Change in Control. (a) Change in Control means and includes each of the following: (i) the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securities, other than (A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or (B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or (C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or (ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or (iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction (A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and (B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or (iv) the Company's stockholders approve a liquidation or dissolution of the Company. (v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto. (b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur: (i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company; (ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company; (iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or (iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 10 contracts
Samples: Severance Agreement (Harrahs Entertainment Inc), Severance Agreement (Harrahs Entertainment Inc), Severance Agreement (Harrahs Entertainment Inc)
Change in Control. (a) Upon a “Change in Control means and includes each Control,” as defined below, one hundred percent (100%) of the following:
Units shall vest automatically. A “Change in Control” shall mean the occurrence of one or more of the following events: (i) any person within the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), meaning of Section 13(d) and 14(d) of the Securities Exchange Act of 1934 or 1934, as amended (the "“Exchange Act"”), other than the Company (including its subsidiaries, directors or executive officers) and has become the rules thereunder) beneficial owner, within the meaning of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) , of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% 50 percent or more of the combined voting power of the Company's ’s then outstanding common stock or equivalent in voting securities, other than
(A) an acquisition by a trustee power of any class or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock classes of the Company, or
’s outstanding securities ordinarily entitled to vote in elections of directors (C) an acquisition of “voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iiisecurities”); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% ii) shares representing 50 percent or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding ’s voting securities by reason of share acquisitions are purchased pursuant to a tender offer or exchange offer (other than an offer by the Company or its subsidiaries, directors or executive officers); (iii) as described above and shalla result of, after such share acquisitions by or in connection with, any tender offer or exchange offer, merger or other business combination, sale of assets or contested election, or any combination of the foregoing transactions (a “Transaction”), the persons who were directors of the Company before the Transaction shall cease to constitute a majority of the Board or of any successor to the Company; (iv) following the date hereof, become the beneficial owner Company is merged or consolidated with another corporation and as a result of any additional such merger or consolidation less than 50 percent of the outstanding voting securities of the Company, surviving or resulting corporation shall then such acquisition shall constitute a Change be owned in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election aggregate by the Board or nomination for election by the Company's former stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets , other than (1) any party to such merger or consolidation, or (z2) any affiliates of any such party; or (v) the acquisition Company transfers more than 50 percent of assets its assets, or stock the last of another entity, in each case other than a transaction
(A) which series of transfers results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities transfer of more than 50 percent of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or the Company transfers a trustee or other fiduciary holding securities under an employee benefit plan business unit and/or business division responsible for more than 35% of the Company’s revenue for the twelve-month period preceding the month in which such transfer occurred, in either case, to another entity that is not wholly-owned by the Company. Any determination required above in this subsection (v) who is or becomes shall be made by the beneficial owner, directly or indirectly, of securities Compensation Committee of the Company representing 9.5% or more Board of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control Directors of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from as constituted immediately prior to the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Companyevent.
Appears in 8 contracts
Samples: Restricted Stock Unit Award Agreement (iGo, Inc.), Restricted Stock Unit Award Agreement (Mobility Electronics Inc), Restricted Stock Unit Award Agreement (Mobility Electronics Inc)
Change in Control. (a) For purposes of this Agreement, a "Change in Control means and includes each Control" shall be deemed to have occurred as of the followingfirst day that any one or more of the following conditions shall have been satisfied:
(i) the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined such term is used in Sections 3(a)(9), Section 13(d) and 14(d) of the Securities Exchange Act of 1934 1934, (the "Exchange Act") and (other than members of the rules thereunder) Controlling Shareholder Group, the Company, any trustee or other fiduciary holding securities under any employee benefit plan of the Company, or any company owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of stock of the Company), is or becomes the "beneficial ownershipowner" (as determined pursuant to defined in Rule 13d-3 under the Exchange Act) ), directly or indirectly, of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25representing 30% or more of the combined voting power of the Company's then outstanding voting securities, other than;
(Aii) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders shareholders of the Company in substantially the same proportions as their ownership approve a merger or consolidation of the stock of Company with any other corporation or entity, OTHER THAN a merger or consolidation which would result in the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result surviving entity) more than 80% of the transaction, controls, directly or indirectly, combined voting power of the voting securities of the Company or owns, directly such surviving entity outstanding immediately after such merger or indirectly, consolidation; or
(iii) the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transactionassets; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding total combined voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ power of the Company (or the subsidiary thereof any successor entity) represented by which you are employed at the date such Potential Change in Control occurs) until the earliest shares of (x) a date which is six months from the occurrence of such Potential Change in Control voting stock owned by members of the CompanyControlling Shareholder Group is reduced to 30 percent or less. Notwithstanding the foregoing, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of no event shall a Change in Control be deemed to have occurred, with respect to the Executive, if the Executive is part of a purchasing group which consummates a transaction causing a Change in Control. The Executive shall be deemed "part of a purchasing group" for purposes of the Companypreceding sentence if the Executive is a direct or indirect equity participant in the purchasing company or group.
