this Agreement, a “Change in Control” shall mean be deemed to have occurred on the occurrence of any of the following first date after the Effective Date:Date on which (1) any Person (as defined below) shall acquire, whether by purchase, exchange, tender offer, merger, consolidation or otherwise, beneficial ownership of securities of the Company constituting fifty percent (50%) or more of the combined voting power of the securities of the Company, (2) any Person shall acquire all or substantially all of the assets of the Company pursuant to a sale, dissolution or liquidations or (3) any Person shall acquire the ability to appoint or elect a majority of the members of the Board. For purposes of the preceding sentence, “Person” shall have the meaning given in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended from time to time, as such term is modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) Holdings, Xxxxxx X. Xxx Partners or Xxxxxx X. Xxx Equity Fund IV, L.P., Evercore Capital Partners L.P. and each of their respective affiliates (the “Designated Investors”), (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities and (iv) a corporation owned, directly or indirectly, by the Designated Investors, such that the aggregate ownership of securities or assets of the Company or the ability to appoint or elect directors of the Company that is attributable to such Designated Investors would not decrease to a level that would result in a Change in Control, if such ownership or ability was deemed to be held directly in the Company. The completion of an initial public offering in which no Person acquires beneficial ownership of fifty percent (50%) or more of the combined voting power of the securities of such Person shall not constitute a Change in Control, nor shall the acquisition of beneficial ownership of securities of the Company by a Person which has a class of securities registered under Section 12 of the Securities Exchange Act of 1934, as amended, if such acquisition does not result in the Designated Investors owning thirty percent (30%) or less of the combined voting power of the securities of the Company. Notwithstanding the foregoing, other than for purposes of the existence of Deemed Good Reason (as defined in Section 4(c)(i)), a Change in Control shall be deemed to have occurred on the date when the Designated Investors together with the senior management of the Company (as determined by the Designated Investors) cease to beneficially own at least thirty percent (30%) or more of the combined voting power of the securities of the Company (a “Limited Change in Control”).
(iii) For purposes of this Agreement, the Executive’s employment shall be deemed to have been terminated within the thirteen month period following a Change in Control and during the Term by the Company without Cause (and shall be governed by this Section 5(d)), if the Executive’s employment is terminated by the Company without Cause either (i) during the 120 day period prior to the execution of an agreement, the consummation of which would result in a Change in Control or (ii) following the execution of an agreement, the consummation of which would result in a Change in Control and such termination is effective at the time, or during the pendency, of such Change in Control (in either case whether or not such Change in Control actually occurs).
Appears in 1 contract
Samples: Employment Agreement (Vertis Inc)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s 's employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s 's death or Disability), in each case within twenty-four (24) twelve months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s 's continuing compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, Agreement and his her execution of a Release in the form attached hereto as Exhibit 1 which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the followingfollowing beginning on or before the forty fifth (45th) day following the Termination Date, or such later time as required by Section 21, hereof:
(i) a A lump sum payment equal to two one (21) times the sum of the Executive’s 's Annual Base Salary and Target Annual Bonus for the year previous to the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) equal installment payments over a lump sum payment two-year period payable in accordance with the Bank's normal payroll practices, but no less frequently than monthly, which are in the aggregate equal to two (2) times the sum of the Executive’s Target 's Annual Base Salary and Annual Bonus for the fiscal year previous to the year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs);
(iii) a lump sum payment equal to the Pro-Rata Bonus;
(b) If the Executive timely and properly elects continuation coverage under COBRA, which the Bank shall reimburse the Executive for the difference between the monthly COBRA premium paid by the Executive for herself and her dependents and the monthly premium amount paid by similarly situated active executives. Such reimbursement shall be paid within thirty to the Executive on the fifteenth (3015th) days day of the month immediately following the month in which the Executive timely remits the premium payment and submits proof thereof in any form reasonably requested by the Bank. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) the twenty-four month anniversary of the Termination Date; provided that, if (ii) the Release Execution Period begins in one taxable year date the Executive is no longer eligible to receive COBRA continuation coverage; and ends in (iii) the date on which the Executive becomes eligible to receive substantially similar coverage from another taxable year, payment shall not be made until the beginning of the second taxable yearemployer.
(bc) Notwithstanding the terms The treatment of any outstanding equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term awards shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited determined in accordance with the terms of the Heritage Oaks Bancorp 2005 Equity Based Compensation Plan and the applicable award agreements, if the applicable performance goals are satisfied.
(cd) For purposes of this Agreement, “"Change in Control” " shall mean the occurrence of any of the following after the Effective Datefollowing:
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four (24) 90 days prior to or within 12 months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts andObligations and any earned but unpaid Annual Bonus for the year immediately preceding the year in which the Executive’s employment terminates, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 8, Section 9 and Section 9 of this Agreement, 10 and his execution of a Release which becomes effective within thirty (30) days following the Termination Dateand such Release becoming effective, the Executive shall will be entitled to receive the followingreceive:
(ia) a lump sum payment an amount equal to two (2) 1.5 times the sum of (i) the Executive’s Base Salary in effect on the Termination Date and (ii) the higher of the Executive’s Target Bonus in effect for the year in which the Termination Date occurs or the Executive’s Annual Bonus received for the preceding calendar year, payable in a lump sum on the first payroll period following the date the Release becomes effective,
(or if greaterb) continued participation in the Company’s group insurance plans (except for short-term and long-term disability which shall cease on the Termination Date) and Employee Benefits described in Section 4.4, in each case for 18 months, subject to the year immediately preceding terms and conditions of the applicable plan and approval of the insurance carrier,
(c) notwithstanding anything to the contrary in any applicable option agreement, all stock options that are subject to a time-based vesting schedule that are held by the Executive shall vest and become exercisable effective as of the Termination Date and shall remain exercisable until the earlier of (i) the expiration of the term of such stock options and (ii) 15 months following the Termination Date, and
(d) an Annual Bonus paid at the Target Bonus level for the calendar year in which the Change in Control occurs)Executive’s employment is terminated, which shall be paid within thirty (30) days following pro-rated up to the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four three (243) months prior to or twelve (12) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 Sections 6 through 11 of this Agreement, Agreement and his execution of a Release which becomes effective within thirty (30) days following by the Termination Dateend of the Release Execution Period, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times one time the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs)Salary, which shall be paid within thirty (30) days on the 30th day following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) If the Executive timely and properly elects health continuation coverage under COBRA, the Corporation shall reimburse the Executive for the monthly COBRA premium paid by the Executive for himself and his dependents. Such reimbursement shall be paid to the Executive on the 10th day of the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) the twelve-month anniversary of the Termination Date; (ii) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which the Executive becomes eligible to receive substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Corporation’s making payments under this Section 5.5(b) would violate the nondiscrimination rules applicable to non-grandfathered plans under the ACA, or result in the imposition of penalties under the ACA, the parties agree to reform this Section 5.5(b) in a manner as is necessary to comply with the ACA.
(c) Consistent with the terms of any equity incentive plan or award agreementsof the Company, as approved by the stockholders, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights time-based equity-based compensation awards granted to the Executive during the Term of Employment Term shall become fully vested and exercisable for the remainder of their full term;; and
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based equity compensation awards other than stock options and stock appreciation rights that are intended granted to constitute performance-based compensation under Section 162(m)(4)(C) the Executive during the Term of the Code Employment shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “Change . The determination whether such performance goals are satisfied shall be in Control” shall mean the occurrence of any sole discretion of the following after Compensation Committee or the Effective Date:Board, as the case may be.
Appears in 1 contract
Samples: Employment Agreement (Sonoma Pharmaceuticals, Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s 's employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s 's death or Disability), in each case either concurrently with or within twenty-four (24) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, subject to the Executive’s 's compliance with Section 6, Section 7, 7 and Section 8 and Section 9 of this Agreement, Agreement and his execution of a Release which becomes effective within thirty (30) days following as provided therein, for which the Termination DateCompany assigns significant value in agreeing to this Section 5.4, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus Incentive for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) business days following the Termination Date: provided that, if expiration of the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,Period;
(ii) a lump sum payment equal to the Executive’s product of (i) the Target Bonus for the fiscal full calendar year in which the Date of Termination occurs and (ii) a fraction, the numerator of which is the number of days the Executive was employed by the Company during the year of termination and the denominator of which is the number of days in such year. This amount shall be paid no later than March 15th of the year following the year in which the Termination Date occurs;
(as determined in accordance with Section 5.6iii) occurs (or if greaterIf the Executive timely and properly elects continuation coverage under COBRA, the year Company shall reimburse the Executive for the difference between the monthly COBRA premium paid by the Executive for himself and his dependents and the monthly premium amount paid by similarly situated active executives. Such reimbursement shall be paid to the Executive on the fifteenth (15th) day of the month immediately following the month in which the Change in Control occurs), which Executive timely remits the premium payment. The Executive shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made eligible to receive such reimbursement until the beginning earliest of: (A) the two year anniversary of the second taxable year.termination date; (B) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (C) the date on which the Executive receives or becomes eligible to receive substantially similar coverage from another employers; and
(biv) Notwithstanding the The terms of any equity incentive plan or award agreementsagreements will determine to what extent, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted if any, such awards are accelerated for vesting and/or exercise periods, provided however with respect to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are initial equity award set forth in Section 4.3, the applicable award agreement and Restricted Shares that are required under Section 409A would have vested on the vesting date immediately following such termination shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedautomatically become vested upon such termination.
(cb) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Datefollowing:
Appears in 1 contract
Samples: Employment Agreement (Bankwell Financial Group, Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, in substitution for the Executive’s rights under Section 5.2 (which shall cease to apply) if the Executive’s 's employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s 's death or Disability), in each case within twenty-four twelve (2412) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s 's Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that. If the Executive timely and properly elects health plan continuation coverage under COBRA, if the Release Execution Period begins in one taxable year Company shall reimburse the Executive for the monthly COBRA premium paid by the Executive for the Executive and ends in another taxable year, payment the Executive's dependents OR the difference between the monthly COBRA premium paid by the Executive for Executive and the Executive's dependents and the monthly premium amount paid by similarly situated active executives. Such reimbursement shall not be made until paid to the beginning Executive on the first of the second taxable year; and,
(ii) a lump sum payment equal to month immediately following the Executive’s Target Bonus for the fiscal year month in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, Executive timely remits the year in which the Change in Control occurs), which premium payment. The Executive shall be paid within thirty eligible to receive such reimbursement until the earliest of: (30i) days following the eighteen-month anniversary of the Termination Date; provided that, if (ii) the Release Execution Period begins in one taxable year date the Executive is no longer eligible to receive COBRA continuation coverage; and ends in (iii) the date on which the Executive becomes eligible to receive substantially similar coverage from another taxable year, payment shall not be made until the beginning of the second taxable yearemployer or other source.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) applicable all outstanding unvested stock options or options/stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) and all outstanding equity-based compensation awards other than stock options or options/stock appreciation rights that are not intended to qualify as performance-vest based compensation under Section 162(m)(4)(C) on the attainment of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code performance goals shall remain outstanding and shall vest or be forfeited forfeited, depending on the level of achievement of the applicable performance goals, in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.agreements ;
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Samples: Executive Employment Agreement (Blackboxstocks Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if If the Executive’s employment hereunder Employment Period is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death due to your Disability) or Disability)by you for Good Reason, in each case case, within twenty-four (24) three months prior, upon or within 12 months following the consummation of a Change in Control (as defined below), then, subject to your execution and non-revocation of a Release in the manner provided in Section 5(a) above (except for the payments described in clause
(i) of this Section 5(b), which shall not be subject to such Release requirement), you will be entitled to receive in lieu of the severance pay and benefits described in Section 5(a) above:
(i) the Accrued Obligations;
(ii) an amount equal to one-and-a-half times (1.5x) your annual Base Salary, less applicable withholdings, which shall be paid (A) if the Termination Date is within three months prior to the consummation of a Change in Control, in the Executive shall be entitled to receive same amounts (taking the Accrued Amounts and1.5x multiple into account) and at the same intervals as if the Employment Period had not ended, subject to or (B) if the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution Termination Date is within 12 months following the consummation of a Release which becomes effective Change in Control, in a single lump sum cash payment within thirty two and a half (302-1/2) days months following the Termination Date, the Executive shall be entitled to receive the following:;
(iiii) a lump sum payment an amount equal to two one-and-a-half times (21.5x) times the sum of the Executive’s Base Salary and Target Bonus your target Annual Incentive Award either for the year in which the Termination Date occurs (or if greaterit has not yet been established, the year target Annual Incentive Award established for the immediately preceding the year in which the Change in Control occursyear), which shall be paid (A) if the Termination Date is within thirty three months prior to the consummation of a Change in Control, in the same manner and at the same time that the Company pays other Company executive incentive awards under the Incentive Plan after the Termination Date, or (30B) days if the Termination Date is within 12 months following the consummation of a Change in Control, in a single lump sum cash payment within two and a half (2-1/2) months following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(iiiv) all outstanding equityany time-based compensation vesting equity awards other than granted to you under the Equity Plan shall immediately become vested upon your Termination Date;
(v) the Company will extend the post-termination exercise period with respect to all stock options or stock appreciation rights held by you until the earlier of (A) the date that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:is two
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Corporation other than For Cause (other than on account of the Executive’s death or Total Disability), in each case within twenty-four three (243) months prior to, or two (2) years following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 6 and Section 9 7 of this Agreement, Agreement and his Executive’s execution of a Release which becomes effective within thirty (30) days following the Termination Datein accordance with Section 5.6, the Executive shall be entitled to receive the following:
: (ia) a lump sum payment equal to two (2) times the sum of the (i) Executive’s Base Salary and Target (ii) the Bonus for paid in respect of Executive’s performance during the year in which the Termination Date occurs (or if greater, prior to the year immediately preceding the year in which of the Change in Control occurs)Control; (b) if Executive timely and properly elects health plan continuation coverage under COBRA, which the Corporation shall be reimburse Executive for the monthly COBRA premium paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year by Executive for Executive and ends in another taxable year, payment shall not be made his dependents until the beginning earliest of: (i) the eighteen (18)-month anniversary of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if (ii) the Release Execution Period begins in one taxable year date Executive is no longer eligible to receive COBRA continuation coverage; and ends in (iii) the date on which Executive becomes eligible to receive substantially similar coverage from another taxable year, payment shall not be made until the beginning of the second taxable year.
employer or other source; (bc) Notwithstanding notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) , all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for a period of six (6) months from the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) Termination Date. For purposes of this Agreement, a “Change in Control” shall mean be deemed to occur upon the occurrence earliest to occur of any of the following events:
(a) 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”)) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of the Corporation representing more than fifty percent (50%) of the total voting power represented by the Corporation’s then-outstanding voting securities;
(b) The consummation of the sale or disposition by the Corporation of all or substantially all of the Corporation’s assets;
(c) The consummation of a merger or consolidation of the Corporation with or into any other entity, other than a merger or consolidation which would result in the voting securities of the Corporation outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) more than fifty percent (50%) of the total voting power represented by the voting securities of the Corporation or such surviving entity or its parent outstanding immediately after such merger or consolidation; or
(d) Individuals who are members of the Effective Date:Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board over a period of 12 months; provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall, for purposes of this Agreement, be considered as a member of the Incumbent Board. Notwithstanding the foregoing, a transaction shall not constitute a Change in Control if its sole purpose is to change the state of the Corporation’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Corporation’s securities immediately before such transaction.
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision Subject to the conditions contained hereinin this Agreement, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four (24) months following upon a Change in ControlControl Termination, the Executive Xxxxxx shall be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 following compensation and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the followingbenefits:
(i) Upon Xxxxxx’x entry into the Release Agreement, ISS shall pay to Parker a lump sum severance payment equal to two (2A) 1.5 times the sum amount of Xxxxxx’x annual salary from ISS (or any predecessor entity or related entity) in effect as of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which date of the Change in Control occurs), Termination plus (B) the total annual incentive pay to which shall be paid within thirty Xxxxxx is entitled from ISS (30or any predecessor entity or related entity) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning as of the second taxable yeardate of the Change in Control Termination; and,for purposes of this paragraph, the terms “predecessor entity” and “related entity” shall have the meanings set forth in Section 280G of the Code.
(ii) Any and all outstanding Options owned by Xxxxxx with a lump sum payment equal to per share exercise price that is less than the Executive’s Target Bonus for Fair Market Value on the fiscal year in which trading day before the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which date of the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully immediately vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code date of the Change in Control Termination, and Xxxxxx shall become fully vested have 90 days after the date of the Change in Control Termination (or such shorter period as is provided in the Plan, or any successor or replacement plan of a similar nature, or an agreement governing the Option) to exercise all of such Options; any other Options owned by Xxxxxx shall automatically terminate; and the restrictions thereon risks of forfeiture on any outstanding Restricted Stock or Restricted Stock Units owned by Xxxxxx shall immediately lapse; . Except as expressly provided thatherein, to the extent that there is any delays in conflict between the settlement provisions of this Section 6(d)(ii) and the provisions of the Plan or payment any agreement governing Options, Restricted Stock and Restricted Stock Units owned by Xxxxxx, the provisions of such awards that are set forth in the applicable award agreement and that are required under this Section 409A 6(d)(ii) shall remain in effect; and,govern.
(iii) all outstanding equity-based compensation awards other than stock options ISS, pursuant to federal and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) state law, will provide, for a period beginning on the date of Xxxxxx’x Change in Control Termination and ending on the earlier of the Code shall remain outstanding and shall vest date that Xxxxxx obtains new employment or be forfeited in accordance with the terms two years after such date of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “Change in Control” shall mean Control Termination (the occurrence of any “COBRA Period”), a continuation of the following after group medical insurance coverage previously provided to Xxxxxx by ISS; and, during the Effective Date:COBRA Period, ISS will pay that portion of the premium for group medical insurance that it paid during Xxxxxx’x employment.
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained hereinIf, if during the Employment Period, the Company terminates Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s due to death or Disability), there is a Non-Renewal as a result of the Company’s delivery of a Notice of Non-Renewal, or Executive terminates employment for Good Reason, in each case case, upon or within twenty-four (24) 24 months following the consummation of a Change in Control, the Executive shall be entitled to receive the Accrued Amounts andthen, subject to Section 11(j) and, in the case of all payments and benefits other than the Accrued Obligations and the Other Benefits, Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 execution within 50 days of this Agreementthe Date of Termination, and his execution nonrevocation, of a Release which becomes effective within thirty (30) days following the Termination DateRelease, the Company shall pay to Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greaterAccrued Obligations, the year immediately preceding Unpaid Annual Bonus, the year Health Care Benefits and the Other Benefits in which accordance with the Change in Control occursterms of Sections 5(a)(i), which shall be paid within thirty (30) days following the Termination Date: provided thatii), if the Release Execution Period begins in one taxable year (v), and ends in another taxable year(vi), payment shall not be made until the beginning of the second taxable year; and,respectively;
(ii) a lump sum payment prorated Annual Bonus in respect of the fiscal year of the Company in which the Date of Termination occurs, with such amount to equal to the Executive’s product of (A) the Target Annual Bonus for the fiscal year in which the Date of Termination occurs, and (B) a fraction, (I) the numerator of which is the number of days that have elapsed in the fiscal year of the Company in which the Date of Termination occurs as of the Date of Termination, and (II) the denominator of which is 365 (the “Prorated Target Bonus”), which Prorated Target Bonus shall be paid in a lump sum in cash on the first payroll date following the Release Effective Date (as determined other than any portion of such Annual Bonus that was deferred, which portion shall instead be paid in accordance with Section 5.6the applicable deferral arrangement and any election thereunder);
(iii) occurs an amount equal to the product of (or if greater, A) two multiplied by (B) the sum of (x) the Annual Base Salary and (y) the Target Annual Bonus as in effect for the fiscal year of the Company in which the Change Date of Termination occurs, payable in Control occurs), which shall be paid within thirty (30) days a lump sum on the first payroll date following the Termination Release Effective Date;
(iv) a cash payment in an amount equal to six months’ health care premiums at the Prevailing COBRA Rate for Executive and each of his eligible dependents, payable in a lump sum on the first payroll date following the Release Effective Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.and
(bv) Notwithstanding the terms for purposes of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights awards granted to Executive following the effective date of the Irish Agreement (including, for the avoidance of doubt, any equity incentive awards granted to Executive during following the Employment Term Effective Date), that remain outstanding on the Date of Termination (other than the Sign-On RSUs), and notwithstanding anything to the contrary in the applicable award agreement, the 2013 LTIP, or any successor or similar plan, such equity incentive awards shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation with any equity incentive awards other than stock options or stock appreciation rights that are not intended subject to qualify as performance-based compensation under Section 162(m)(4)(C) vesting criteria vesting at “target” levels of achievement). For the Code avoidance of doubt, upon Executive’s termination of employment, the Sign-On RSUs shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited treated in accordance with the terms RSU Agreement. For the avoidance of doubt, if applicable, any amount payable pursuant to Section 5(b) shall be determined without regard to any reduction in compensation that resulted in Executive’s termination of employment for Good Reason. If Executive does not execute the Release within 50 days following the Date of Termination, or if Executive revokes the Release, Executive shall be entitled to only the Accrued Obligations and the Other Benefits. Other than as set forth in this Section 5(a) or 5(b), as applicable, in the event of a termination of Executive’s employment by the Company without Cause (other than due to death or Disability), due to a Non-Renewal as a result of the applicable award agreementsCompany’s delivery of a Notice of Non-Renewal, if or by Executive for Good Reason, the applicable performance goals are satisfied.
(c) For purposes of Company and its Affiliates shall have no further obligation to Executive under this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:.
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four twelve (2412) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, (which amounts shall be paid in accordance with Section 5.1) and subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, Agreement and his Executive’s execution of a Release which becomes effective within thirty twenty-eight (3028) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year. Company agrees that Executive will be treated no less favorably than other executives of Company with regard to equity awards granted beginning in calendar year 2016, to the extent consistent with applicable law and the terms of the applicable employee benefit plans.
(b) Notwithstanding If Executive timely and properly elects continuation coverage under COBRA, Company shall reimburse Executive for the terms of any equity incentive plan or award agreements, as applicable:
monthly COBRA premium paid by Executive for Executive and Executive’s dependents. Executive shall be eligible to receive such reimbursement until the earliest of: (i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during eighteen (18) month anniversary of the Employment Term shall become fully vested and exercisable for the remainder of their full term;
Termination Date; (ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended the date Executive is no longer eligible to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested receive COBRA continuation coverage; and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that the date on which Executive either receives or becomes eligible to receive substantially similar coverage from another employer. To the extent the medical benefits provided for in this Section are intended to constitute performance-based compensation not permissible after termination of employment under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if health care plan of Company then in effect (and cannot be provided through Company’s paying the applicable performance goals premium for Executive under COBRA), Company shall pay to Executive such amounts as are satisfiednecessary to provide Executive with an amount equal to the cost of Executive acquiring on a non-group basis, for the required period, those health benefits that would otherwise be lost to Executive and Executive’s eligible dependants as a result of Executive’s termination.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Datefollowing:
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s 's employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s 's death or Disability), in each case either concurrently with or within twenty-four (24) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, subject to the Executive’s 's compliance with Section 6, Section 7, 7 and Section 8 and Section 9 of this Agreement, Agreement and his execution of a Release which becomes effective within thirty (30) days following as provided therein, for which the Termination DateCompany assigns significant value in agreeing to this Section 5.4, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus Incentive for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty ten (3010) business days following the Termination Date: provided that, if expiration of the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,Period;
(ii) a lump sum payment equal to the Executive’s product of (i) the Target Bonus Incentive for the fiscal full calendar year in which the Date of Termination occurs and (ii) a fraction, the numerator of which is the number of days the Executive was employed by the Company during the year of termination and the denominator of which is the number of days in such year. This amount shall be paid no later than March 15th of the year following the year in which the Termination Date occurs.
(as determined in accordance with Section 5.6iii) occurs (or if greaterIf the Executive timely and properly elects continuation coverage under COBRA, the year Company shall reimburse the Executive for the difference between the monthly COBRA premium paid by the Executive for himself and his dependents and the monthly premium amount paid by similarly situated active executives. Such reimbursement shall be paid to the Executive on the fifteenth (15th) day of the month immediately following the month in which the Change in Control occurs), which Executive timely remits the premium payment. The Executive shall be paid within thirty eligible to receive such reimbursement until the earliest of: (30A) days following the two year anniversary of the Termination Date; provided that, if (B) the Release Execution Period begins in one taxable year date the Executive is no longer eligible to receive COBRA continuation coverage; and ends in (C) the date on which the Executive receives or becomes eligible to receive substantially similar coverage from another taxable year, payment shall not be made until the beginning of the second taxable yearemployers.
(biv) Notwithstanding the [intentionally deleted]
(v) The terms of any equity incentive plan or award agreementsagreements will determine to what extent, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided thatif any, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedaccelerated for vesting and/or exercise periods.
(cb) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Datefollowing:
Appears in 1 contract
Samples: Employment Agreement (Bankwell Financial Group, Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Corporation other than For Cause (other than on account of the Executive’s death or Total Disability), in each case within twenty-four three (243) months prior to, or two (2) years following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 6 and Section 9 7 of this Agreement, Agreement and his Executive’s execution of a Release which becomes effective within thirty (30) days following the Termination Datein accordance with Section 5.6, the Executive shall be entitled to receive the following:
: (ia) a lump sum payment equal to two one and a half (21½) times the sum of the (i) Executive’s Base Salary and Target (ii) (A) Bonus for received in the year in which the Termination Date occurs (or if greater, prior to the year immediately preceding the year in which of the Change in Control occurs), which shall be or (B) if no Bonus was paid within thirty (30) days following in the Termination Date: provided that, if year prior to the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
Change in Control, fifty percent (ii50%) a lump sum payment equal to the of Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which of the Change in Control occurs)Control; (b) if Executive timely and properly elects health plan continuation coverage under COBRA, which the Corporation shall be reimburse Executive for the monthly COBRA premium paid within thirty by Executive for Executive and his dependents; Executive shall receive such reimbursement until the earliest of: (30i) days following the eighteen (18)-month anniversary of the Termination Date; provided that, if (ii) the Release Execution Period begins in one taxable year date Executive is no longer eligible to receive COBRA continuation coverage; and ends in (iii) the date on which Executive becomes eligible to receive substantially similar coverage from another taxable year, payment shall not be made until the beginning of the second taxable year.
employer or other source; (bc) Notwithstanding notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) , all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for a period of six (6) months from the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) Termination Date. For purposes of this Agreement, a “Change in Control” shall mean be deemed to occur upon the occurrence earliest to occur of any of the following events:
(a) 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”)) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of the Corporation representing more than fifty percent (50%) of the total voting power represented by the Corporation’s then-outstanding voting securities;
(b) The consummation of the sale or disposition by the Corporation of all or substantially all of the Corporation’s assets;
(c) The consummation of a merger or consolidation of the Corporation with or into any other entity, other than a merger or consolidation which would result in the voting securities of the Corporation outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) more than fifty percent (50%) of the total voting power represented by the voting securities of the Corporation or such surviving entity or its parent outstanding immediately after such merger or consolidation; or
(d) Individuals who are members of the Effective Date:Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board over a period of 12 months; provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall, for purposes of this Agreement, be considered as a member of the Incumbent Board. Notwithstanding the foregoing, a transaction shall not constitute a Change in Control if its sole purpose is to change the state of the Corporation’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Corporation’s securities immediately before such transaction.
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four (24) 90 days prior to or within 12 months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts andObligations and any earned but unpaid Annual Bonus for the year immediately preceding the year in which the Executive’s employment terminates, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 8, Section 9 and Section 9 of this Agreement, 10 and his execution of a Release which becomes and such Release becoming effective and irrevocable within thirty (30) 60 days following the Termination Date, the Executive shall will be entitled to receive the followingreceive:
(ia) a lump sum payment an amount equal to two (2) times the sum of (i) the Executive’s Base Salary in effect on the Termination Date and (ii) the higher of the Executive’s Target Bonus in effect for the year in which the Termination Date occurs (or the Executive’s Annual Bonus received for the preceding calendar year, payable in a lump sum on the first payroll period following the date the Release becomes effective and irrevocable, provided that if greaterthe 60 days period spans two calendar years, the year immediately preceding payment will be made in the year second calendar year,
(b) provided the Executive or the Executive’s covered dependents, as the case may be, timely elects COBRA continuation coverage under the HIP, the portion of the COBRA premiums which is equal to the cost of coverage that the Company was paying as of the Termination Date, to continue Executive’s (and Executive’s covered dependents, as applicable) health and dental insurance coverage in which effect on the Change in Control occurs), which shall be paid within thirty Termination Date until the earlier of (30i) days 12 months following the Termination Date: provided that, if the Release Execution Period begins in one taxable year Date and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) the date the Executive ceases to be eligible for COBRA continuation coverage for any reason. Notwithstanding the foregoing, if at any time the Company determines that its payment of COBRA premiums on the Executive’s behalf would result in a lump sum violation of applicable law (including, but not limited to, the 2010 Patient Protection and Affordable Care Act, as amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of paying COBRA premiums pursuant to this Section 5.7(b), the Company shall pay the Executive on the last day of each remaining month of the COBRA Payment Period, a fully taxable cash payment equal to the Executive’s Target Bonus COBRA premium for such month, subject to applicable tax withholding, for the fiscal year remainder of the 12 month period, and
(c) Notwithstanding anything to the contrary in which any applicable option agreement, all stock options that are subject to a time-based vesting schedule that are held by the Executive shall vest and become exercisable effective as of the Termination Date and shall remain exercisable until the earlier of (i) the expiration of the term of such stock options and (ii) 9 months following the Termination Date (as determined in accordance with provided that for any stock options that are “incentive stock options” within the meaning of Section 5.6) occurs (or if greater422 of the Code, the year in period during which the Change in Control occurs), which shall stock options may be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall exercised will not be made until extended beyond the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are period set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedoption agreement).
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four twelve (2412) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 6 of this Agreement, Agreement and his his/her execution of a Release which becomes effective within thirty (30) days following the Termination DateRelease, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum ____ months of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) 60 days following the Termination Date: ; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target target Annual Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.63.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) 60 days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) If Executive timely and properly elects health continuation coverage under COBRA, the Company shall reimburse Executive for the difference between the monthly COBRA premium paid by Executive for himself/herself and his/her dependents and the monthly premium amount paid by similarly situated active executives. Executive shall be eligible to receive such reimbursement until the earliest of: (i) the eighteen-month anniversary of the Termination Date; (ii) the date Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which Executive receives substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Company’s making payments under this Section 3.4(b) would violate the nondiscrimination rules applicable to non-grandfathered plans under the Affordable Care Act (the “ACA”), or result in the imposition of penalties under the ACA, the parties agree to reform this Section 3.4(b) in a manner as is necessary to comply with the ACA.
(c) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Internal Revenue Code (the “Code”) shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A of the Code (“Section 409A”) shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(cd) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if If the Executive’s employment hereunder Employment Period is terminated by the Executive Company without Cause or by you for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability)Reason, in each case case, upon or within twenty-four (24) 12 months following the consummation of a Change in ControlControl (as defined below), then, subject to your execution and non-revocation of a Release in the Executive manner provided in Section 5(a) above, (except for the payments described in clause (i) of this Section 5(b), which shall not be subject to such Release requirement), you will be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the followingreceive:
(i) a lump sum payment the Accrued Obligations;
(ii) an amount equal to two one-and-a-half times (21.5x) one year of your Base Salary, less applicable withholdings, which shall be payable in the same amounts (taking the 1.5x multiple into account) and at the same intervals as if the Employment Period had not ended;
(iii) an amount equal to one-and-a-half times the sum of the Executive’s Base Salary and (1.5x) your Annual Target Bonus Incentive Award either (i) for the year in which the Termination Date occurs (or if greaterit has not yet been established, the year Annual Target Incentive Award established for the immediately preceding the year in which the Change in Control occursyear), which amount shall be paid within thirty in the same manner and at the same time that the Company pays other Company executive incentive awards under the Incentive Plan after the Termination Date;
(30iv) days immediate vesting of all your time-based equity awards under the Equity Plan; and
(v) if you timely elect continued coverage pursuant to COBRA, payment of your share of the premium cost at the same rate as for active employees of the Company for the 18-month period following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) . For purposes of this Agreement, a “Change in Control” shall mean the occurrence of be deemed to occur when and only when any of the following after events first occurs: (A) any person becomes the Effective Date:beneficial owner, directly or indirectly, of securities of the Company representing 50% or more of the combined voting power of the Company’s then outstanding voting securities; (B) members of the Incumbent Board (as defined in the Company’s 2015 Equity Incentive Plan) cease to constitute a majority of the Board without the approval of the remaining members of the Incumbent Board; or (C) any merger (other than a merger where the Company is the survivor and there is no accompanying Change in Control under clauses (A) or (B), consolidation, liquidation or dissolution of the Company, or the sale of all or substantially all of the assets of the Company. Notwithstanding the foregoing, a Change in Control shall not be deemed to occur pursuant to clause (A) solely because 50% or more of the combined voting power of the Company’s outstanding securities is acquired by one or more employee benefit plans maintained by the Company or by any other employer, the majority interest in which is held, directly or indirectly, by the Company. For purposes of this paragraph, the terms “person” and “beneficial owner” shall have the meaning set forth in Sections 3(a) and 13(d) of the Exchange Act, and in the regulations promulgated thereunder.