Appears in 8 contracts
Samples: Executive Severance Agreement (Wackenhut Corp), Executive Severance Agreement (Wackenhut Corp), Employment Agreement (Wackenhut Corp)
Change in Control. (a) For purposes of this Agreement, a “Change in Control Control” means and includes each of the following:
(i) the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes occurring during the Term:
4.4.1 individuals who, as of the date of this clause (a): an acquisition Agreement, constitute the Board of Directors of the Company's securities by Company (the Company which causes the Company's voting securities beneficially owned by “Incumbent Board”) cease for any reason to constitute at least a person or group to represent 25% or more majority of the combined voting power of the Company's then outstanding voting securitiesBoard; provided, however, that if a any person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than becoming a director designated by a person who shall have entered into an agreement with subsequent to the Company to effect a transaction described in clauses (i) or (iii) date of this Section) Agreement, whose election by the Board election, or nomination for election by the Company's stockholders ’s shareholders, was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of directors comprising the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Incumbent Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan election or nomination of an individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the directors of the Company, or a trustee other actual or threatened solicitation of proxies by or on behalf of an individual, entity or group other fiduciary holding securities under an employee benefit plan than the Board relating to the election of the directors of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right shall be deemed to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect thatbe, for purposes of this Agreement, a Potential Change member of the Incumbent Board; or
4.4.2 the date that any one person, or more than one person acting as a group (as defined in Control Treas. Regs. Section 1.409A-3), acquires ownership of stock of the Company has occurred. You agree that, subject to together with stock held by such person or group, constitutes more than fifty percent (50%) of the terms and conditions total fair market value or total voting power of this Agreementthe stock of the Company; or
4.4.3 the date any one person, or more than one person acting as a group (as defined in Treas. Regs. Section 1.409A-3), acquires (or has acquired during the event 12-month period ending on the date of a Potential Change in Control the most recent acquisition by such person or persons) ownership of stock of the Company possessing thirty percent (30%) or more of the total voting power of the stock of the Company, you will remain other than the acquisition by any person or group, which as of the date hereof has such ownership; or
4.4.4 the Company’s execution of an agreement for a merger or consolidation or other business combination involving the Company in which the employ Company is not the surviving corporation, or, if immediately following such merger or consolidation or other business combination, less than fifty percent (50%) of the surviving corporation’s outstanding voting stock is held by persons who are stockholders of the Company (immediately prior to such merger or consolidation or other business combination; or
4.4.5 the subsidiary thereof by which you are employed Company’s adoption of a plan of dissolution or liquidation, other than if the Company is in bankruptcy at the date time such Potential Change in Control occurs) until the earliest plan of (x) a date which dissolution or liquidation is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Companyadopted.
Appears in 8 contracts
Samples: Employment Agreement (Perma Fix Environmental Services Inc), Employment Agreement (Perma Fix Environmental Services Inc), Employment Agreement (Perma Fix Environmental Services Inc)
Change in Control. If a Change in Control shall have occurred during the term of this Agreement, the provisions of this Agreement shall become operative and MTS agrees to employ the Executive and to provide the benefits stated in this Agreement.
(a) Change in Control Control, shall, for purposes of this Agreement, means and includes each a change in control of MTS which would be required to be reported in response to Item 1 of Form 8-K promulgated under the followingSecurities Exchange Act of 1934, as amended (the "Exchange Act"), whether or not MTS is then subject to such reporting requirement, including, without limitation, if:
(i) the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined such term is used in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act, including any affiliate or associate as defined in Rule 12(b)-2 under the Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the CompanyMTS, or a any trustee or other fiduciary holding securities under an employee benefit plan of MTS, or any corporation owned, directly or indirectly, by the Companystockholders of MTS in substantially the same proportions as their ownership of stock of MTS) who is or becomes the a "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company MTS representing 9.535% or more of the Companycombined voting power of MTS's then outstanding voting securities carrying securities; or
(ii) the right Board of Directors is comprised of fewer than 65% of the individuals described in subsection (b) below; or
(iii) the stockholders of MTS approve a definitive agreement to merge or consolidate MTS with or into another corporation or other enterprise in which the holders of outstanding stock of MTS entitled to vote in elections of persons to directors immediately before such merger or consolidation hold less than 80% of the Board increases such beneficial ownership voting power of the survivor of such securities by an additional five percentage points merger or more thereby beneficially owning 14.5% consolidation or more its parent, or approve a plan of such securitiesliquidation; or
(iv) The at least 60% of MTS's assets are sold and transferred to another corporation or other enterprise that is not a subsidiary, direct or indirect, or other affiliate of MTS; or
(v) the Board adopts of Directors of MTS determines, by a resolution vote of a majority of its entire membership, that a tender offer statement by any person (as defined above) indicates an intention on the part of such person to the effect thatacquire control of MTS.
(b) Board of Directors shall, for purposes of this Agreementsubsection (a), mean:
(i) individuals who on the date hereof constituted the Board of MTS, and
(ii) any new director who subsequently was elected or nominated for election by a Potential Change in Control majority of the Company has occurred. You agree that, subject directors who held such office immediately prior to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the CompanyControl.
Appears in 8 contracts
Samples: Change in Control Agreement (MTS Systems Corp), Change in Control Agreement (MTS Systems Corp), Change in Control Agreement (MTS Systems Corp)
Change in Control. (a) For purposes of this Agreement, a “Change in Control means and includes each of the followingControl” will occur:
(iA) Upon the acquisitionacquisition by any individual, entity or group, including any Person (as defined in the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”)), of beneficial ownership (as defined in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, by any "person" or "group" of twenty (as those terms are defined in Sections 3(a)(9), 13(d20) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% percent or more of the combined voting power of the Company's then outstanding voting securitiescapital stock of Company that by its terms may be voted on all matters submitted to stockholders of Company generally (“Voting Stock”); provided, other thanhowever, that the following acquisitions shall not constitute a Change in Control:
1) Any acquisition directly from Company (Aexcluding any acquisition resulting from the exercise of a conversion or exchange privilege in respect of outstanding convertible or exchangeable securities unless such outstanding convertible or exchangeable securities were acquired directly from Company);
2) an Any acquisition by Company;
3) Any acquisition by an employee benefit plan (or related trust) sponsored or maintained by Company or any corporation controlled by Company; or
4) Any acquisition by any corporation pursuant to a trustee reorganization, merger or consolidation involving Company, if, immediately after such reorganization, merger or consolidation, each of the conditions described in clauses (1), (2) and (3) of subparagraph 3(a)(iii)(B) below shall be satisfied; and provided further that, for purposes of clause (2) immediately above, if (i) any Person (other fiduciary holding securities under than Company or any employee benefit plan (or related trust) sponsored or maintained by the Company or any person corporation controlled by the Company or by any employee benefit plan (or related trustCompany) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% twenty (20) percent or more of the combined voting power of the Company's then outstanding voting securities Voting Stock by reason of share acquisitions an acquisition of Voting Stock by the Company as described above Company, and (ii) such Person shall, after such share acquisitions acquisition by the Company, become the beneficial owner of any additional voting securities shares of the CompanyVoting Stock and such beneficial ownership is publicly announced, then such acquisition additional beneficial ownership shall constitute a Change in Control; or