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder (i) is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), and (ii) is terminated, in each case case, within twenty-four eighteen (2418) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, Agreement and his the Executive’s execution of a Release which becomes effective within thirty Fourteen (3014) days following the Termination DateDate (as defined in Section 5.5), the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two one (21) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty Thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year;
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.5) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within Sixty (60) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and
(iii) reimbursement of the Executive for the monthly COBRA premium paid, if COBRA coverage is elected, by the Executive for the Executive and the Executive’s dependents until the earliest of: (i) the twelve (12)-month anniversary of the date of the Executive’s termination pursuant to the Change in Control; (ii) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which the Executive becomes eligible to receive substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Company’s making payments under this Section 5.4(a) would violate the nondiscrimination rules applicable to non-grandfathered, insured group health plans under the ACA, or result in the imposition of penalties under the ACA and the related regulations and guidance promulgated thereunder, the parties agree to reform this Section 5.4(a) in a manner as is necessary to comply with the ACA.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable, if the Executive agrees in writing during the Release Execution Period that the non-competition restrictions in Section 8.2 below shall continue to apply after an employment termination described in this Section 5.4:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;; and
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights (including RSUs) that are do not intended to qualify as performance-vest based compensation under Section 162(m)(4)(C) on the attainment of the Code performance goals shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Samples: Executive Employment Agreement (Akari Therapeutics PLC)
Change in Control Termination. In the event of a Change in Control Termination as defined in Section 7.1(a) of the Agreement, the Company shall provide the following severance compensation and benefits to Executive after the effective date of the Release referenced in Section 8 of the Agreement:
(a) Notwithstanding any other provision contained herein, if A severance payment equal to the sum of (i) ( ) months of Executive’s employment hereunder then current base salary and (ii) ( ) times Executive’s target bonus to be earned for the year in which termination occurs or ( ) times the bonus amount paid to Executive in the prior year, whichever is terminated by the Executive for Good Reason or greater, payable (subject to Section 4 below of this Exhibit A) by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5a lump sum, or without Cause (other than on account of the Executive’s death or Disability)less legally required withholdings, in each case within twenty-four (24) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following after the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum effective date of the Executive’s Base Salary and Target Bonus for the year Release referenced in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning Section 8 of the second taxable Agreement, but in no event later than March 15 of the subsequent year; and,
(iib) Health insurance premiums payable by the Company for continued health insurance coverage for Executive and all then currently insured dependents for up to ( ) months after the termination date of Executive’s employment, provided that Executive makes a lump sum payment equal timely election to continue such coverage under COBRA; and provided further that, the Company’s obligation to pay the monthly health insurance premiums for continued group medical insurance shall end when Executive becomes eligible for health insurance with a new employer, and Executive agrees to promptly notify the Company in writing of any such event of eligibility; and
(c) Outplacement services for one year, at the Company’s expense up to a maximum amount of dollars ($ ), with a nationally recognized service selected by the Company; and
(d) Any unvested and outstanding Equity Awards held by Executive shall become one hundred percent (100%) vested as of the termination date of Executive’s employment, except to the Executive’s Target Bonus for extent provided in the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year Fourth Amendment and ends in another taxable year, payment shall not be made until the beginning Restated of the second taxable year.
(b) Notwithstanding ISTA Pharmaceuticals, Inc. 2004 Performance Incentive Plan. In this regard, without limiting the terms foregoing, but by way of any equity incentive plan or award agreementsclarification, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted by the Company to the Executive during the Employment Term shall become fully vested and exercisable for as of the remainder termination date of their full term;
(ii) all outstanding equity-based compensation awards other than Executive’s employment to the extent such stock options are outstanding and unexercisable at the time of such termination and all stock subject to a right of repurchase by the Company (or stock appreciation rights its successor) that are not intended was purchased by Executive shall have such right of repurchase lapse with respect to qualify as performance-based compensation under Section 162(m)(4)(C) all of the Code shall become fully vested and shares at the restrictions thereon shall lapse; provided that, any delays in the settlement or payment time of such awards that are set forth in termination. To the extent necessary to effect the intent of this Agreement with respect to the Equity Awards, the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) provisions of the Code Agreement and this Exhibit A shall remain outstanding and shall vest or be forfeited in accordance with the terms deemed an amendment to each agreement evidencing an Equity Award held by Executive. Executive understands that Executive’s receipt of the applicable award agreements, if severance compensation and benefits specified in this Section 3.2 is conditioned upon Executive’s execution of the applicable performance goals are satisfied.
(c) For purposes Release referenced in Section 8 of this the Agreement, “Change in Control” shall mean and further understands that the occurrence of any of above lists the following after the Effective Date:only severance compensation and benefits to which Executive is entitled.
Appears in 1 contract
Samples: Executive Employee Agreement (Ista Pharmaceuticals Inc)
Change in Control Termination.
(a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections Section 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four three months before or twelve (2412) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 6 of this Agreement, Agreement and his the Executive’s execution of a Release which becomes effective within thirty (30) 21 days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two one and a half (21½) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) 30 days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) If the Executive timely and properly elects health plan continuation coverage under COBRA, the Company shall reimburse the Executive for the monthly COBRA premium paid by the Executive for the Executive and the Executive’s dependents. Such reimbursement shall be paid to the Executive on the first of the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) the eighteen-month anniversary of the Termination Date; (ii) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which the Executive receives substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Company’s payments under this Section 5.3(b) would violate the nondiscrimination rules applicable to non-grandfathered, insured group plans under the ACA, or result in the imposition of penalties under the ACA, the parties agree to reform this Section 5.3(b) in a manner as is necessary to comply with the ACA.
(c) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights awards, that are do not intended to qualify as performance-vest based compensation under Section 162(m)(4)(C) on the attainment of the Code performance goals shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,and
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights awards, that are intended to constitute performance-vest based compensation under Section 162(m)(4)(C) on the attainment of the Code performance goals shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(cd) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date::
Appears in 1 contract
Samples: Employment Agreement (Dragonfly Energy Holdings Corp.)
Change in Control Termination. (ai) Notwithstanding any other provision contained hereinIf, if within the 13-month period immediately following the occurrence of a Change in Control, the Executive’s employment hereunder by the Company is terminated by the Company other than for Cause or by the Executive for Good Reason or by (subject, if applicable, to the proviso set forth in the first sentence of Section 4(c)(ii)), then the Company on account shall pay to the Executive (i) a cash payment equal to three times the sum of its failure (A) the Executive’s Annual Base Salary immediately prior to renew the Agreement in accordance with Sections 1 Date of Termination and 5, or without Cause (other than on account B) the Applicable Bonus Amount; and (ii) any unpaid amounts of the Executive’s death Annual Base Salary for periods prior to the Date of Termination and earned annual bonuses for completed fiscal years prior to the Date of Termination. The cash payments described in clause (i) and (ii) of the preceding sentence shall be made in a lump sum within 30 days following the Date of Termination. Notwithstanding the foregoing, if the amounts of such payments cannot be finally determined on or Disabilitybefore a date when a payment is due, the Company shall pay to the Executive on such day an estimate, as reasonably determined 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, if any, as soon as the amount thereof can be determined. Upon termination of employment under this subsection (d), in each case within twenty-four (24) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and (and/or his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreementseligible dependents, as applicable:
) may elect to continue health (i) all outstanding unvested stock options or stock appreciation rights granted to including prescription drug), dental and vision coverage from the Executive during the Employment Term shall become fully vested Company for himself and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited his eligible dependents in accordance with the terms continuation of coverage requirements of Internal Revenue Code Section 4980B (“COBRA”), provided that the Company will not require any premium payment for such COBRA coverage greater than the premium for such coverage then being charged for active employees. If such COBRA coverage ends before December 31, 2014, then upon expiration of COBRA coverage the Company will at the Company’s expense continue to cover the Executive and his eligible dependents under the Company’s health (including prescription drug), dental and vision coverages (or substantially equivalent coverage under an alternative arrangement) through December 31, 2014, provided that the Company may charge a premium for such coverages no greater than the premium for such coverages then being charged for active employees. However, coverage provided by the Company under the preceding sentence for the Executive or any of his eligible dependents will end before December 31, 2014, for any such person who becomes eligible for coverage under another employer provided health insurance plan or Medicare. To the extent any such continued coverage is provided under a self-insured arrangement, the Company provided premium equivalent value of such continued coverage will be treated as imputed taxable income to the Executive (or income in respect of the applicable award agreementsdecedent, as applicable), subject to any withholding and reporting requirements imposed by law. In addition to the health coverage provided above, the Company shall purchase and maintain through December 31, 2014 a single family policy equivalent in all material aspects to the Company’s health coverage, except with deductibles of $2,500 per person per annum and subject to such coverage exclusions as may be applied by the insurer based on its underwriting and other market policy terms to act as a secondary policy to the Company’s health coverage. However, coverage provided by the Company under the preceding sentence for the Executive or any of his eligible dependents will end before December 31, 2014, for any such person who becomes eligible for coverage under another employer provided health insurance plan or Medicare. In addition, upon termination of employment under this subsection (d), if the applicable performance goals are satisfiedExecutive elects to convert his Company provided group term life insurance and/or group long-term disability insurance coverage(s) to an individual life and/or long-term disability insurance policy(ies), the Company will reimburse the Executive for the first six months of premiums he pays for such converted policy(ies). Any such reimbursement will be treated as taxable income to the Executive, subject to any withholding and reporting requirements imposed by law.
(cii) For purposes of this Agreement, a “Change in Control” shall mean be deemed to have occurred on the occurrence of any of the following first date after the Effective Date:Date on which (1) any Person (as defined below) shall acquire, whether by purchase, exchange, tender offer, merger, consolidation or otherwise, beneficial ownership of securities of the Company constituting fifty percent (50%) or more of the combined voting power of the securities of the Company, (2) any Person shall acquire all or substantially all of the assets of the Company pursuant to a sale, dissolution or liquidation or (3) any Person shall acquire the ability to appoint or elect a majority of the members of the Board. For purposes of the preceding sentence, “Person” shall have the meaning given in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended from time to time, as such term is modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) Holdings, Xxxxxx X. Xxx Partners or Xxxxxx X. Xxx Equity Fund IV, L.P., Evercore Capital Partners L.P. and each of their respective affiliates (the “Designated Investors”), (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities and (iv) a corporation owned, directly or indirectly, by the Designated Investors, such that the aggregate ownership of securities or assets of the Company or the ability to appoint or elect directors of the Company that is attributable to such Designated Investors would not decrease to a level that would result in a Change in Control, if such ownership or ability was deemed to be held directly in the Company. The completion of an initial public offering in which no Person acquires beneficial ownership of fifty percent (50%) or more of the combined voting power of the securities of such Person shall not constitute a Change in Control, nor shall the acquisition of beneficial ownership of securities of the Company by a Person which has a class of securities registered under Section 12 of the Securities Exchange Act of 1934, as amended, if such acquisition does not result in the Designated Investors owning thirty percent (30%) or less of the combined voting power of the securities of the Company. Notwithstanding the foregoing, other than for purposes of the existence of Deemed Good Reason (as defined in Section 4(c)(i)), a Change in Control shall be deemed to have occurred on the date when the Designated Investors together with the senior management of the Company (as determined by the Designated Investors) cease to beneficially own at least thirty percent (30%) or more of the combined voting power of the securities of the Company (a “Limited Change in Control”).
(iii) For purposes of this Agreement, the Executive’s employment shall be deemed to have been terminated within the thirteen month period following a Change in Control and during the Term by the Company without Cause (and shall be governed by this Section 5(d)), if the Executive’s employment is terminated by the Company without Cause either (i) during the l20 day period prior to the execution of an agreement, the consummation of which would result in a Change in Control or (ii) following the execution of an agreement, the consummation of which would result in a Change in Control and such termination is effective at the time, or during the pendency, of such Change in Control (in either case whether or not such Change in Control actually occurs).
Appears in 1 contract
Samples: Employment Agreement (Vertis Inc)
Change in Control Termination.
(a) Notwithstanding any other provision contained herein, in the event of a Change in Control, if the Executive’s 's employment hereunder is terminated by the Executive for For Good Reason Reason, or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Without Cause (other than on account of the Executive’s 's death or Disability), in each case within twenty-four twelve (2412) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts andreceive, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following Release, in accordance with the Termination Dateterms and conditions herein, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two the Accrued Amounts (2as defined in Section 6.1(a) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occursabove), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,;
(ii) a lump sum Severance payment equal to the to: (A) a flat eighteen (18) months or 1.5x of Executive’s Target annual Base Salary, plus (B) their full Incentive Bonus for the that fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.and
(b) Notwithstanding the terms of any equity incentive plan plans or any applicable award agreements, as applicable:Executive shall also be entitled to the payment of:
(i) in the case of a Change in Control, all outstanding stock price conditions from the Equity Awards will be deemed to have been met. If the Equity Awards are equitably assumed by the ongoing corporation based on its value at the Change in Control, vesting will occur in accordance with the original time vesting schedule. If the Executive’s employment terminates after the Change in Control due to Termination by the Company Without Cause, Termination by the Executive For Good Reason, or termination as a result of the Executive’s death or Disability, any unvested stock options or stock appreciation rights granted portion of the Equity Awards will vest upon the Termination Date. If the Executive’s employment terminates after the Change in Control for any other reason, any unvested portion of the Equity Awards will be forfeited. Notwithstanding the forgoing, if the ongoing corporation does not equitably assume the Equity Awards, vesting will accelerate to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights Change in Control date; provided, however, that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement Equity Award agreement, and that are required under Section 409A 409A, shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes The Executive shall also be entitled to:
(i) if the Executive timely and properly elects health continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of this Agreement1985 ("COBRA"), “Change in Control” partial reimbursement for the monthly health care insurance premiums increase paid by the Executive for themselves and their dependents, calculated as the difference between the amount of monthly health care insurance premiums paid by the Executive pre- and post-COBRA coverage; provided, however, that the Executive shall mean comply with applicable election and eligibility requirements. The Executive shall be eligible to receive such reimbursement until the occurrence of any earliest of: (i) the eighteen-month anniversary of the following after Termination Date; (ii) the Effective Date:date the Executive is no longer eligible to receive COBRA
Appears in 1 contract
Samples: Executive Employment Agreement (TILT Holdings Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four (24) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, Agreement and his the Executive’s execution of a Release which becomes effective within thirty (30) 60 days following the Termination Date, the Executive shall be entitled to receive the following:following (in lieu of any payments or benefits under Section 5.2 above):
(ia) a A lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) 60 days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding Any earned but unpaid Annual Bonus with respect to any completed calendar year immediately preceding the terms of any equity incentive plan or award agreementsTermination Date, as applicable:which shall be paid on the otherwise applicable payment date.
(ic) all outstanding unvested stock options or stock appreciation rights granted If the Executive timely and properly elects health plan continuation coverage under COBRA, the Company shall reimburse the Executive for the monthly COBRA premium paid by the Executive for the Executive and the Executive’s dependents. Such reimbursement shall be paid to the Executive during the Employment Term month immediately following the month in which the Executive timely remits the premium payment. The Executive shall become fully vested and exercisable for be eligible to receive such reimbursement until the remainder earliest of: (i) the eighteen-month anniversary of their full term;
the Termination Date; (ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended the date the Executive is no longer eligible to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested receive COBRA continuation coverage; and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all the date on which the Executive becomes eligible to receive substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Company’s payments under this Section 5.4(c) would violate the nondiscrimination rules applicable to non-grandfathered, insured group plans under the ACA, or result in the imposition of penalties under the ACA, the parties agree to reform this Section 5.4(c) in a manner as is necessary to comply with the ACA.
(d) A lump sum payment equal to ____ times the monthly COBRA premium, which shall be paid within 60 days following the Termination Date.
(e) The treatment of any outstanding equity-based compensation equity awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited determined in accordance with the terms of the LTIP and the applicable award agreements, if the applicable performance goals are satisfied.
(cf) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s 's employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s 's death or Disability), in each case either concurrently with or within twenty-four (24) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, subject to the Executive’s 's compliance with Section 6, Section 7, 7 and Section 8 and Section 9 of this Agreement, Agreement and his her execution of a Release which becomes effective within thirty (30) days following as provided therein, for which the Termination DateCompany assigns significant value in agreeing to this Section 5.4, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus Incentive for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) business days following the Termination Date: provided that, if expiration of the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,;
(ii) a lump sum payment equal to the Executive’s product of (i) the Target Bonus Incentive for the fiscal full calendar year in which the Date of Termination occurs and (ii) a fraction, the numerator of which is the number of days the Executive was employed by the Company during the year of termination and the denominator of which is the number of days in such year. This amount shall be paid no later than March 15th of the year following the year in which the Termination Date occurs.
(as determined in accordance with Section 5.6iii) occurs (or if greaterIf the Executive timely and properly elects continuation coverage under COBRA, the year Company shall reimburse the Executive for the difference between the monthly COBRA premium paid by the Executive for herself and her dependents and the monthly premium amount paid by similarly situated active executives. Such reimbursement shall be paid to the Executive on the fifteenth (15th) day of the month immediately following the month in which the Change in Control occurs), which Executive timely remits the premium payment. The Executive shall be paid within thirty eligible to receive such reimbursement until the earliest of: (30A) days following the two year anniversary of the Termination Date; provided that, if (B) the Release Execution Period begins in one taxable year date the Executive is no longer eligible to receive COBRA continuation coverage; and ends in (C) the date on which the Executive receives or becomes eligible to receive substantially similar coverage from another taxable year, payment shall not be made until the beginning of the second taxable year.employer; and
(biv) Notwithstanding the The terms of any outstanding equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to awards held by the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited determined in accordance with the terms of the relevant plan and the applicable award agreements, including to what extent, if the applicable performance goals any, such awards are satisfiedaccelerated for vesting and/or exercise periods.
(cb) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Datefollowing:
Appears in 1 contract
Samples: Employment Agreement (Bankwell Financial Group, Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disabilityas provided in Section 3.5 below), in each case within twenty-four (24) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts andAmounts, subject to as well as the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty following (30) days following the Termination Date, the Executive shall be entitled to receive the following:“CIC Severance Benefits”):
(ia) a lump sum payment an amount equal to two three (23) times the sum of (i) the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal the value of the Annual Incentive that the Executive would have been eligible to the Executive’s Target Bonus earn for the fiscal year in which the Termination Separation Date occurs assuming target performance had been achieved for such year, payable on a bi-weekly basis (as determined assuming the Section 409A Severance Limit described in Section 5.1(d) is not exceeded) in substantially equal installments during the 24 month period following the termination of employment and subject to normal tax withholding. In the event that the total amount of CIC Severance Benefits provided pursuant to this Section 3.4 exceeds the Section 409A Severance Limit described in Section 5.1(d), the payments described in this Section 3.4(a) shall be payable in accordance with the Alternate Payment Timing provisions of Section 5.65.1(d);
(b) occurs payment, if any, for any outstanding but unpaid Annual Incentive for any fiscal year that has concluded on or before the Separation Date, and, in lieu of any Annual Incentive for which the fiscal year has not ended before the Separation Date, a payment equal to the value of the product of (or i) the Annual Incentive, if greaterany, that the Executive would have actually earned for the fiscal year in which the Change Separation Date occurs had the Executive remained employed through the end of such fiscal year and (ii) a fraction, the numerator of which is the number of days the Executive was employed by the Company during the fiscal year in Control occurs), which the Separation Date occurs and the denominator of which is the actual number of days in such fiscal year. Such payment shall be made on the date the Annual Incentive that is so prorated would have otherwise been paid within thirty assuming no termination had occurred;
(30c) days payment, if any, for any outstanding Long-Term Performance Incentive for which the performance measurement period has concluded on or before the Separation Date, and, with respect to each Long-Term Performance Incentive for which the performance measurement period has not concluded on or before the Separation Date, a payment equal to the total award that would have been earned at the end of the applicable performance measurement period based on target performance;
(d) medical, dental, and life insurance benefits pursuant to the plans in effect for the Company on the Separation Date for a period of twenty-four (24) months following the Termination DateSeparation Date at the same levels elected prior to the Executive’s termination (subject to any generally applicable changes to such plans or programs) at the Company’s sole cost; provided that, that if the Release Execution Period begins Company’s making payments under this section would violate the nondiscrimination or other regulations under the ACA or otherwise violate or impose penalties under applicable law or regulation, the parties agree to reform this section in one taxable year a manner as is necessary to comply with the ACA or such other applicable law or regulation, but consistent with the intent of the Company to pay for the cost of medical, dental, and ends life insurance benefits hereunder (subject in another taxable yearall respects to Section 14 hereof). For life insurance benefit continuation, payment shall the Company will pay any required benefit contributions on behalf of the Executive during such 24-month period; provided, however, that if the Executive is determined to be a “specified employee” as defined for purposes of Section 409A, such required premium contributions will not be made paid by the Company until the beginning six months following termination of the second taxable year.
employment (b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) at which time all outstanding unvested stock options or stock appreciation rights granted required premium contributions during such six-month period shall be reimbursed to the Executive in a single lump sum payment). If the Executive is determined to be a “specified employee”, subject to reimbursement as provided in the preceding sentence, she shall be responsible for payment of any required benefit contributions during the Employment Term shall become fully vested and exercisable for the remainder six-month period immediately following her termination of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights employment with respect to any benefits that are not intended considered to qualify provide for a deferral of compensation (as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required determined under Section 409A shall remain in effectof the Code), including, without limitation, continuation of life insurance benefits; and,
(iiie) all the treatment of any outstanding equity-based compensation equity awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited determined in accordance with the terms of the applicable award agreements, if Equity Plan and the applicable performance goals are satisfiedaward agreements for such outstanding equity awards.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Samples: Chief Executive Officer Employment Agreement (Omnova Solutions Inc)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Corporation other than For Cause (other than on account of the Executive’s death or Total Disability), in each case within twenty-four three (243) months prior to, or two (2) years following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 6 and Section 9 7 of this Agreement, Agreement and his Executive’s execution of a Release which becomes effective within thirty (30) days following the Termination Datein accordance with Section 5.6, the Executive shall be entitled to receive the following:
: (ia) a lump sum payment equal to two (2) times the sum of the (i) Executive’s Base Salary and Target (ii) the Bonus for paid in respect of Executive’s performance during the year in which the Termination Date occurs (or if greater, prior to the year immediately preceding the year in which of the Change in Control occurs)Control; (b) if Executive timely and properly elects health plan continuation coverage under COBRA, which the Corporation shall be reimburse Executive for the monthly COBRA premium paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year by Executive for Executive and ends in another taxable year, payment shall not be made his dependents until the beginning earliest of: (i) the eighteen (18)-month anniversary of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if (ii) the Release Execution Period begins in one taxable year date Executive is no longer eligible to receive COBRA continuation coverage; and ends in (iii) the date on which Executive becomes eligible to receive substantially similar coverage from another taxable year, payment shall not be made until the beginning of the second taxable year.
employer or other source; (bc) Notwithstanding notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) , all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for a period of twelve (12) months from the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) Termination Date. For purposes of this Agreement, a “Change in Control” shall mean be deemed to occur upon the occurrence earliest to occur of any of the following events:
(a) 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”)) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of the Corporation representing more than fifty percent (50%) of the total voting power represented by the Corporation’s then-outstanding voting securities;
(b) The consummation of the sale or disposition by the Corporation of all or substantially all of the Corporation’s assets;
(c) The consummation of a merger or consolidation of the Corporation with or into any other entity, other than a merger or consolidation which would result in the voting securities of the Corporation outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) more than fifty percent (50%) of the total voting power represented by the voting securities of the Corporation or such surviving entity or its parent outstanding immediately after such merger or consolidation; or Notes Live, Inc. – J.X. Xxxx Employment Agreement 4
(d) Individuals who are members of the Effective Date:Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board over a period of 12 months; provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall, for purposes of this Agreement, be considered as a member of the Incumbent Board. Notwithstanding the foregoing, a transaction shall not constitute a Change in Control if its sole purpose is to change the state of the Corporation’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Corporation’s securities immediately before such transaction.
Appears in 1 contract
Change in Control Termination. In the event of a Change in Control Termination as provided in Section 7 of the Agreement, the Company shall provide the following severance compensation and benefits to Executive after the effective date of the Release referenced in Section 9 of the Agreement:
(a) Notwithstanding any other provision contained herein, if A severance payment equal to the sum of (i) twenty-four(24 ) months of Executive’s employment hereunder then current base salary and (ii) two (2) times Executive’s target bonus to be earned for the year in which termination occurs or two (2) times the bonus amount paid to Executive in the prior year, whichever is terminated by the Executive for Good Reason or greater, payable (subject to Section 4 below of this Exhibit A) by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5a lump sum, or without Cause (other than on account of the Executive’s death or Disability)less legally required withholdings, in each case within twenty-four (24) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following after the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum effective date of the Executive’s Base Salary and Target Bonus for the year Release referenced in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning Section 9 of the second taxable Agreement, but in no event later than March 15 of the subsequent year; and,
(iib) Health insurance premiums payable by the Company for continued health insurance coverage for Executive and all then currently insured dependents for up to twenty four (24) months after the termination date of Executive’s employment, provided that Executive makes a lump sum payment equal timely election to continue such coverage under COBRA; and provided further that, the Company’s obligation to pay the monthly health insurance premiums for continued group medical insurance shall end when Executive becomes eligible for health insurance with a new employer, and Executive agrees to promptly notify the Company in writing of any such event of eligibility; and
(c) Outplacement services for one year, at the Company’s expense up to a maximum amount of twenty five thousand dollars ($25,000), with a nationally recognized service selected by the Company; and
(d) Any unvested and outstanding Equity Awards or phantom Equity Awards held by Executive shall become one hundred percent (100%) vested as of the termination date of Executive’s employment, except to the Executive’s Target Bonus for extent provided in the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year Fourth Amendment and ends in another taxable year, payment shall not be made until the beginning Restated of the second taxable year.
(b) Notwithstanding ISTA Pharmaceuticals, Inc. 2004 Performance Incentive Plan. In this regard, without limiting the terms foregoing, but by way of any equity incentive plan or award agreementsclarification, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights and SARs granted by the Company to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and termination date of Executive’s employment to the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of extent such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and SARs are outstanding and unexercisable at the time of such termination and all stock appreciation rights subject to a right of repurchase by the Company (or its successor) that are intended was purchased by Executive shall have such right of repurchase lapse with respect to constitute performance-based compensation under Section 162(m)(4)(C) all of the Code shares at the time of such termination and Executive shall remain outstanding and shall vest or be forfeited in accordance with receive an amount equal to the terms sum of the applicable award agreementsSAR Award and Phantom Stock Payment. To the extent necessary to effect the intent of this Agreement with respect to the Equity Awards, if the applicable performance goals are satisfied.
(c) For purposes provisions of the Agreement and this Exhibit A shall be deemed an amendment to each agreement evidencing an Equity Award held by Executive. Executive understands that Executive’s receipt of the severance compensation and benefits specified in this Section 3.2 is conditioned upon Executive’s execution of the Release referenced in Section 9 of the Agreement, “Change in Control” shall mean and further understands that the occurrence of any of above lists the following after the Effective Date:only severance compensation and benefits to which Executive is entitled.
Appears in 1 contract
Samples: Executive Employee Agreement (Ista Pharmaceuticals Inc)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is by the Company shall be terminated by the Company without Cause, by Executive for Good Reason or upon expiration of the Employment Term as then in effect following timely provision by the Company on account of its failure to renew the Agreement notice of non-renewal in accordance with Sections Section 1 and 5, or without Cause (other than on account of the Executive’s death or Disability)hereof, in each case within one month before or twenty-four (24) months immediately following a Change in ControlControl (as defined under the Equity Plan), the then, subject to Section 16(d) hereof, Executive shall be entitled to receive the benefits provided in this Section 8(f).
(1) The Company shall pay to Executive any Accrued Amounts and, subject Compensation;
(2) The Company shall pay to Executive any bonus earned but unpaid in respect of any fiscal year preceding the termination date and such bonus will be paid as and when such bonuses are paid to the other senior executives;
(3) The Company shall pay to Executive an amount equal to Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective then-current Target Bonus within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full termtermination date;
(ii4) all outstanding equityThe Company shall pay Executive as severance pay, in lieu of any further compensation (except as provided in this Section 8(f)) for the periods subsequent to the termination date, an amount in cash, equal to one (1) times Executive’s then-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of current Base Salary, paid in equal installments on the Code shall become fully vested and Company’s regular payroll dates during the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,Severance Period;
(iii5) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) Each unvested equity award held by Executive at the time of the Code shall remain outstanding and termination shall vest or be forfeited in accordance full (with the terms of the applicable award agreements, if the any applicable performance goals are satisfied.treated as achieved at target); and
(c6) For purposes If Executive is participating in the Company’s group health insurance plans on the effective date of this Agreementtermination, “Change in Control” and Executive timely elects and remains eligible for continued coverage under COBRA, or, if applicable, state or local insurance laws, the Company shall mean pay that portion of Executive’s premiums that the occurrence Company was paying prior to the effective date of any of termination for the following after Severance Period or for the Effective Date:continuation period for which Executive is eligible, whichever is shorter.
Appears in 1 contract
Change in Control Termination. (ai) Notwithstanding any other provision contained hereinof this Agreement, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or Employer without Cause (other than on account of the Executive’s death or Permanent Disability), in each either case within six months before and twenty-four (24) months following a Change in Control, the Executive shall be entitled to receive all Accrued Obligations through the Accrued Amounts date of termination and, subject to provided that Executive first enters the Executive’s compliance with Section 6, Section 7, Section 8 Release and Section 9 of this Agreement, and his execution of a such Release which becomes effective within thirty (30) days following the Termination Datedate of termination, the Executive shall be entitled to receive the following:following commencing on the sixtieth (60th) day following the date of termination (with the first payment containing all amounts which should have been, but were not, paid prior to such date):
(i1) three (3) times Executive’s current annual Base Salary, payable in equal payments (on Employer’s regular payroll dates) for a lump sum payment equal to two period of thirty-six (36) months following the occurrence of the events set forth herein;
(2) two and one half (2.5) times the sum of the Executive’s Base Salary and Target target Annual Bonus for the last calendar year before termination, payable in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within equal payments for a period of thirty (30) days months following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning occurrence of the second taxable year; and,events set forth herein;
(ii3) a lump sum payment equal to prorated (based on based on the number of months of service completed for the fiscal year which the Executive’s Target employment terminates) portion of Executive’s target Annual Bonus for the fiscal year in which the Termination Date Executive’s employment terminates; and
(as determined in accordance with Section 5.64) occurs (or if greaterExecutive timely and properly elects continuation coverage under COBRA, Employer shall reimburse Executive for the year in which difference between the Change in Control occurs), which monthly COBRA premium paid by Executive for himself and his dependents and the monthly premium amount paid by similarly situated active executives. Such reimbursement shall be paid within thirty to Executive on the fifteenth (3015th) days day of the month immediately following the Termination Date; provided that, if month in which Executive timely remits the Release Execution Period begins premium payment and submits proof thereof in one taxable year and ends in another taxable year, payment any form reasonably requested by the Bank. The reimbursement shall not be made in a manner that complies with the requirements of Treasury Regulation §1.409A-3(i)(l)(iv). The Executive shall be eligible to receive such reimbursement until the beginning earliest of: (i) the eighteen (18) month anniversary of the second taxable yeardate of termination; (ii) the date Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which Executive becomes eligible to receive substantially similar coverage from another employer.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Datefollowing:
Appears in 1 contract
Change in Control Termination. In lieu of the payments and benefits described in Section 5(a) above, and subject to and conditioned upon the Executive satisfying the Conditions (a) Notwithstanding any other provision contained hereinthan with respect to the Accrued Amounts), if in the event the Executive’s employment hereunder is terminated (x) by the Company without Cause or (y) by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability)Reason, in each such case occurring within twenty-four the twelve (2412) months month period following the occurrence of a Change in ControlControl (such termination, a “CIC Termination”):
(i) the Executive shall be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release (which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which Accrued Amounts shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,Date of Termination (or sooner as required by applicable law));
(ii) the Executive shall receive an amount payable in a lump sum payment on the sixtieth (60th) day following the Date of Termination equal to:
(A) if the Date of Termination occurs on or prior to the twelve (12) month anniversary of the Effective Date, USD$2,000,000; or
(B) if the Date of Termination occurs after the twelve (12) month anniversary of the Effective Date, the sum of (A) two (2) times the Executive’s Target Bonus for then-current Base Salary and (B) a pro-rata amount, based on the number of days elapsed during the fiscal year in which the Date of Termination Date (as determined in accordance with Section 5.6) occurs (or if greateroccurs, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable yearExecutive’s Target Bonus.