(iiB) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) Upon the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, merger or business combination consolidation of Company, or (y) a sale sale, lease, exchange or other disposition transfer of all or substantially all of the assets of Company's assets ; excluding, however, any such reorganization, merger, consolidation, sale, lease, exchange or (zother transfer with respect to which, immediately after consummation of such transaction:
1) All or substantially all of the acquisition beneficial owners of assets or stock the Voting Stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities Company outstanding immediately before the prior to such transaction continuing continue to represent beneficially own, directly or indirectly (either by remaining outstanding or by being converted into voting securities of the Company or the person thatentity resulting from such transaction), as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company more than fifty (the Company or such person, the "Successor Entity")50) directly or indirectly, at least a majority percent of the combined voting power of the Successor Entity's outstanding voting securities of the entity resulting from such transaction (including, without limitation, Company or an entity which as a result of such transaction owns Company or all or substantially all of Company’s property or assets, directly or indirectly) (the “Resulting Entity”) outstanding immediately after the such transaction, in substantially the same proportions relative to each other as their ownership immediately prior to such transaction; and
2) No Person (Bother than any Person that beneficially owned, immediately prior to such reorganization, merger, consolidation, sale or other disposition, directly or indirectly, Voting Stock representing twenty (20) after which no person percent or group more of the combined voting power of Company’s then outstanding securities) beneficially owns voting securities representing 25% owns, directly or indirectly, twenty (20) percent or more of the combined voting power of the Successor then outstanding securities of the Resulting Entity; and
3) At least a majority of the members of the board of directors of the entity resulting from such transaction were members of the board of directors of Company (the “Board”) at the time of the execution of the initial agreement or action of the Board authorizing such reorganization, merger, consolidation, sale or other disposition; or
(C) Upon the consummation of a plan of complete liquidation or dissolution of Company; or
(D) When the Initial Directors cease for any reason to constitute at least a majority of the Board. For this purpose, an “Initial Director” shall mean those individuals serving as the directors of Company immediately after Company ceased to be wholly-owned by Xxxx Xxx Corporation; provided, however, that no person any individual who becomes a director of Company at or group shall be treated after the first annual meeting of stockholders of Company whose election, or nomination for purposes election by the Company’s stockholders, was approved by the vote of this clause (B) as beneficially owning 25% or more of combined voting power at least a majority of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of Initial Directors then comprising the Board (or by the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control nominating committee of the Company Board, if such committee is comprised of Initial Directors and has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(bauthority) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred been an Initial Director; and provided further, that no individual shall be deemed to be an Initial Director if the following occur:
such individual initially was elected as a director of Company as a result of: (i1) The Company enters into an actual or threatened solicitation by a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person Person (other than an employee benefit plan the Board) made for the purpose of opposing a solicitation by the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons Board with respect to the Board increases such beneficial ownership election or removal of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securitiesdirectors; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z2) any other actual or threatened solicitation of proxies or consents by or on behalf of any Person (other than the occurrence of a Change in Control of the CompanyBoard).
Appears in 8 contracts
Samples: Severance/Change in Control Agreement (Hanesbrands Inc.), Severance/Change in Control Agreement (Hanesbrands Inc.), Severance/Change in Control Agreement (Hanesbrands Inc.)
Change in Control. (a) If Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason within two years following a Change in Control means Control, the termination of his employment shall be deemed to have occurred in the context of a Change in Control, and includes each he shall be entitled to the separation benefits set forth in Section 10(c); provided, however, that if the separation benefits would result in an excess parachute payment under Internal revenue Code Section 280G(a), the separation benefits shall be reduced so as not to result in an excess parachute payment.
(b) For purposes of this Agreement, a “Change in Control” of the Company shall mean any of the following:
(i) the acquisition, directly or indirectly, by any "Any “person" or "group" ” (as those terms are defined in Sections 3(a)(9), 13(d) and 14(dSection 13(h)(8)(E) of the Securities Exchange Act of 1934 (the "Exchange Act") and ), other than the rules thereunder) Company or any of "its subsidiaries or any employee benefit plan of the Company or any of its subsidiaries, becomes the “beneficial ownership" owner” (as determined pursuant to defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (or any successor to all or substantially all of the Company’s assets) representing more than 30% of the combined voting power of the Company’s (or such successor’s) then outstanding voting securities that may be cast for the election of directors of the Company (other than as a result of an issuance of securities initiated by the Company (or such successor) in the ordinary course of business);
(ii) As the result of, or in connection with, any cash tender or exchange offer, merger or other business combination or contested election, or any combination of the foregoing transactions, less than 51% of the combined voting power of the then outstanding securities of the Company or any successor company or entity entitled to vote generally in the election of the directors of the Company or such other corporation or entity after such transaction are held in the aggregate by the holders of the Company’s securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% immediately prior to such transaction;
(iii) All or more substantially all of the combined voting power assets of the Company are sold, exchanged or otherwise transferred;
(iv) The Company’s stockholders approve a plan of liquidation or dissolution of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(iiv) During any 12 month period within the Term, Continuing Directors cease for any reason to constitute at least a majority of two consecutive yearsthe Board. For this purpose, individuals who, a “Continuing Director” is any person who at the beginning of such periodthe Term was a member of the Board, constitute or any person first elected to the Board together with during the Term whose election, or the nomination for election by the Company’s shareholders, was approved by a vote of at least two-thirds of the Continuing Directors then in office, but excluding any new director(sperson (A) initially appointed or elected to office as result of either an actual or threatened election and/or proxy contest by or on behalf of any “person” or “group” (within the meaning of Section 13(d) of the Exchange Act) other than a director the Board, or (B) designated by a person any “person” or “group” (within the meaning of Section 13(d) of the Exchange Act) ) who shall have has entered into an agreement with the Company to effect a transaction described in clauses (iSection 11(b)(i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) ). For the Company's stockholders approve a liquidation or dissolution avoidance of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authoritydoubt, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall not be deemed to have occurred if the following occur:
under subparagraphs (ii)-(v) The Company enters into above unless such event also constitutes a written agreement or letter of intent, the consummation of which would result “change in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who control event” as such term is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.Section 409A.
Appears in 8 contracts
Samples: Executive Employment Agreement (Delek US Holdings, Inc.), Executive Employment Agreement (Delek US Holdings, Inc.), Executive Employment Agreement (Delek US Holdings, Inc.)
Change in Control. (a) Change in Control means and includes each of the following:
(i) the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential “Change in Control Control” of the Company" Company shall be deemed to have occurred if the following occurat such time as:
i. on the date that any “Person” (i) The Company enters into a written agreement or letter of intentas defined below), the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan (A) the Company or any of the Companyits subsidiaries, or (B) a trustee or other fiduciary holding securities under an employee benefit plan of the CompanyCompany or any of its Affiliates, (C) who is an underwriter temporarily holding stock pursuant to an offering of such stock, or becomes the beneficial owner(D) a corporation owned, directly or indirectly, of securities by the shareholders of the Company representing 9.5in substantially the same proportions as their ownership of the Company’s stock, acquires ownership of the Company’s stock that, together with stock held by such Person, constitutes more than 50% of the total fair market value or total voting power of the Company’s stock. However, if any Person is considered to own already more than 50% of the total fair market value or total voting power of the Company’s stock, the acquisition of additional stock by the same Person is not considered to be a Change in Control. In addition, if any Person has effective control of the Company through ownership of 50% or more of the total voting power of the Company's then outstanding voting securities carrying ’s stock, the right acquisition of additional control of the Company by the same Person is not considered to vote cause a Change in elections of persons Control pursuant to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securitiesthis Agreement Section 9(a)(i); or
(iv) The ii. on the date during any 12-month period when a majority of members of the Board adopts is replaced by directors whose appointment or election is not endorsed by a resolution majority of the Board before the date of the appointment or election; provided, however, that any such director shall not be considered to be endorsed by the effect thatBoard if his or her initial assumption of office occurs as a result of an actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or
iii. on the date a plan of reorganization, for purposes merger, consolidation, sale of this Agreementall or substantially all of the assets of the Company or similar transaction occurs or is effectuated in which the Company is not the resulting entity; provided, a Potential however, that such an event listed above will be deemed to have occurred or to have been effectuated upon receipt of all required regulatory approvals not including the lapse of any required waiting periods. However, there is no Change in Control of the Company has occurred. You agree that, subject when there is such a transfer to the terms and conditions of this Agreement, in the event of (i) a Potential Change in Control of the Company, you will remain in the employ shareholder of the Company (immediately before the asset transfer) in exchange for or with respect to the subsidiary thereof Company’s stock; (ii) an entity, at least 50% of the total value or voting power of the stock of which is owned, directly or indirectly, by which you are employed at the date such Potential Change in Control occurs) until the earliest of Company; (xiii) a date which is six months from Person that owns directly or indirectly, at least 50% of the occurrence of such Potential Change in Control total value or voting power of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, ’s outstanding stock; or (ziv) an entity, at least 50% of the occurrence total value or voting power of the stock of which is owned by a Change in Control Person that owns, directly or indirectly, at least 50% of the total value or voting power of the Company.’s outstanding stock. For purposes of subparagraphs (i), (ii) and (iii) above:
Appears in 8 contracts
Samples: Retirement Transition and Award Agreement (Texas Capital Bancshares Inc/Tx), Executive Employment Agreement (Texas Capital Bancshares Inc/Tx), Executive Employment Agreement (Texas Capital Bancshares Inc/Tx)
Change in Control. (a) For purposes of this Agreement, Change in of Control means and includes each the occurrence of any of the followingfollowing events:
(i) the acquisition, directly The accumulation in any number of related or indirectly, unrelated transactions by any "person" or "group" person of beneficial ownership (as those terms are defined such term is used in Sections 3(a)(9)Rule 13d-3, 13(d) and 14(d) of promulgated under the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act") and the rules thereunder”)) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% 50 percent or more of the combined total voting power of the Company's then outstanding ’s voting securitiesstock; provided that for purposes of this subsection (a), other than
a Change in Control will not be deemed to have incurred if the accumulation of 50 percent or more of the voting power of the Company’s voting stock results from any acquisition of voting stock (Ai) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or Company, (ii) by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company’s subsidiaries, or
or (Ciii) an acquisition of voting securities by any person pursuant to a merger, consolidation, reorganization or other transaction described in clause (iiia “Business Combination”) below that would not be cause a Change in Control under clause subsection (iii)ii) below; Notwithstanding or
(ii) A consummation of a Business Combination, unless, immediately following that Business Combination, substantially all the foregoing, neither persons who were the beneficial owners of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition voting stock of the Company's securities by the Company which causes the Company's voting securities immediately prior to that Business Combination beneficially owned by a person own, directly or group to represent 25% or more indirectly, at least 50 percent of the combined voting power of the voting stock of the entity resulting from that Business Combination (including, without limitation, an entity that as a result of that transaction owns the Company's then outstanding voting securities; provided, howeveror all or substantially all of the Company assets, that if a person either directly or group shall become the beneficial owner of 25% through one or more subsidiaries) in substantially the same proportions relative to each other as the ownership, immediately prior to that Business Combination, of the combined voting power stock of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or;
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a A sale or other disposition of all or substantially all of the Company's assets or of the Company except pursuant to a Business Combination that would not cause a Change in Control under subsection (zii) the acquisition of assets or stock of another entity, in each case other above;
(iv) At any time less than a transaction
(A) which results in majority of the Company's voting securities outstanding immediately before members of the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities Board of Directors of the Company or any entity resulting from any Business Combination are Incumbent Board Members.