(biii) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:Executive shall receive the Continued Healthcare Benefit; and
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(iiiv) all outstanding equity-based compensation awards other than stock options held by the Executive, including for this purpose, the Transition Equity Grant, to the extent not vested, shall immediately and automatically vest (or stock appreciation rights that are not intended to qualify not) as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested Date of Termination as follows, and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment portion of such awards that are set forth in the applicable award agreement do not so vest shall be immediately and that are required under Section 409A shall remain in effect; and,automatically forfeited for no consideration:
(iiiA) all outstanding equity-based compensation if the Date of Termination occurs on or prior to the twelve (12) month anniversary of the Effective Date, each such award shall immediately and automatically be forfeited; or
(B) if the Date of Termination occurs after the twelve (12) month anniversary of the Effective Date, each such award shall immediately and automatically vest as of the Date of Termination as to 100% of such award (assuming “target” performance for awards other than stock options and stock appreciation rights that are intended to constitute with performance-based compensation vesting conditions). Except as provided in this Section 5(e) the Company shall have no additional obligations under Section 162(m)(4)(C) of this Agreement upon the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedExecutive’s termination.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four twelve (2412) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 8, Section 9 and Section 9 10 of this Agreement, Agreement and his execution of a Release which becomes effective within thirty forty-five (3045) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two one and a half (21.5) times the sum of the Executive’s Base Salary and Target Bonus for the year then in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs)effect, which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,;
(ii) a lump sum payment equal If the Executive timely and properly elects continuation coverage under COBRA, the Company shall reimburse the Executive for the monthly COBRA premium paid by the Executive for himself and his dependents. Such reimbursement shall be paid to the Executive’s Target Bonus for Executive on the fiscal year last day of the month immediately following the month in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, Executive timely remits the year in which the Change in Control occurs), which premium payment. The Executive shall be paid within thirty eligible to receive such reimbursement until the earliest of: (30i) days following the eighteen-month anniversary of the Termination Date; provided that, if (ii) the Release Execution Period begins in one taxable year date the Executive is no longer eligible to receive COBRA continuation coverage; and ends in (iii) the date on which the Executive becomes eligible to receive substantially similar coverage from another taxable year, payment shall not be made until the beginning of the second taxable yearemployer.
(biii) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) , all outstanding unvested stock options or stock appreciation rights granted awarded to the Executive during the Employment Term shall become fully vested and exercisable for ninety (90) days following the remainder Change of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedControl.
(cb) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Datefollowing:
Appears in 1 contract
Change in Control Termination. In the event of a Change in Control Termination as defined in Section 7.2 of the Agreement, the Company shall provide the following severance compensation and benefits to Executive after the effective date of the Release referenced in Section 8 of the Agreement:
(a) Notwithstanding any other provision contained herein, if A severance payment equal to the sum of (i) twelve (12) months of Executive’s employment hereunder then current base salary and (ii) one (1) times Executive’s target bonus to be earned for the year in which termination occurs or one (1) times the bonus amount paid to Executive in the prior year, whichever is terminated by the Executive for Good Reason or greater, payable (subject to Section 4 below of this Exhibit A) by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5a lump sum, or without Cause (other than on account of the Executive’s death or Disability)less legally required withholdings, in each case within twenty-four (24) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following after the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum effective date of the Executive’s Base Salary and Target Bonus for the year Release referenced in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning Section 8 of the second taxable yearAgreement; and,
(iib) a lump sum payment equal Health insurance premiums payable by the Company for continued health insurance coverage for Executive and all then currently insured dependents for up to twelve (12) months after the termination date of Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greateremployment, provided that Executive makes a timely election to continue such coverage under COBRA; and provided further that, the year Company’s obligation to pay the monthly health insurance premiums for continued group medical insurance shall end when Executive becomes eligible for health insurance with a new employer, and Executive agrees to promptly notify the Company in which writing of any such event of eligibility; and
(c) Outplacement services for one year, at the Change in Control occursCompany’s expense up to a maximum amount of twenty-five thousand dollars ($25,000), which with a nationally recognized service selected by the Company; and
(d) Any unvested and outstanding Equity Awards held by Executive shall be paid within thirty become one hundred percent (30100%) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning vested as of the second taxable year.
(b) Notwithstanding termination date of Executive’s employment. In this regard, without limiting the terms foregoing, but by way of any equity incentive plan or award agreementsclarification, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted by the Company to the Executive during the Employment Term shall become fully vested and exercisable for as of the remainder termination date of their full term;
(ii) all outstanding equity-based compensation awards other than Executive’s employment to the extent such stock options are outstanding and unexercisable at the time of such termination and all stock subject to a right of repurchase by the Company (or stock appreciation rights its successor) that are not intended was purchased by Executive shall have such right of repurchase lapse with respect to qualify as performance-based compensation under Section 162(m)(4)(C) all of the Code shall become fully vested and shares at the restrictions thereon shall lapse; provided that, any delays in the settlement or payment time of such awards that are set forth in termination. To the extent necessary to effect the intent of this Agreement with respect to the Equity Awards, the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) provisions of the Code Agreement and this Exhibit A shall remain outstanding and shall vest or be forfeited in accordance with the terms deemed an amendment to each agreement evidencing an Equity Award held by Executive. Executive understands that Executive’s receipt of the applicable award agreements, if severance compensation and benefits specified in this Section 3.2 is conditioned upon Executive’s execution of the applicable performance goals are satisfied.
(c) For purposes Release referenced in Section 8 of this the Agreement, “Change in Control” shall mean and further understands that the occurrence of any of above lists the following after the Effective Date:only severance compensation and benefits to which Executive is entitled.
Appears in 1 contract
Samples: Executive Employee Agreement (Ista Pharmaceuticals Inc)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s 's employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s 's death or Disability), in each case either concurrently with or within twenty-four (24) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, subject to the Executive’s 's compliance with Section 6, Section 7, 7 and Section 8 and Section 9 of this Agreement, Agreement and his her execution of a Release which becomes effective within thirty (30) days following as provided therein, for which the Termination DateCompany assigns significant value in agreeing to this Section 5.4, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) business days following the Termination Date: provided that, if expiration of the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,Period;
(ii) a lump sum payment equal to the Executive’s product of (i) the Target Bonus for the fiscal full calendar year in which the Date of Termination occurs and (ii) a fraction, the numerator of which is the number of days the Executive was employed by the Company during the year of termination and the denominator of which is the number of days in such year. This amount shall be paid no later than March 15th of the year following the year in which the Termination Date occurs.
(as determined in accordance with Section 5.6iii) occurs (or if greaterIf the Executive timely and properly elects continuation coverage under COBRA, the year Company shall reimburse the Executive for the difference between the monthly COBRA premium paid by the Executive for herself and her dependents and the monthly premium amount paid by similarly situated active executives. Such reimbursement shall be paid to the Executive on the fifteenth (15th) day of the month immediately following the month in which the Change in Control occurs), which Executive timely remits the premium payment. The Executive shall be paid within thirty eligible to receive such reimbursement until the earliest of: (30A) days following the two year anniversary of the Termination Date; provided that, if (B) the Release Execution Period begins in one taxable year date the Executive is no longer eligible to receive COBRA continuation coverage; and ends in (C) the date on which the Executive receives or becomes eligible to receive substantially similar coverage from another taxable year, payment shall not be made until the beginning of the second taxable yearemployers
(iv) [intentionally deleted].
(bv) Notwithstanding the The terms of any equity incentive plan or award agreementsagreements will determine to what extent, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided thatif any, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedaccelerated for vesting and/or exercise periods.
(cb) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Datefollowing:
Appears in 1 contract
Samples: Employment Agreement (Bankwell Financial Group, Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four (24) 90 days prior to or within 12 months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts andObligations and any earned but unpaid Annual Bonus for the year immediately preceding the year in which the Executive’s employment terminates, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 8, Section 9 and Section 9 of this Agreement, 10 and his her execution of a Release which becomes and such Release becoming effective and irrevocable within thirty (30) 60 days following the Termination Date, the Executive shall will be entitled to receive the followingreceive:
(ia) a lump sum payment an amount equal to two (2) times the sum of (i) the Executive’s Base Salary in effect on the Termination Date and (ii) the higher of the Executive’s Target Bonus in effect for the year in which the Termination Date occurs (or the Executive’s Annual Bonus received for the preceding calendar year, payable in a lump sum on the first payroll period following the date the Release becomes effective and irrevocable, provided that if greaterthe 60 days period spans two calendar years, the year immediately preceding payment will be made in the year second calendar year,
(b) provided the Executive or the Executive’s covered dependents, as the case may be, timely elects COBRA continuation coverage under the HIP, the portion of the COBRA premiums which is equal to the cost of coverage that the Company was paying as of the Termination Date, to continue Executive’s (and Executive’s covered dependents, as applicable) health and dental insurance coverage in which effect on the Change in Control occurs), which shall be paid within thirty Termination Date until the earlier of (30i) days 12 months following the Termination Date: provided that, if the Release Execution Period begins in one taxable year Date and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) the date the Executive ceases to be eligible for COBRA continuation coverage for any reason. Notwithstanding the foregoing, if at any time the Company determines that its payment of COBRA premiums on the Executive’s behalf would result in a lump sum violation of applicable law (including, but not limited to, the 2010 Patient Protection and Affordable Care Act, as amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of paying COBRA premiums pursuant to this Section 5.7(b), the Company shall pay the Executive on the last day of each remaining month of the COBRA Payment Period, a fully taxable cash payment equal to the Executive’s Target Bonus COBRA premium for such month, subject to applicable tax withholding, for the fiscal year remainder of the 12 month period, and
(c) Notwithstanding anything to the contrary in which any applicable option agreement, all stock options that are subject to a time-based vesting schedule that are held by the Executive shall vest and become exercisable effective as of the Termination Date and shall remain exercisable until the earlier of (i) the expiration of the term of such stock options and (ii) 9 months following the Termination Date (as determined in accordance with provided that for any stock options that are “incentive stock options” within the meaning of Section 5.6) occurs (or if greater422 of the Code, the year in period during which the Change in Control occurs), which shall stock options may be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall exercised will not be made until extended beyond the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are period set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedoption agreement).
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control Termination. (ai) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s 's death or Disability), in each case within twenty-four (24) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 6, Section 7, Section Sections 5 through 8 and Section 9 of this Agreement, Agreement and his the Executive’s execution of a Release which becomes an effective within thirty (30) days following the Termination Daterelease, the Executive shall be entitled to receive the following:
(iA) Payment of a Pro Rata Bonus, payable at the time described in Section 3(b);
(B) Payment of an amount equal to the product of two (2) and the sum of (X) the Executive’s Base Salary (excluding any reductions thereto that serve as the basis for a termination for Good Reason) and (Y) Target Bonus for the year of termination, such amount to be paid in a lump sum as soon as practicable after the Termination Date but no later than the earliest time permitted under Section 4(e) and Section 21;
(ii) If the Executive timely and properly elects health continuation coverage under COBRA, the Company, at the Company’s sole discretion, shall either (X) continue the Executive’s health care coverage under the Company’s health plans for a period of three (3) months commencing on the Termination Date or until the Executive (and the Executive’s eligible dependents, if any) receives comparable coverage from a subsequent employer. Such coverage shall be on the same basis as coverage is made available to executives employed by the Company (including, without limitation, co-pays, deductibles and other required payments and limitations), with the Company paying the applicable COBRA premium in excess of the amount paid by active employees for such coverage or otherwise providing such coverage to Executive for the amount paid by active employees for such coverage and Executive’s qualifying event for purposes of COBRA shall be treated as occurring at the Termination Date; or (Y) pay the Executive a cash lump sum payment equal to two (2i) times three (3) multiplied by (ii) the sum excess of the monthly applicable COBRA premium as of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs for health care coverage Executive (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided thatand Executive’s eligible dependents, if any) had from the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal Company immediately prior to the Executive’s Target Bonus Termination Date over the monthly dollar amount the Executive would have paid to the Company for such health care coverage if the Executive remained employed for the fiscal year in which the Termination Date three (as determined in accordance with Section 5.63) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following month period commencing on the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) Immediate vesting of all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended Equity Awards; and
(iv) Reimbursement of up to constitute performance-based compensation under Section 162(m)(4)(C) $10,000 for executive outplacement services provided by a firm of the Code shall remain outstanding and shall vest Executive’s choosing, subject to the Executive’s presentation of appropriate invoices or other reasonable documentation, by a date to be forfeited determined by the Company in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedits sole discretion.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Samples: Employment Agreement (Six Flags Entertainment Corp)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Corporation other than For Cause (other than on account of the Executive’s death or Total Disability), in each case within twenty-four three (243) months prior to, or two (2) years following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 6 and Section 9 7 of this Agreement, Agreement and his Executive’s execution of a Release which becomes effective within thirty (30) days following the Termination Datein accordance with Section 5.6, the Executive shall be entitled to receive the following:
: (i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(iia) a lump sum payment equal to the sum of (i) Executive’s Base Salary on the day preceding the Change in Control and (ii) (A) Bonus received in the year prior to the year of the Change in Control or (B) if no Bonus was paid in the year prior to the year of the Change in Control, fifty percent (50%) of Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which of the Change in Control occurs)Control; (b) if Executive timely and properly elects health plan continuation coverage under COBRA, which the Corporation shall be reimburse Executive for the monthly COBRA premium paid within thirty by Executive for Executive and his dependents; Executive shall receive such reimbursement until the earliest of: (30i) days following the eighteen (18)-month anniversary of the Termination Date; provided that, if (ii) the Release Execution Period begins in one taxable year date Executive is no longer eligible to receive COBRA continuation coverage; and ends in (iii) the date on which Executive becomes eligible to receive substantially similar coverage from another taxable year, payment shall not be made until the beginning of the second taxable year.
employer or other source; (bc) Notwithstanding notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) , all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for a period of six (6) months from the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) Termination Date. For purposes of this Agreement, a “Change in Control” shall mean be deemed to occur upon the occurrence earliest to occur of any of the following events:
(a) 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”)) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of the Corporation representing more than fifty percent (50%) of the total voting power represented by the Corporation’s then-outstanding voting securities;
(b) The consummation of the sale or disposition by the Corporation of all or substantially all of the Corporation’s assets;
(c) The consummation of a merger or consolidation of the Corporation with or into any other entity, other than a merger or consolidation which would result in the voting securities of the Corporation outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) more than fifty percent (50%) of the total voting power represented by the voting securities of the Corporation or such surviving entity or its parent outstanding immediately after such merger or consolidation; or
(d) Individuals who are members of the Effective Date:Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board over a period of 12 months; provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall, for purposes of this Agreement, be considered as a member of the Incumbent Board. Notwithstanding the foregoing, a transaction shall not constitute a Change in Control if its sole purpose is to change the state of the Corporation’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Corporation’s securities immediately before such transaction.
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four three (243) months prior to or within twelve (12) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty sixty (3060) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal installment payments payable in accordance with the Company’s normal payroll practices, but no less frequently than monthly, which are in the aggregate equal to two (2) 1.5 times the sum of the Executive’s Base Salary and Target Bonus annual rate of base salary for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid begin within thirty sixty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (3060) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment payments shall not be made begin until the beginning of the second taxable year; provided further that, the first installment payment shall include all amounts that would otherwise have been paid to the Executive during the period beginning on the Termination Date and ending on the first payment date if no delay had been imposed;
(ii) a payment equal to the product of (i) the Annual Incentive, if any, that the Executive would have earned for the calendar year in which the Termination Date (as determined in accordance with Section 2.6) occurs based on achievement of the applicable performance goals for such year and (ii) a fraction, the numerator of which is the number of days the Executive was employed by the Company during the year of termination and the denominator of which is the number of days in such year (the “Pro-Rata Bonus”). This amount shall be paid on the date that annual bonuses are paid to similarly situated executives, but in no event later than two-and-a-half (2 1/2) months following the end of the calendar year in which the Termination Date occurs.
(biii) If the Executive timely and properly elects health continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company shall reimburse the Executive for the difference between the monthly COBRA premium paid by the Executive for himself and [his/her] dependents and the monthly premium amount paid by similarly situated active executives. Such reimbursement shall be paid to the Executive on the 15th day of the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) the eighteen-month anniversary of the Termination Date; (ii) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which the Executive becomes eligible to receive substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Company’s making payments under this Section 2.4(a) would violate the nondiscrimination rules applicable to non-grandfathered plans under the Affordable Care Act (the “ACA”), or result in the imposition of penalties under the ACA and the related regulations and guidance promulgated thereunder), the parties agree to reform this Section 2.4(a) in a manner as is necessary to comply with the ACA.
(iv) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) of the Termination Date, all outstanding unvested stock options or stock appreciation rights equity awards granted to the Executive during the Employment Term that are then outstanding and unvested shall become fully vested and exercisable immediately thereon, and all stock options granted to the Executive that are then outstanding shall remain exercisable for a period of one year following the Termination Date, or, if shorter for a given stock option, for the remainder of their that stock option’s full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation . For avoidance of doubt, this provision shall serve only to expand, and not to reduce the Executive’s rights that are not intended with respect to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedequity award.
(cb) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control Termination.
(a) Notwithstanding any other provision contained herein, in the event of a Change in Control, if the Executive’s 's employment hereunder is terminated by the Executive for For Good Reason Reason, or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Without Cause (other than on account of the Executive’s 's death or Disability), in each case within twenty-four twelve (2412) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts andreceive, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following Release, in accordance with the Termination Dateterms and conditions herein, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two the Accrued Amounts (2as defined in Section 6.1(a) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occursabove), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,;
(ii) a lump sum Severance payment equal to the to: (A) a flat eighteen (18) months or 1.5x of Executive’s Target annual Base Salary, plus (B) their full Incentive Bonus for the that fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.and
(b) Notwithstanding the terms of any equity incentive plan plans or any applicable award agreements, as applicable:Executive shall also be entitled to the payment of:
(i) in the case of a Change in Control, all outstanding stock price conditions from the Equity Awards will be deemed to have been met. If the Equity Awards are equitably assumed by the ongoing corporation based on its value at the Change in Control, vesting will occur in accordance with the original time vesting schedule. If the Executive’s employment terminates after the Change in Control due to Termination by the Company Without Cause, Termination by the Executive For Good Reason, or termination as a result of the Executive’s death or Disability, any unvested stock options or stock appreciation rights granted portion of the Equity Awards will vest upon the Termination Date. If the Executive’s employment terminates after the Change in Control for any other reason, any unvested portion of the Equity Awards will be forfeited. Notwithstanding the forgoing, if the ongoing corporation does not equitably assume the Equity Awards, vesting will accelerate to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights Change in Control date; provided, however, that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement Equity Award agreement, and that are required under Section 409A 409A, shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes The Executive shall also be entitled to:
(i) if the Executive timely and properly elects health continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of this Agreement1985 ("COBRA"), “Change in Control” partial reimbursement for the monthly health care insurance premiums increase paid by the Executive for themselves and their dependents, calculated as the difference between the amount of monthly health care insurance premiums paid by the Executive pre- and post-COBRA coverage; provided, however, that the Executive shall mean comply with applicable election and eligibility requirements. The Executive shall be eligible to receive such reimbursement until the occurrence of any earliest of: (i) the eighteen-month anniversary of the following after Termination Date; (ii) the Effective Date:date the Executive is no longer eligible to receive COBRA continuation coverage; or (iii) the date on which the Executive receives or becomes eligible to receive substantially similar health care coverage from another employer or other source.
Appears in 1 contract
Samples: Executive Employment Agreement (TILT Holdings Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained hereinIf, if during the Employment Period, the Company terminates Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s due to death or Disability), there is a Non-Renewal as a result of the Company’s delivery of a Notice of Non-Renewal, or Executive terminates employment for Good Reason, in each case case, upon or within twenty-four (24) 24 months following the consummation of a Change in Control, the Executive shall be entitled to receive the Accrued Amounts andthen, subject to Section 11(j) and, in the case of all payments and benefits other than the Accrued Obligations and the Other Benefits, Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 execution within 50 days of this Agreementthe Date of Termination, and his execution non-revocation, of a Release which becomes effective within thirty (30) days following the Termination DateRelease, the Company shall pay to Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greaterAccrued Obligations, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greaterUnpaid Annual Bonus, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested Health Care Benefits and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited Other Benefits in accordance with the terms of Sections 5(a)(i), (ii), (v), and (vi), respectively;
(ii) the Prorated Annual Bonus, which Prorated Annual Bonus shall be paid on the date on which the Company otherwise pays annual bonuses to senior executives of the Company for such fiscal year (other than any portion of such Annual Bonus that was deferred, which portion shall instead be paid in accordance with the applicable deferral arrangement and any election thereunder);
(iii) an amount equal to the product of (A) two multiplied by (B) the sum of (x) the Annual Base Salary and (y) the Target Annual Bonus as in effect for the fiscal year of the Company in which the Date of Termination occurs, payable in a lump sum on the first payroll date following the Release Effective Date;
(iv) a cash payment in an amount equal to six months’ health care premiums at the Prevailing COBRA Rate for Executive and each of his eligible dependents, payable in a lump sum on the first payroll date following the Release Effective Date; and
(v) for purposes of any Annual Equity Awards granted to Executive following the Effective Date that remain outstanding on the Date of Termination, and notwithstanding anything to the contrary in the applicable award agreementsagreement, the 2013 LTIP, or any successor or similar plan, such Annual Equity Awards shall become fully vested (with any such Annual Equity Awards that are subject to performance-based vesting criteria vesting at “target” levels of achievement), and any Annual Equity Awards in the form of stock options remaining exercisable until the earlier of (A) the date that is 24 months following the Date of Termination, and (B) the end of the applicable stock option’s term. For the avoidance of doubt, upon Executive’s termination of employment, the Sign-On Option shall be treated in accordance with the Sign-On Option Agreement. For the avoidance of doubt, if applicable, any amount payable pursuant to Section 5(b) shall be determined without regard to any reduction in compensation that resulted in Executive’s termination of employment for Good Reason. If Executive does not execute the applicable performance goals are satisfied.
Release within 50 days following the Date of Termination, or if Executive revokes the Release, Executive shall be entitled to only the Accrued Obligations and the Other Benefits. Other than as set forth in this Section 5(a) or 5(b), as applicable, in the event of a termination of Executive’s employment by the Company without Cause (c) For purposes other than due to death or Disability), due to a Non-Renewal as a result of the Company’s delivery of a Notice of Non-Renewal, or by Executive for Good Reason, the Company and its Affiliates shall have no further obligation to Executive under this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:.
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained hereinIf, if during the Term, the Company terminates Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s due to death or Disability), or Executive terminates employment for Good Reason, in each case case, upon or within twenty-four (24) 24 months following the consummation of a Change in Control, the Executive shall be entitled to receive the Accrued Amounts andthen, subject to Section 11(j) and, in the case of all payments and benefits other than the Accrued Obligations and the Other Benefits, Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 execution within 50 days of this Agreementthe Date of Termination, and his execution nonrevocation, of a Release which becomes effective within thirty (30) days following the Termination DateRelease, the Company shall pay to Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greaterAccrued Obligations, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greaterUnpaid Annual Bonus, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested Health Care Benefits and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited Other Benefits in accordance with the terms of Sections 5(a)(i), (ii), (v), and (vi), respectively;
(ii) the Prorated Annual Bonus, which Prorated Annual Bonus shall be paid on the date on which the Company otherwise pays annual bonuses to senior executives of the Company for such fiscal year (other than any portion of such Annual Bonus that was deferred, which portion shall instead be paid in accordance with the applicable deferral arrangement and any election thereunder);
(iii) an amount equal to the product of (A) two multiplied by (B) the sum of (x) the Annual Base Salary and (y) the Target Annual Bonus as in effect for the fiscal year of the Company in which the Date of Termination occurs, payable in a lump sum on the first payroll date following the Release Effective Date;
(iv) a cash payment in an amount equal to six months’ health care premiums at the Prevailing COBRA Rate for Executive and each of his eligible dependents, payable in a lump sum on the first payroll date following the Release Effective Date; and
(v) for purposes of any Annual Equity Awards granted to Executive following the Effective Date that remain outstanding on the Date of Termination, and notwithstanding anything to the contrary in the applicable award agreementsagreement, the 2013 LTIP, or any successor or similar plan, such Annual Equity Awards shall become fully vested (with any such Annual Equity Awards that are subject to performance-based vesting criteria vesting at “target” levels of achievement), and any Annual Equity Awards in the form of stock options remaining exercisable until the earlier of (A) the date that is 24 months following the Date of Termination, and (B) the end of the applicable stock option’s term. For the avoidance of doubt, upon Executive’s termination of employment, the Sign-On Option shall be treated in accordance with the Sign-On Option Agreement. For the avoidance of doubt, if applicable, any amount payable pursuant to Section 5(b) shall be determined without regard to any reduction in compensation that resulted in Executive’s termination of employment for Good Reason. If Executive does not execute the applicable performance goals are satisfied.
Release within 50 days following the Date of Termination, or if Executive revokes the Release, Executive shall be entitled to only the Accrued Obligations and the Other Benefits. Other than as set forth in this Section 5(a) or 5(b), as applicable, in the event of a termination of Executive’s employment by the Company without Cause (c) For purposes of other than due to death or Disability), or by Executive for Good Reason, the Company and its Affiliates shall have no further obligation to Executive under this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:.
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if If the Executive’s employment hereunder Employment Period is terminated by the Executive Company without Cause or by you for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability)Reason, in each case case, upon or within twenty-four (24) 12 months following the consummation of a Change in ControlControl (as defined below), then, subject to your execution and non-revocation of a Release in the Executive manner provided in Section 5(a) above, (except for the payments described in clause (i) of this Section 5(b), which shall not be subject to such Release requirement), you will be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the followingreceive:
(i) a lump sum payment the Accrued Obligations;
(ii) an amount equal to two one times (21.0x) one year of your Base Salary, less applicable withholdings, which shall be payable in the same amounts and at the same intervals as if the Employment Period had not ended;
(iii) an amount equal to one times the sum of the Executive’s Base Salary and (1.0x) your Target Bonus Incentive Award either (i) for the year in which the Termination Date occurs (or if greaterit has not yet been established, the year Target Incentive Award established for the immediately preceding the year in which the Change in Control occursyear), which amount shall be paid within thirty in the same manner and at the same time that the Company pays other Company executive incentive awards under the Incentive Plan after the Termination Date;
(30iv) days immediate vesting of all your time-based equity awards under the Equity Plan; and
(v) if you timely elect continued coverage pursuant to COBRA, payment of your share of the premium cost, based on your pre-Termination Date coverage selection, for the 12-month period following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) . For purposes of this Agreement, a “Change in Control” shall mean the occurrence of be deemed to occur when and only when any of the following after events first occurs: (A) any person becomes the Effective Date:beneficial owner, directly or indirectly, of securities of the Company representing 50% or more of the combined voting power of the Company’s then outstanding voting securities; (B) members of the Incumbent Board (as defined in the Company’s 2015 Equity Incentive Plan) cease to constitute a majority of the Board without the approval of the remaining members of the Incumbent Board; or (C) any merger (other than a merger where the Company is the survivor and there is no accompanying Change in Control under clauses (A) or (B), consolidation, liquidation or dissolution of the Company, or the sale of all or substantially all of the assets of the Company. Notwithstanding the foregoing, a Change in Control shall not be deemed to occur pursuant to clause (A) solely because 50% or more of the combined voting power of the Company’s outstanding securities is acquired by one or more employee benefit plans maintained by the Company or by any other employer, the majority interest in which is held, directly or indirectly, by the Company. For purposes of this paragraph, the terms “person” and “beneficial owner” shall have the meaning set forth in Sections 3(a) and 13(d) of the Exchange Act, and in the regulations promulgated thereunder.
Appears in 1 contract
Change in Control Termination. (ai) Notwithstanding any other provision contained hereinIf, if within the 13-month period immediately following the occurrence of a Change in Control, the Executive’s employment hereunder by the Company is terminated by the Company other than for Cause (other than a termination for Disability or death) or by the Executive for Good Reason or by (subject, if applicable, to the proviso set forth in the first sentence of Section 4(c)(ii)), then the Company on account shall pay to the Executive (i) a cash payment equal to three times the sum of its failure (A) the Executive’s Annual Base Salary immediately prior to renew the Agreement in accordance with Sections 1 Date of Termination and 5, or without Cause (other than on account B) the Applicable Bonus Amount; and (ii) any unpaid amounts of the Executive’s death Annual Base Salary for periods prior to the Date of Termination and earned annual bonuses for completed fiscal years prior to the Date of Termination. The cash payments described in clause (i) and (ii) of the preceding sentence shall be made in a lump sum within 30 days following the Date of Termination. Notwithstanding the foregoing, if the amounts of such payments cannot be finally determined on or Disabilitybefore a date when a payment is due, the Company shall pay to the Executive on such day an estimate, as reasonably determined 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, if any, as soon as the amount thereof can be determined. The Company shall also provide to the Executive (and, as applicable, his eligible dependents), in each case within twenty-four the event of such a termination continued participation at the Company’s expense in the Company’s medical, dental, prescription and vision care insurance plans (24or substantially equivalent coverage under an alternative arrangement) for 36 months following the Date of Termination (or, if earlier, until the date the Executive obtains alternative coverage from a Change in Controlsubsequent employer) following which, if no such alternative coverage has been obtained, the Executive shall will be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited elect COBRA continuation coverage in accordance with the terms provisions of Section 4980B of the applicable award agreementsCode, if which COBRA coverage period shall begin at the applicable performance goals are satisfiedclose of the period of such continued participation.
(cii) For purposes of this Agreement, a “Change in Control” shall mean be deemed to have occurred on the occurrence of any of the following first date after the Effective Date:Date on which (1) any Person (as defined below) shall acquire, whether by purchase, exchange, tender offer, merger, consolidation or otherwise, beneficial ownership of securities of the Company constituting fifty percent (50%) or more of the combined voting power of the securities of the Company, (2) any Person shall acquire all or substantially all of the assets of the Company pursuant to a sale, dissolution or liquidations or (3) any Person shall acquire the ability to appoint or elect a majority of the members of the Board. For purposes of the preceding sentence, “Person” shall have the meaning given in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended from time to time, as such term is modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) Holdings, Txxxxx X. Xxx Partners or Txxxxx X. Xxx Equity Fund IV, L.P., Evercore Capital Partners L.P. and each of their respective affiliates (the “Designated Investors”), (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities and (iv) a corporation owned, directly or indirectly, by the Designated Investors, such that the aggregate ownership of securities or assets of the Company or the ability to appoint or elect directors of the Company that is attributable to such Designated Investors would not decrease to a level that would result in a Change in Control, if such ownership or ability was deemed to be held directly in the Company. The completion of an initial public offering in which no Person acquires beneficial ownership of fifty percent (50%) or more of the combined voting power of the securities of such Person shall not constitute a Change in Control, nor shall the acquisition of beneficial ownership of securities of the Company by a Person which has a class of securities registered under Section 12 of the Securities Exchange Act of 1934, as amended, if such acquisition does not result in the Designated Investors owning thirty percent (30%) or less of the combined voting power of the securities of the Company. Notwithstanding the foregoing, a Change in Control shall be deemed to have occurred on the date when the Designated Investors together with the senior management of the Company (as determined by the Designated Investors) cease to beneficially own at least thirty percent (30%) or more of the combined voting power of the securities of the Company.