(v) Approval by the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business shareholders of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least of a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a complete liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, except pursuant to determine conclusively whether a Business Combination that would not cause a Change in Control under subsection (ii) above; or
(vi) Any other transaction or event that the Board of Directors of the Company has occurred pursuant to the above definition, and the date of the occurrence of such identifies as a Change in Control and any incidental matters relating theretofor purposes of this Agreement.
(bvii) For purposes of this Agreement, an “Incumbent Board Member” shall mean any individual who either is (a) a "Potential Change in Control member of the Company Board of Directors as of the Effective Date or (b) a member who becomes a member of the Company" shall be deemed ’s Board of Directors subsequent to have occurred if the following occur:
Effective Date of this Agreement, whose election or nomination by the Company’s shareholders, was approved by a vote of at least a majority of the then Incumbent Board Members (i) The Company enters into a written agreement either by specific vote or letter of intent, the consummation of which would result in the occurrence by approval of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities proxy statement of the Company representing 9.5% in which that person is named as a nominee for director, without objection to that nomination), but excluding, for that purpose, any individual whose initial assumption of office occurs as a result of an actual or more threatened election contest (within the meaning of Rule 14A-11 of the Company's then outstanding voting securities carrying the right to vote in elections of persons Exchange Act) with respect to the Board increases such beneficial ownership election or removal of such securities directors or other actual threatened solicitation or proxies or consents by an additional five percentage points or more thereby beneficially owning 14.5% or more on behalf of such securities; or
(iv) The Board adopts the person other than a resolution to the effect that, for board of directors. For purposes of this Agreement, a Potential Change in Control person means any individual, corporation, partnership, limited liability company, joint venture, incorporated or unincorporated association, joint-stock company, trusts, unincorporated organization or any other entity of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Companyany kind.
Appears in 7 contracts
Samples: Employment Agreement, Employment Agreement (PRGX Global, Inc.), Employment Agreement (PRGX Global, Inc.)
Change in Control. For purposes of this Agreement, a “Change in Control” of the Company shall be deemed to have occurred if:
3.1 there shall be consummated:
(a) any merger, consolidation or similar transaction involving the Company (a “Transaction”); provided, however, any such Transaction shall not constitute a Change in Control means and includes each if the holders of the following:outstanding voting securities of the Company immediately prior to such Transaction hold, in the aggregate, securities possessing more than fifty percent (50%) of the total combined voting power of all outstanding voting securities of the surviving entity (or the parent of the surviving entity) immediately after such Transaction; or
(b) any sale, transfer or other disposition (in one transaction or a series of related transactions during the twelve (12) month period ending on the date of the most recent transaction) of all or substantially all of the assets of the Company; provided, however, that such sale, transfer or other disposition shall not constitute a Change in Control if the holders of the outstanding voting securities of the Company immediately prior to such transaction(s) receive as a distribution with respect to securities of the Company, in the aggregate, securities possessing more than fifty percent (50%) of the total combined voting power of all outstanding voting securities of the acquiring entity immediately after such transaction(s). In addition, a transfer of assets by the Company shall not constitute a Change in Control if the assets are transferred to (i) a shareholder of the acquisitionCompany in exchange for or with respect to the shareholder’s securities of the Company; (ii) an entity, at least fifty percent (50%) or more of the total value or total voting power of which is owned, directly or indirectly, by the Company; (iii) a person (or persons acting as a group) that owns, directly or indirectly, at least fifty percent (50%) or more of the total value or total voting power of all the outstanding securities of the Company; (iv) an entity, at least fifty percent (50%) of the total value or total voting power of which is owned, directly or indirectly, by a person described in subsection (iii) of this paragraph. For purposes of this paragraph, “substantially all” shall mean assets of the Company that have a total gross fair market value equal to or more than fifty percent (50%) of the total gross fair market value of all of the assets of the Company immediately prior to the applicable transaction(s); or
3.2 any "person" or "group" person (as those terms are defined such term is used in Sections 3(a)(9), 13(d) and 14(d14(d)(2) of the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act") and ”)), acquires, directly or indirectly, beneficial ownership (within the rules thereunder) meaning of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in of the election of directors Company possessing more than fifty percent ("voting securities"50%) of the Company that represent 25% or more of the total combined voting power of the Company's then all outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During 3.3 at any time during any period of two 12 consecutive yearsmonths during the term of this Agreement, individuals who, who at the beginning of such period, the 12-month period constituted the entire Board of Directors of the Company do not for any reason constitute a majority of the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with of Directors, unless the Company to effect a transaction described in clauses (i) election, or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders ’s stockholders, of each new director was approved by a vote of at least two-thirds a majority of the directors then still in office who either were directors at the beginning of the two year period or (but not including any new director whose election or nomination for is in connection with an actual or threatened proxy contest relating to the election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all directors of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 7 contracts
Samples: Change in Control and Severance Agreement (Ceradyne Inc), Change in Control and Severance Agreement (Ceradyne Inc), Change in Control and Severance Agreement (Ceradyne Inc)
Change in Control. A Change In Control will be deemed to have occurred for purposes hereof, upon any one of the following events: (a) Change in Control means and includes each any person (within the meaning of the following:
(i) the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act"”)), other than the Company (including its subsidiaries, directors, and executive officers) and has become the rules thereunder) beneficial owner, within the meaning of "beneficial ownership" (as determined pursuant to Rule 13d-3 l3d-3 under the Exchange Act, of fifty percent (50%) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of the Company's ’s then outstanding Common Stock or equivalent in voting securities, other than
(A) an acquisition by a trustee power of any class or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock classes of the Company, or
’s outstanding securities ordinarily entitled to vote in elections of directors (C) an acquisition of “voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iiisecurities”); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% b) shares representing fifty percent (50%) or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding ’s voting securities by reason of share acquisitions are purchased pursuant to a tender offer or exchange offer (other than an offer by the Company or its subsidiaries or affiliates); or (c) as described above and shalla result of, after such share acquisitions by or in connection with, any tender offer or exchange offer, merger or other business combination, sale of assets, or contested election, or any combination of the foregoing transactions (a “Transaction”), the persons who were Directors of the Company before the Transaction shall cease to constitute a majority of the Board of the Company or of any successor to the Company, become ; or (d) the beneficial owner Company is merged or consolidated with another corporation and as a result of any additional such merger or consolidation less than fifty percent (50%) of the outstanding voting securities of the surviving or resulting corporation shall then be owned in the aggregate by the former shareholders of the Company, then other than (i) any party to such acquisition shall constitute a Change in Control; or
merger or consolidation, or (ii) During any period affiliates of two consecutive years, individuals who, at the beginning of any such period, constitute the Board together with any new director(sparty; or (e) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses transfers more than fifty percent (i) or (iii50%) of this Sectionits assets, or the last of a series of transfers results in the transfer of more than fifty percent (50%) whose election by of the Board or nomination for election by assets of the Company's stockholders was approved by a vote of at least two, to another entity that is not wholly-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation owned by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (zvi) the acquisition of assets or stock of another entityBoard, in each case other than approves a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, resolution that no person or group shall be treated for purposes of this clause Agreement a Change In Control has occurred. For purposes of Subsection (Be), the determination of what constitutes fifty percent (50%) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result assets of the voting power held in Company shall be made by the Company Board, as constituted immediately prior to the consummation of the transaction; or
events that would constitute a Change In Control if fifty percent (iv50%) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority’s assets were transferred in connection with such events, which shall be exercised in its sole discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) . For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intentSection 8, the consummation of which would result in the occurrence of a Change in Control of the term “Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company” shall mean USHS.