(iii) For purposes of this Agreement, the Executive’s employment shall be deemed to have been terminated within the thirteen month period following a Change in Control and during the Term by the Company without Cause (and shall be governed by this Section 5(d)), if the Executive’s employment is terminated by the Company without Cause either (i) during the 120 day period prior to the execution of an agreement, the consummation of which would result in a Change in Control or (ii) following the execution of an agreement, the consummation of which would result in a Change in Control and such termination is effective at the time, or during the pendency, of such Change in Control (in either case whether or not such Change in Control actually occurs).
Appears in 1 contract
Samples: Employment Agreement (Vertis Inc)
Change in Control Termination. (a) Notwithstanding any other provision contained hereinIf, if during the Employment Period, the Company shall terminate the Executive’s employment hereunder is terminated by the Executive other than for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (and other than on account of upon the Executive’s death or Disability), or if the Executive shall terminate his employment for Good Reason, in each case either case, within twenty-four (24) months following prior and in connection with, or within 12 months following, a Change in ControlControl (any such termination of employment, a “Change in Control Termination”), the Executive Company shall be entitled to receive the Accrued Amounts and, subject have no further obligations to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the followingexcept as follows:
(i) a lump sum payment equal to two (2) times the sum of Company shall pay or provide the Executive’s Base Salary and Target Bonus for , to the year extent not theretofore paid, as soon as practicable after the Date of Termination (but in which no event later than 60 days after the Termination Date occurs of Termination): (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(iiA) a lump sum payment cash amount equal to the Executive’s Target sum of (1) the Annual Base Salary (which shall be the Annual Base Salary prior to reduction if the termination is for Good Reason because of a reduction in Annual Base Salary) through the Date of Termination, and (2) accrued vacation pay through the Date of Termination; (B) any other amounts or benefits required to be paid or provided pursuant to applicable law; (C) any reimbursement to which the Executive is entitled pursuant to Company policy, but which was not reimbursed prior to the Date of Termination; (D) any other earned but unpaid outstanding compensatory arrangements; and (E) a lump sum cash payment of a pro rata portion of the Annual Bonus that the Executive would have been entitled to receive pursuant to Section 2(b)(ii) hereof for the fiscal year in which the Date of Termination occurs, based upon the percentage of the fiscal year that elapsed through the Date of Termination (as determined by dividing (1) the number of days the Executive was employed during such year through the Date of Termination by (2) the number of days in accordance with Section 5.6such fiscal year) occurs (or if greaterand based on the Executive’s, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year Company’s and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreementsits Affiliates’, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable , actual performance for the remainder applicable performance period through the Date of their full termTermination (based on the good faith determination by the Board (or a duly authorized committee thereof) of the achievement of the applicable performance goals) ((A), (B), (C), (D) and (E), together, the “Accrued Benefits”);
(ii) all outstanding equity-based compensation awards other than stock options the Company shall pay the Executive, on the 60th day following the Date of Termination or stock appreciation rights that are not intended Change in Control, whichever is later, a lump sum cash amount equal to qualify as performance-based compensation under Section 162(m)(4)(Cthe sum of (A) 200% of the Code Annual Base Salary (which shall become fully vested and be the restrictions thereon Annual Base Salary prior to reduction if the termination is for Good Reason because of a reduction in Annual Base Salary), plus (B) 200% of the Target Annual Bonus (which shall lapse; provided that, any delays be the Target Annual Bonus prior to reduction if the termination is for Good Reason because of a reduction in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effectTarget Annual Bonus); and,
(iii) all on the 60th day following the Date of Termination, outstanding equity-based compensation awards other than stock options and stock appreciation rights compensatory awards, if any, that are intended subject to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and forfeiture shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedand become non- forfeitable.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if If the Executive’s employment hereunder Employment Period is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death due to your Disability) or Disability)by you for Good Reason, in each case case, within twenty-four (24) three months prior, upon or within 12 months following the consummation of a Change in Control (as defined below), then, subject to your execution and non-revocation of a Release in the manner provided in Section 5(a) above (except for the payments described in clause
(i) of this Section 5(b), which shall not be subject to such Release requirement), you will be entitled to receive in lieu of the severance pay and benefits described in Section 5(a) above:
(i) the Accrued Obligations;
(ii) an amount equal to two times (2x) your annual Base Salary, less applicable withholdings, which shall be paid (A) if the Termination Date is within three months prior to the consummation of a Change in Control, in the Executive shall be entitled to receive same amounts (taking the Accrued Amounts and2x multiple into account) and at the same intervals as if the Employment Period had not ended, subject to or (B) if the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution Termination Date is within 12 months following the consummation of a Release which becomes effective Change in Control, in a single lump sum cash payment within thirty two and a half (302-1/2) days months following the Termination Date, the Executive shall be entitled to receive the following:;
(iiii) a lump sum payment an amount equal to two times (22x) times the sum of the Executive’s Base Salary and Target Bonus your target Annual Incentive Award either for the year in which the Termination Date occurs (or if greaterit has not yet been established, the year target Annual Incentive Award established for the immediately preceding the year in which the Change in Control occursyear), which shall be paid (A) if the Termination Date is within thirty three months prior to the consummation of a Change in Control, in the same manner and at the same time that the Company pays other Company executive incentive awards under the Incentive Plan after the Termination Date, or (30B) days if the Termination Date is within 12 months following the consummation of a Change in Control, in a single lump sum cash payment within two and a half (2-1/2) months following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(iiiv) all outstanding equitysubject to Section 3(g)(iii), any time-based compensation vesting equity awards other than granted to you under the Equity Plan shall immediately become vested upon your Termination Date;
(v) the Company will extend the post-termination exercise period with respect to all stock options or stock appreciation rights held by you until the earlier of (A) the date that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:is two
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections Section 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four (24) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section Sections 5, 6, Section 7, Section 7 and 8 and Section 9 of this Agreement, Agreement and his the Executive’s execution of a Release which becomes effective within thirty (30) twenty-one days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times If the sum of Executive timely and properly elects health plan continuation coverage under COBRA, the Company shall reimburse the Executive for the monthly COBRA premium paid by the Executive for the Executive and the Executive’s Base Salary and Target Bonus for dependents. Such reimbursement shall be paid to the year Executive on the first of the month immediately following the month in which the Termination Date occurs (or if greater, Executive timely remits the year immediately preceding the year in which the Change in Control occurs), which premium payment. The Executive shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made eligible to receive such reimbursement until the beginning earliest of: (i) the eighteen -month anniversary of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that(ii) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which the Executive receives substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Release Execution Period begins Company’s payments under this Section 4.4(b) would violate the nondiscrimination rules applicable to non-grandfathered, insured group plans under the ACA, or result in one taxable year and ends the imposition of penalties under the ACA, the parties agree to reform this Section 4.4(b) in another taxable year, payment shall not be made until a manner as is necessary to comply with the beginning of the second taxable yearACA.
(b) Notwithstanding the terms The treatment of any outstanding equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term awards shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited determined in accordance with the terms of the applicable equity plan and the applicable award agreements, if the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four three (243) months prior to or within twelve (12) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty sixty (3060) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal installment payments payable in accordance with the Company’s normal payroll practices, but no less frequently than monthly, which are in the aggregate equal to two (2) 2.0 times the sum of the Executive’s Base Salary and Target Bonus annual rate of base salary for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid begin within thirty sixty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (3060) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment payments shall not be made begin until the beginning of the second taxable year.
(b) Notwithstanding ; provided further that, the terms of any equity incentive plan or award agreements, as applicable:
(i) first installment payment shall include all outstanding unvested stock options or stock appreciation rights granted amounts that would otherwise have been paid to the Executive during the Employment Term shall become fully vested period beginning on the Termination Date and exercisable for ending on the remainder of their full termfirst payment date if no delay had been imposed;
(ii) all outstanding equity-a payment equal to the product of (i) the Annual Incentive, if any, that the Executive would have earned for the calendar year in which the Termination Date (as determined in accordance with Section 2.6) occurs based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) on achievement of the Code shall become fully vested applicable performance goals for such year and (ii) a fraction, the numerator of which is the number of days the Executive was employed by the Company during the year of termination and the restrictions thereon denominator of which is the number of days in such year (the “Pro-Rata Bonus”). This amount shall lapse; provided thatbe paid on the date that annual bonuses are paid to similarly situated executives, any delays but in no event later than two-and-a-half (2 1/2) months following the settlement or payment end of such awards that are set forth the calendar year in which the applicable award agreement and that are required under Section 409A shall remain in effect; and,Termination Date occurs;
(iii) all outstanding equity-based compensation awards other than stock options If the Executive timely and stock appreciation rights that are intended properly elects health continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company shall reimburse the Executive for the difference between the monthly COBRA premium paid by the Executive for himself and his dependents and the monthly premium amount paid by similarly situated active executives. Such reimbursement shall be paid to constitute performance-based compensation under Section 162(m)(4)(C) the Executive on the 15th day of the Code month immediately following the month in which the Executive timely remits the premium payment. The Executive shall remain be eligible to receive such reimbursement until the earliest of: (i) the eighteen-month anniversary of the Termination Date; (ii) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which the Executive becomes eligible to receive substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Company’s making payments under this Section 2.4(a)(iii) would violate the nondiscrimination rules applicable to non-grandfathered plans under the Affordable Care Act (the “ACA”), or result in the imposition of penalties under the ACA and the related regulations and guidance promulgated thereunder), the parties agree to reform this Section 2.4(a)(iii) in a manner as is necessary to comply with the ACA.
(iv) The treatment of each outstanding and equity award, if any, shall vest or be forfeited determined in accordance with the terms of the applicable plan and award agreements, if the applicable performance goals are satisfiedagreement.
(cb) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the If Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement terminates in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four (24) months following a Change in ControlControl Termination, this Agreement shall terminate without further obligations to Executive other than:
(i) payment of Accrued Obligations through the Executive shall be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 effective date of this Agreement, and his execution of termination in a Release which becomes effective lump sum in cash within thirty (30) days following of the Termination Date, the Executive shall be entitled to receive the following:effective date of termination;
(iii) a lump sum payment of an amount equal to two (2) three times the sum of the (A) Executive’s Annual Base Salary and Target Bonus for as in effect immediately prior to the year in which the Termination Date occurs date of termination (or if greater, the year immediately preceding the year in which prior to the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided thatEvent, if the Release Execution Period begins in one taxable year greater) and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(iiB) a lump sum payment an amount equal to the Executive’s Target Bonus highest annual average of the Annual Bonuses earned by Executive for performance in any two consecutive fiscal years in the last three completed fiscal years immediately preceding the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) date of termination occurs for which bonuses have been paid or are payable (or if greater, the last two fiscal years immediately preceding the fiscal year in which the date of the Change in Control occursEvent occurs for which bonuses have been paid or are payable, if greater), which shall be paid within thirty payable in equal installments over a period consisting of thirty-six (3036) days months following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not effective date of termination (such payments to be made until in accordance with the beginning Company’s normal payroll practices) to begin on the first payroll date following the sixtieth (60th) day after termination of employment, and with the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment first of such awards payments to include any regularly scheduled payments that are set forth in were missed pending the applicable award agreement and that are required under Section 409A shall remain in effectsixty (60) day waiting period; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended monthly payments (or reimbursement to constitute performance-based compensation under Section 162(m)(4)(CExecutive) of the Code shall remain outstanding cost of continuing coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) or similar state law (to be made no later than the last day of the month following the month for which the payment or reimbursement is made), for Executive and shall vest or be forfeited Executive’s spouse (if so elected) under the Company’s then existing medical, dental and prescription insurance plans for a period equal to the eighteen months; provided that (A) Executive elects such continuing coverage in accordance with the terms requirements of each such plan (provided that during any period when Executive is eligible to receive such benefits under any other employer-provided plan or through any government-sponsored program such as Medicare, the benefits provided under this clause (iii) may be made secondary to those provided under such other plan) or (B) if Executive is not eligible to receive such coverage under COBRA for any month during such eighteen month period, then the Company shall pay to Executive on the first day of such month an amount equal to that which the Company would otherwise have been obligated to pay to provide COBRA coverage for Executive and Executive’s spouse (if so elected) for such month. provided, however, that as conditions precedent to receiving the payments and benefits provided for in this Section 5(b) (other than payment of the Accrued Obligations), Executive shall first execute and deliver to the Company a general release agreement substantially in the form attached hereto as Exhibit A (a “Release”), and all rights of Executive thereunder or under applicable award agreementslaw to rescind or revoke the release shall have expired no later than the forty-five (45) days after the date of termination. If Executive fails to timely execute a Release, if all payments and benefits set forth in this Section 5(b) (other than the applicable performance goals are satisfied.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any payment of the following after the Effective Date:Accrued Obligations) shall be forfeited.
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, Section 1.2 or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-twenty four (24) months following a Change in Control, then so long as Executive does not violate any term(s) of Section 5 or 6 of this Agreement and Executive executes and does not revoke a general release and waiver in the form attached hereto as Schedule A, Executive shall be entitled to receive the Accrued Amounts and, subject following (the “Change in Control Severance Benefits”):
4.5.1 An amount equal to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 sum of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two four (24) times the sum of the Executive’s Base Salary and Target Bonus as of the Termination Date, plus (ii) four (4) times the greater of (A) the amount of any cash bonus payable to Executive for the year in which the Termination Date occurs (provided that if Executive’s bonus for such year has not been determined as of the Termination Date, then the amount of the bonus shall be determined as if Executive earned 100% of the targeted performance bonus for such year, to the extent such target bonus exists) or if greater, (B) the amount of the cash bonus paid to Executive for services rendered during the year immediately preceding prior to the calendar year in which the Change in Control occursoccurred. Notwithstanding the foregoing, for purposes of the preceding sentence, if Executive’s employment is terminated by Executive for Good Reason because of a reduction in Executive’s Base Salary as described in Section 4.1.3(i), which Executive’s Base Salary shall be the Base Salary in effect immediately prior to such reduction. The amount described in this paragraph will be paid in one lump sum on the sixtieth (60th) day following the Termination Date; provided, however, that to the extent the amount described in this paragraph is subject to Section 409A of the Code and payment of such amount in a lump sum would violate Section 409A of the Code, then to the extent necessary to comply with Section 409A of the Code, the amount described in this paragraph will be paid in equal installments over a twelve (12) month period on the Company’s regular pay dates, commencing on the first regular pay date of the Company that occurs on or after the sixtieth (60th) day following the Termination Date.
4.5.2 Reimbursement from the Company for the cost of any applicable COBRA health and dental premiums for Executive and his dependents until the earlier to occur of (A) Executive finding new employment at which health and dental insurance is available to him, or (B) eighteen (18) months following the Termination Date, or (C) the date on which Executive’s and his dependents’ eligibility for COBRA coverage under the Company’s or an affiliate’s applicable benefit plans expires. The COBRA reimbursement payments will be made on the first day of each month, beginning on the first day of the first month on or after the sixtieth (60th) day following the Termination Date. In order to invoke a termination for Good Reason, Executive shall provide written notice to the Company of the existence of one or more of the conditions providing grounds for termination for Good Reason within ninety (90) days following the Executive’s knowledge of the initial existence of such condition or conditions, specifying in reasonable detail the conditions constituting Good Reason, and the Company shall have 30 days following receipt of such written notice (the “Cure Period”) during which it may remedy the condition. In the event that the Company fails to remedy the condition constituting Good Reason during the applicable Cure Period, the Executive’s “separation from service” (within the meaning of Section 409A of the Code) must occur, if at all, within thirty (30) days following such Cure Period in order for such termination as a result of such condition to constitute a termination for Good Reason. Should the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning Company learn that Executive has violated any of the second taxable year; and,
(ii) a lump sum payment equal to terms of Sections 5 or 6 of this Agreement during the Executive’s Target Bonus for the fiscal year period in which Executive was paid additional post-termination Base Salary or received any post-termination benefits, then the Termination Date (as determined in accordance with Section 5.6) occurs (Company may immediately cease such payments and cease or if greater, cause to be ceased the year in which the provision of any Change in Control occurs)Severance Benefits, which shall be paid within thirty and Executive must, on demand, repay to the Company the payments (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning or equivalent value of the second taxable year.