Appears in 7 contracts
Samples: Separation Agreement, Separation Agreement (Us Home Systems Inc), Employment Agreement (Us Home Systems Inc)
Change in Control. (a) A “Change in Control means and includes each Control” of the followingCompany shall be deemed to have occurred if any of the events set forth in any one of the following subparagraphs shall occur:
(i) the acquisition, directly or indirectly, The acquisition by any "person" individual, entity or "group" group (as those terms are defined in Sections 3(a)(9), 13(dwithin the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act"”)) and the rules thereunder(a “Person”) of "beneficial ownership" ownership (as determined pursuant to within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than 50% of either (y) the then-outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (z) the combined voting power of the then-outstanding voting securities of the Company entitled to vote generally in the election of directors ("voting securities"the “Outstanding Company Voting Securities”); provided, however, that for purposes of this subsection (i), the following acquisitions shall not constitute a Change of Control: (1) of the Company that represent 25% or more of the combined voting power of any acquisition directly from the Company's then outstanding voting securities, other than
(A2) an any acquisition by a trustee or other fiduciary holding securities under the Company, (3) any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person corporation controlled by the Company, or
or (B4) an any acquisition of voting securities by the Company or a any corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause which complies with clauses (1) and (2) of subsection (iii) below that would not be a Change in Control under clause of this definition; or
(iii); Notwithstanding the foregoingii) Individuals who, neither as of the following events shall date hereof, constitute an "acquisition" by the Board (the “Incumbent Board”) cease for any person or group for purposes of this clause (a): an acquisition reason to constitute at least a majority of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securitiesBoard; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than individual becoming a director designated by a person who shall have entered into an agreement with subsequent to the Company to effect a transaction described in clauses (i) or (iii) of this Section) date hereof whose election by the Board election, or nomination for election by the Company's stockholders ’s shareholders, was approved by a vote of at least two-thirds a majority of the directors then still in office who either comprising the Incumbent Board shall be considered as though such individual were directors at the beginning a member of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereofIncumbent Board; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) Consummation of (x) a merger, consolidation, reorganization, merger or business combination consolidation or (y) a sale or other disposition of all or substantially all of the Company's assets or of the Company (z) the acquisition of assets or stock of another entitya “Business Combination”), in each case other than a transaction
case, unless, following such Business Combination, (A1) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding all or by being converted into voting securities substantially all of the Company or individuals and entities who were the person thatbeneficial owners, as a result respectively, of the transaction, controlsOutstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of, respectively, the then-outstanding shares of common stock and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Company or owns, directly or indirectly, all or substantially all of the Company's ’s assets either directly or otherwise succeeds through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to the business such Business Combination, of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, and (the Company or such person, the "Successor Entity")2) directly or indirectly, at least a majority of the combined voting power members of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more board of directors of the combined voting power corporation resulting from such Business Combination were members of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power Incumbent Board at the time of the Successor Entity solely as a result execution of the voting power held in the Company prior to the consummation initial agreement, or of the transactionaction of the Board, providing for such Business Combination; or
(iv) Approval by the Company's stockholders approve shareholders of the Company of a complete liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 6 contracts
Samples: Restricted Stock Unit Award Agreement (Belden Inc.), Performance Share Award Agreement (Belden Inc.), Restricted Stock Unit Award Agreement (Belden Inc.)
Change in Control. (a) For purposes of this Agreement, Change in of Control means and includes each the occurrence of any of the followingfollowing events:
(i) the acquisition, directly The accumulation in any number of related or indirectly, unrelated transactions by any "person" or "group" person of beneficial ownership (as those terms are defined such term is used in Sections 3(a)(9)Rule 13d-3, 13(d) and 14(d) of promulgated under the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act") and the rules thereunder”)) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% 50 percent or more of the combined total voting power of the Company's then outstanding ’s voting securitiesstock; provided that for purposes of this subsection (a), other than
a Change in Control will not be deemed to have incurred if the accumulation of 50 percent or more of the voting power of the Company’s voting stock results from any acquisition of voting stock (Ai) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or Company, (ii) by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company’s subsidiaries, or
or (Ciii) an acquisition of voting securities by any person pursuant to a merger, consolidation, reorganization or other transaction described in clause (iiia “Business Combination”) below that would not be cause a Change in Control under clause subsection (iii)ii) below; Notwithstanding or
(ii) A consummation of a Business Combination, unless, immediately following that Business Combination, substantially all the foregoing, neither persons who were the beneficial owners of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition voting stock of the Company's securities by the Company which causes the Company's voting securities immediately prior to that Business Combination beneficially owned by a person own, directly or group to represent 25% or more indirectly, at least 50 percent of the combined voting power of the voting stock of the entity resulting from that Business Combination (including, without limitation, an entity that as a result of that transaction owns the Company's then outstanding voting securities; provided, howeveror all or substantially all of the Company assets, that if a person either directly or group shall become the beneficial owner of 25% through one or more subsidiaries) in substantially the same proportions relative to each other as the ownership, immediately prior to that Business Combination, of the combined voting power stock of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or;
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a A sale or other disposition of all or substantially all of the Company's assets or of the Company except pursuant to a Business Combination that would not cause a Change in Control under subsection (zii) the acquisition of assets or stock of another entity, in each case other above;
(iv) At any time less than a transaction
(A) which results in majority of the Company's voting securities outstanding immediately before members of the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities Board of Directors of the Company or any entity resulting from any Business Combination are Incumbent Board Members.
(v) Approval by the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business shareholders of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least of a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a complete liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, except pursuant to determine conclusively whether a Business Combination that would not cause a Change in Control under subsection (ii) above; or
(vi) Any other transaction or event that the Board of Directors of the Company has occurred pursuant to the above definition, and the date of the occurrence of such identifies as a Change in Control and any incidental matters relating theretofor purposes of this Agreement.
(bvii) For purposes of this Agreement, an “Incumbent Board Member” shall mean any individual who either is (a) a "Potential Change in Control member of the Company Board of Directors as of the effective date of this Agreement or (b) a member who becomes a member of the Company" shall be deemed ’s Board of Directors subsequent to have occurred if the following occur:
date of this Agreement, whose election or nomination by the Company’s shareholders, was approved by a vote of at least a majority of the then Incumbent Board Members (i) The Company enters into a written agreement either by specific vote or letter of intent, the consummation of which would result in the occurrence by approval of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities proxy statement of the Company representing 9.5% in which that person is named as a nominee for director, without objection to that nomination), but excluding, for that purpose, any individual whose initial assumption of office occurs as a result of an actual or more threatened election contest (within the meaning of Rule 14A-11 of the Company's then outstanding voting securities carrying the right to vote in elections of persons Exchange Act) with respect to the Board increases such beneficial ownership election or removal of such securities directors or other actual threatened solicitation or proxies or consents by an additional five percentage points or more thereby beneficially owning 14.5% or more on behalf of such securities; or
(iv) The Board adopts the person other than a resolution to the effect that, for board of directors. For purposes of this Agreement, a Potential Change in Control person means any individual, corporation, partnership, limited liability company, joint venture, incorporated or unincorporated association, joint-stock company, trusts, unincorporated organization or any other entity of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Companyany kind.
Appears in 6 contracts
Samples: Employment Agreement (PRGX Global, Inc.), Employment Agreement (PRGX Global, Inc.), Employment Agreement (PRG-Schultz International, Inc.)
Change in Control. A Change In Control will be deemed to have occurred for purposes hereof, upon any one of the following events: (a) Change in Control means and includes each any person (within the meaning of the following:
(i) the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act"”)), other than the Company (including its subsidiaries, directors, and executive officers) and has become the rules thereunder) beneficial owner, within the meaning of "beneficial ownership" (as determined pursuant to Rule 13d-3 l3d-3 under the Exchange Act, of fifty percent (50%) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of the Company's ’s then outstanding Common Stock or equivalent in voting securities, other than
(A) an acquisition by a trustee power of any class or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock classes of the Company, or
’s outstanding securities ordinarily entitled to vote in elections of directors (C) an acquisition of “voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iiisecurities”); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% b) shares representing fifty percent (50%) or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding ’s voting securities by reason of share acquisitions are purchased pursuant to a tender offer or exchange offer (other than an offer by the Company or its subsidiaries or affiliates); or (c) as described above and shalla result of, after such share acquisitions by or in connection with, any tender offer or exchange offer, merger or other business combination, sale of assets, or contested election, or any combination of the foregoing transactions (a “Transaction”), the persons who were Directors of the Company before the Transaction shall cease to constitute a majority of the Board of the Company or of any successor to the Company, become ; or (d) the beneficial owner Company is merged or consolidated with another corporation and as a result of any additional such merger or consolidation less than fifty percent (50%) of the outstanding voting securities of the surviving or resulting corporation shall then be owned in the aggregate by the former shareholders of the Company, then other than (i) any party to such acquisition shall constitute a Change in Control; or
merger or consolidation, or (ii) During any period affiliates of two consecutive years, individuals who, at the beginning of any such period, constitute the Board together with any new director(sparty; or (e) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses transfers more than fifty percent (i) or (iii50%) of this Sectionits assets, or the last of a series of transfers results in the transfer of more than fifty percent (50%) whose election by of the Board or nomination for election by assets of the Company's stockholders was approved by a vote of at least two, to another entity that is not wholly-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation owned by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (zvi) the acquisition of assets or stock of another entityBoard, in each case other than approves a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, resolution that no person or group shall be treated for purposes of this clause Agreement a Change In Control has occurred. For purposes of Subsection (Be), the determination of what constitutes fifty percent (50%) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result assets of the voting power held in Company shall be made by the Company Board, as constituted immediately prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated events that would constitute a Change in In Control if fifty percent (50%) of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote ’s assets were transferred in elections of persons to the Board increases connection with such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreementevents, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Companyits sole discretion.