(bbenefits received by Executive) Notwithstanding for each month in which Executive breached any of the terms of Sections 5 or 6. The Company may, in its sole discretion, cease any equity incentive such payments or the provision of any such benefits, and release Executive, in writing, from Executive’s obligations pursuant to Sections 5 and 6. However, any decision by the Company to not make payments to Executive pursuant to this Section does not release Executive from Executive’s duties under Sections 5 or 6 unless the Company agrees, in writing, to so release Executive. By signing the general release and waiver in the form attached hereto as Schedule A, and by accepting payments, benefits or any other consideration thereunder, Executive acknowledges and agrees that he waives any and all other severance payments pursuant to any other plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) program of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedCompany.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Samples: Executive Employment Agreement (Energy & Exploration Partners, Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained hereinIf, if during the Employment Period, Parent or the Company terminates Executive’s employment hereunder is terminated by the other than for Cause or Disability, or Executive terminates employment for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability)Reason, in each case case, upon or within twenty-four (24) 24 months following the consummation of a Change in Control, the Executive shall be entitled to receive the Accrued Amounts andthen, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 execution within 50 days of this Agreementthe Date of Termination, and his execution non-revocation, of a Release which becomes effective within thirty (30) days following the Termination DateRelease, the Company shall pay to Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two (2) times the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greaterAccrued Obligations, the year immediately preceding Unpaid Annual Bonus, the year Health Care Benefits, the Career Transition Assistance and the Other Benefits in which accordance with the Change in Control occursterms of Sections 5(a)(i), which shall be paid within thirty (30ii), (v), (vii) days following the Termination Date: provided thatand (viii), if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,respectively;
(ii) a lump sum payment prorated Annual Bonus in respect of the fiscal year of Parent in which the Date of Termination occurs, with such amount to equal to the Executive’s product of (A) the Target Annual Bonus for the fiscal year in which the Date of Termination occurs, and (B) a fraction, (I) the numerator of which is the number of days that have elapsed in the fiscal year of Parent in which the Date of Termination occurs as of the Date of Termination, and (as determined II) the denominator of which is 365 (the “Prorated Target Bonus”), which Prorated Target Bonus shall be paid in a lump sum in cash within 60 days following the Date of Termination (other than any portion of such Annual Bonus that was deferred, which portion shall instead be paid in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement deferral arrangement and that are required under Section 409A shall remain in effectany election thereunder); and,
(iii) all outstanding equity-based compensation awards other than stock options an amount equal to the product of (A) three multiplied by (B) the sum of (x) the Annual Base Salary and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C(y) the Target Annual Bonus as in effect for the fiscal year of Parent in which the Code shall remain outstanding and shall vest or be forfeited Date of Termination occurs, payable in accordance with a lump sum within 60 days following the terms Date of Termination. For the applicable award agreementsavoidance of doubt, if applicable, any amount payable pursuant to Section 5(b) shall be determined without regard to any reduction in compensation that resulted in Executive’s termination of employment for Good Reason. If Executive does not execute the applicable performance goals are satisfiedRelease within 50 days following the Date of Termination, or if Executive revokes the Release, Executive shall be entitled to only the compensation and benefits contemplated by Sections 5(a)(i) and (viii).
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, upon a Change in Control, the Awards will vest in full, plus the balance, if any, of the Initial Cash Award will be paid. Moreover, if Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case case, within twenty-four twelve (2412) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts andAmounts, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, Agreement and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to two the Accrued Amounts;
(2ii) one (1.0) times the sum of the Executive’s Base Salary and Target Bonus for the year as in which the Termination Date occurs (or if greater, the year effect immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following prior to the Termination Date: provided that, if payable on the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within date thirty (30) days following the Termination Date; provided that, if and
(iii) a payment equal to the Release Execution Period begins Target Bonus that Executive would have earned for the fiscal year in one taxable year and ends in another taxable year, payment which the Termination Date occurs. This amount shall not be made until paid on the beginning of date thirty (30) days following the second taxable yearTermination Date.
(b) Notwithstanding If Executive timely and properly elects health plan continuation coverage under COBRA, the terms Company shall reimburse Executive for the monthly COBRA premium paid by Executive for himself and his dependents. Such reimbursement shall be paid to Executive on the first (1st) of any equity incentive plan or award agreements, as applicable:
the month immediately following the month in which Executive timely remits the premium payment. Executive shall be eligible to receive such reimbursement until the earliest of: (i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during eighteen-month anniversary of the Employment Term shall become fully vested and exercisable for the remainder of their full term;
Termination Date; (ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended the date Executive is no longer eligible to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested receive COBRA continuation coverage; and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards the date on which Executive receives substantially similar coverage from another employer or other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of source. Notwithstanding the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreementsforegoing, if the Company’s payments under this Section 5.4(b) would violate the nondiscrimination rules applicable performance goals are satisfiedto non-grandfathered, insured group plans under the ACA, or result in the imposition of penalties under the ACA, the parties agree to reform this Section 5.4(b) in a manner as is necessary to comply with the ACA.
(c) For purposes of this Agreement, “Change in Control” shall mean have the occurrence of any of meaning set forth under the following after the Effective Date:Incentive Plan.
Appears in 1 contract
Samples: Employment Agreement (Golden Nugget Online Gaming, Inc.)
Change in Control Termination. (a) Notwithstanding any other provision contained hereinIf, if during the Employment Period, the Company shall terminate the Executive’s employment hereunder is terminated by the Executive other than for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (and other than on account of upon the Executive’s death or Disability), or if the Executive shall terminate his employment for Good Reason, in each case either case, within twenty-four (24) months following prior and in connection with, or within 12 months following, a Change in ControlControl (any such termination of employment, a “Change in Control Termination”), the Executive Company shall be entitled to receive the Accrued Amounts and, subject have no further obligations to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty (30) days following the Termination Date, the Executive shall be entitled to receive the followingexcept as follows:
(i) a lump sum payment equal to two (2) times the sum of Company shall pay or provide the Executive’s Base Salary and Target Bonus for , to the year extent not theretofore paid, as soon as practicable after the Date of Termination (but in which no event later than 60 days after the Termination Date occurs of Termination): (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and,
(iiA) a lump sum payment cash amount equal to the Executive’s Target sum of (1) the Annual Base Salary (which shall be the Annual Base Salary prior to reduction if the termination is for Good Reason because of a reduction in Annual Base Salary) through the Date of Termination, and (2) accrued vacation pay through the Date of Termination; (B) any other amounts or benefits required to be paid or provided pursuant to applicable law; (C) any reimbursement to which the Executive is entitled pursuant to Company policy, but which was not reimbursed prior to the Date of Termination; (D) any other earned but unpaid outstanding compensatory arrangements; and (E) a lump sum cash payment of a pro rata portion of the Annual Bonus that the Executive would have been entitled to receive pursuant to Section 2(b)(ii) hereof for the fiscal year in which the Date of Termination occurs, based upon the percentage of the fiscal year that elapsed through the Date of Termination (as determined by dividing (1) the number of days the Executive was employed during such year through the Date of Termination by (2) the number of days in accordance with Section 5.6such fiscal year) occurs (or if greaterand based on the Executive’s, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year Company’s and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) Notwithstanding the terms of any equity incentive plan or award agreementsits Affiliates’, as applicable:
(i) all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable , actual performance for the remainder applicable performance period through the Date of their full termTermination (based on the good faith determination by the Board (or a duly authorized committee thereof) of the achievement of the applicable performance goals) ((A), (B), (C), (D) and (E), together, the “Accrued Benefits”);
(ii) all outstanding equity-based compensation awards other than stock options the Company shall pay the Executive, on the 60th day following the Date of Termination or stock appreciation rights that are not intended Change in Control, whichever is later, a lump sum cash amount equal to qualify as performance-based compensation under Section 162(m)(4)(Cthe sum of (A) 200% of the Code Annual Base Salary (which shall become fully vested and be the restrictions thereon Annual Base Salary prior to reduction if the termination is for Good Reason because of a reduction in Annual Base Salary), plus (B) 200% of the Target Annual Bonus (which shall lapse; provided that, any delays be the Target Annual Bonus prior to reduction if the termination is for Good Reason because of a reduction in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effectTarget Annual Bonus); and,
(iii) all on the 60th day following the Date of Termination, outstanding equity-based compensation awards other than stock options and stock appreciation rights compensatory awards, if any, that are intended subject to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and forfeiture shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedand become non-forfeitable.
(c) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Corporation other than For Cause (other than on account of the Executive’s death or Total Disability), in each case within twenty-four three (243) months prior to, or two (2) years following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s compliance with Section 6, Section 7, Section 8 6 and Section 9 7 of this Agreement, Agreement and his Executive’s execution of a Release which becomes effective within thirty (30) days following the Termination Datein accordance with Section 5.6, the Executive shall be entitled to receive the following:
: (ia) a lump sum payment equal to two (2) times the sum of the (i) Executive’s Base Salary and Target (ii) the Bonus for paid in respect of Executive’s performance during the year in which the Termination Date occurs (or if greater, prior to the year immediately preceding the year in which of the Change in Control occurs)Control; (b) if Executive timely and properly elects health plan continuation coverage under COBRA, which the Corporation shall be reimburse Executive for the monthly COBRA premium paid within thirty (30) days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year by Executive for Executive and ends in another taxable year, payment shall not be made his dependents until the beginning earliest of: (i) the eighteen (18)-month anniversary of the second taxable year; and,
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty (30) days following the Termination Date; provided that, if (ii) the Release Execution Period begins in one taxable year date Executive is no longer eligible to receive COBRA continuation coverage; and ends in (iii) the date on which Executive becomes eligible to receive substantially similar coverage from another taxable year, payment shall not be made until the beginning of the second taxable year.
employer or other source; (bc) Notwithstanding notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) , all outstanding unvested stock options or stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for a period of twelve (12) months from the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(c) Termination Date. For purposes of this Agreement, a “Change in Control” shall mean be deemed to occur upon the occurrence earliest to occur of any of the following events:
(a) 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”)) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of the Corporation representing more than fifty percent (50%) of the total voting power represented by the Corporation’s then-outstanding voting securities;
(b) The consummation of the sale or disposition by the Corporation of all or substantially all of the Corporation’s assets;
(c) The consummation of a merger or consolidation of the Corporation with or into any other entity, other than a merger or consolidation which would result in the voting securities of the Corporation outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) more than fifty percent (50%) of the total voting power represented by the voting securities of the Corporation or such surviving entity or its parent outstanding immediately after such merger or consolidation; or Notes Live, Inc. – X.X. Xxxx Employment Agreement 4
(d) Individuals who are members of the Effective Date:Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board over a period of 12 months; provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall, for purposes of this Agreement, be considered as a member of the Incumbent Board. Notwithstanding the foregoing, a transaction shall not constitute a Change in Control if its sole purpose is to change the state of the Corporation’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Corporation’s securities immediately before such transaction.
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Change in Control Termination. (a) a. Notwithstanding any other provision contained hereinof this Section 5, if the Executive’s 's employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s 's death or Disability), in each case in connection with a Change of Control or within twenty-four twelve (2412) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, and subject to the Executive’s 's compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, Agreement and the Employee Confidentiality Agreement (as defined below) and his execution and non-revocation of a Release which becomes effective within thirty (30) 30 days following the Termination Date, the Executive shall be entitled to receive the following:
(i) i. a lump sum payment equal to two (2) times the sum of the Executive’s 's Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs)Salary, which shall be paid within thirty (30) 15 days following the Termination Date: end of the Release Execution Period; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until after the beginning of the second taxable year; and,
(ii) . a lump sum payment equal to the Executive’s 's Target Bonus for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within thirty fifteen (3015) days following the Termination Dateend of the Release Execution Period; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until after the beginning of the second taxable year.
b. If the Executive timely and properly elects health and dental continuation coverage under COBRA, the Company shall reimburse the Executive for the monthly COBRA premium paid by the Executive for himself and his dependents. Such reimbursement shall be paid to the Executive on the 15th of the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of: (bi) the one year anniversary of the Termination Date; (ii) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which the Executive becomes eligible to receive substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Company's making payments under this Section 5.4(b) would violate the nondiscrimination rules applicable to non-grandfathered plans under the Affordable Care Act (the "ACA"), or result in the imposition of penalties under the ACA, the parties agree to reform this Section 5.4(b) in a manner as is necessary to comply with the ACA while preserving the economics to the Executive (determined on an after-tax basis) of this provision to the maximum extent possible.
c. Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) i. all outstanding unvested stock options or and stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full termexercisable;
(ii) . all outstanding time-based equity-based compensation awards other than stock options or and stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and payable, and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) . all outstanding performance-based equity-based compensation awards other than stock options shall become fully vested and stock appreciation rights payable at the greater of actual performance or target; provided that, any delays in the settlement or payment of such awards that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited set forth in accordance with the terms of the applicable award agreements, if the applicable performance goals agreement and that are satisfiedrequired under Section 409A shall remain in effect.
(c) d. For purposes of this Agreement, “"Change in Control” " shall mean the occurrence of any of the following after the Effective Date:
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Samples: Employment Agreement (Electro Scientific Industries Inc)
Change in Control Termination. (a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Sections 1 and 5, or without Cause (other than on account of the Executive’s death or Disability), in each case within twenty-four three (243) months prior to or within twelve (12) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and, subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement, and his execution of a Release which becomes effective within thirty sixty (3060) days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal installment payments payable in accordance with the Company’s normal payroll practices, but no less frequently than monthly, which are in the aggregate equal to two (2) 2.0 times the sum of the Executive’s Base Salary and Target Bonus annual rate of base salary for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid begin within thirty sixty (3060) days following the Termination Date: Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment payments shall not be made begin until the beginning of the second taxable year; and,year; provided further that, the first installment payment shall include all amounts that would otherwise have been paid to the Executive during the period beginning on the Termination Date and ending on the first payment date if no delay had been imposed;
(ii) a lump sum payment equal to the Executive’s Target Bonus product of (i) the Annual Incentive, if any, that the Executive would have earned for the fiscal calendar year in which the Termination Date (as determined in accordance with Section 5.62.6) occurs based on achievement of the applicable performance goals for such year and (or if greaterii) a fraction, the numerator of which is the number of days the Executive was employed by the Company during the year of termination and the denominator of which is the number of days in such year (the “Pro-Rata Bonus”). This amount shall be paid on the date that annual bonuses are paid to similarly situated executives, but in no event later than two- and-a-half (2 1/2) months following the end of the calendar year in which the Change in Control occursTermination Date occurs;
(iii) If the Executive timely and properly elects health continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), which the Company shall reimburse the Executive for the difference between the monthly COBRA premium paid by the Executive for himself and his dependents and the monthly premium amount paid by similarly situated active executives. Such reimbursement shall be paid within thirty (30) days to the Executive on the 15th day of the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) the eighteen-month anniversary of the Termination Date; provided thatDate; (ii) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which the Executive becomes eligible to receive substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Release Execution Period begins Company’s making payments under this Section 2.4(a)(iii) would violate the nondiscrimination rules applicable to non-grandfathered plans under the Affordable Care Act (the “ACA”), or result in one taxable year the imposition of penalties under the ACA and ends the related regulations and guidance promulgated thereunder), the parties agree to reform this Section 2.4(a)(iii) in another taxable year, payment shall not be made until a manner as is necessary to comply with the beginning of the second taxable yearACA.
(biv) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) of the Termination Date, all outstanding unvested stock options or stock appreciation rights equity awards granted to the Executive during the Employment Term that are then outstanding and unvested shall become fully vested and exercisable immediately thereon, and all stock options granted to the Executive that are then outstanding shall remain exercisable for a period of one year following the Termination Date, or, if shorter for a given stock option, for the remainder of their that stock option’s full term;
(ii) all outstanding equity-based compensation awards other than stock options or stock appreciation . For avoidance of doubt, this provision shall serve only to expand, and not to reduce the Executive’s rights that are not intended with respect to qualify as performance-based compensation under Section 162(m)(4)(C) of the Code shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and,
(iii) all outstanding equity-based compensation awards other than stock options and stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) of the Code shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfiedequity award.
(cb) For purposes of this Agreement, “Change Beneficial Owner” and “Beneficial Ownership” has the meaning assigned to such term in Control” shall mean Rule 13d-3 and Rule 13d-5 under the occurrence Securities Exchange Act of 1934, as amended, except that in calculating the beneficial ownership of any particular person, such person shall be deemed to have beneficial ownership of all securities that such person has the following right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the Effective Date:passage of time.
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