Appears in 5 contracts
Samples: Employment Agreement (Us Home Systems Inc), Employment Agreement (Us Home Systems Inc), Employment Agreement (Us Home Systems Inc)
Change in Control. (a) For purposes of this Agreement, a “Change in Control means and includes each of the followingControl” shall be deemed to have occurred if:
(i) any one person, or more than one person acting as a group, acquires (or has acquired during the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) 12 month period ending on the date of the Securities Exchange Act most recent acquisition) ownership of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") stock of the Company or the Bank possessing more than 50% of the total voting power of the Company’s or the Bank’s stock; provided, however, it is expressly acknowledged by the Executive that represent 25this provision shall not be applicable to any person who is, as of the date of this Agreement, a Director of the Company or the Bank;
(ii) a majority of the members of the Company’s or the Bank’s Board of Directors is replaced during any 12 month period by directors whose appointment for election is not endorsed by a majority of the members of the Company’s or the Bank’s board prior to the date of the appointment or election;
(iii) a merger or consolidation where the holders of the Bank’s or the Company’s voting stock immediately prior to the effective date of such merger or consolidation own less than 50% of the voting stock of the entity surviving such merger or consolidation;
(iv) any one person, or more than one person acting as a group, acquired (or has acquired during the twelve month period ending on the date of the most recent acquisition by such person or persons) assets from the Bank that have a total fair market value greater than 50% of the total fair market value of all of the Bank’s assets immediately before the acquisition or acquisitions; provided, however, transfer of assets which otherwise would satisfy the requirements of this subsection (iv) will not be treated as a change in the ownership of such assets if the assets are transferred to:
(a) an entity, 50% or more of the combined total value or voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation which is owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the Bank; (b) a person, or more than one person that, acting as a result of the transactiongroup, controls, directly or indirectly, the Company or that owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 2550% or more of the combined total value or voting power of all the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power outstanding stock of the Successor Entity solely as a result of Company or the voting power held in the Company prior to the consummation of the transactionBank; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Companyperson, or more than one person acting as a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial ownergroup, that owns, directly or indirectly, of securities of the Company representing 9.550% or more of the Company's then total value or voting power of all the outstanding stock of the Company or the Bank; or
(c) an entity, at least 50% of the total value or voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities power is owned, directly or indirectly by an additional five percentage points a person who owns, directly or more thereby beneficially owning 14.5indirectly, 50% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes total value or voting power of this Agreement, a Potential Change in Control all the outstanding stock of the Company has occurredBank. You agree that, subject to the terms and conditions of this Agreement, in the Each event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of comprising a Change in Control is intended to constitute a “change in ownership or effective control”, or a “change in the ownership of a substantial portion of the Companyassets,” of the Company or the Bank as such terms are defined for purposes of Section 409A of the Internal Revenue Code and “Change in Control” as used herein shall be interpreted consistently therewith. Notwithstanding the foregoing, a Change in Control shall not be deemed to occur as a result of any transaction which merely changes the jurisdiction of incorporation of the Company or the Bank.
Appears in 5 contracts
Samples: Severance Compensation Agreement (CVB Financial Corp), Severance Compensation Agreement (CVB Financial Corp), Severance Compensation Agreement (CVB Financial Corp)
Change in Control. (a) For purposes of this Agreement, a “Change in Control means and includes each of the followingControl” will occur:
(iA) Upon the acquisitionacquisition by any individual, entity or group, including any Person (as defined in the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”)), of beneficial ownership (as defined in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, by any "person" or "group" of twenty (as those terms are defined in Sections 3(a)(9), 13(d20) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% percent or more of the combined voting power of the Company's then outstanding voting securitiescapital stock of Company that by its terms may be voted on all matters submitted to stockholders of Company generally (“Voting Stock”); provided, other thanhowever, that the following acquisitions shall not constitute a Change in Control:
1) Any acquisition directly from Company (Aexcluding any acquisition resulting from the exercise of a conversion or exchange privilege in respect of outstanding convertible or exchangeable securities unless such outstanding convertible or exchangeable securities were acquired directly from Company);
2) an Any acquisition by Company;
3) Any acquisition by an employee benefit plan (or related trust) sponsored or maintained by Company or any corporation controlled by Company; or
4) Any acquisition by any corporation pursuant to a trustee reorganization, merger or consolidation involving Company, if, immediately after such reorganization, merger or consolidation, each of the conditions described in clauses (1), (2) and (3) of subparagraph 3(a)(iii)(B) below shall be satisfied; and provided further that, for purposes of clause (2) immediately above, if (i) any Person (other fiduciary holding securities under than Company or any employee benefit plan (or related trust) sponsored or maintained by the Company or any person corporation controlled by the Company or by any employee benefit plan (or related trustCompany) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% twenty (20) percent or more of the combined voting power of the Company's then outstanding voting securities Voting Stock by reason of share acquisitions an acquisition of Voting Stock by the Company as described above Company, and (ii) such Person shall, after such share acquisitions acquisition by the Company, become the beneficial owner of any additional voting securities shares of the CompanyVoting Stock and such beneficial ownership is publicly announced, then such acquisition additional beneficial ownership shall constitute a Change in Control; or
(iiB) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) Upon the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, merger or business combination consolidation of Company, or (y) a sale sale, lease, exchange or other disposition transfer of all or substantially all of the assets of Company's assets ; excluding, however, any such reorganization, merger, consolidation, sale, lease, exchange or (zother transfer with respect to which, immediately after consummation of such transaction:
1) All or substantially all of the acquisition beneficial owners of assets or stock the Voting Stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities Company outstanding immediately before the prior to such transaction continuing continue to represent beneficially own, directly or indirectly (either by remaining outstanding or by being converted into voting securities of the Company or the person thatentity resulting from such transaction), as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company more than fifty (the Company or such person, the "Successor Entity")50) directly or indirectly, at least a majority percent of the combined voting power of the Successor Entity's outstanding voting securities of the entity resulting from such transaction (including, without limitation, Company or an entity which as a result of such transaction owns Company or all or substantially all of Company‘s property or assets, directly or indirectly) (the “Resulting Entity”) outstanding immediately after the such transaction, in substantially the same proportions relative to each other as their ownership immediately prior to such transaction; and
2) No Person (Bother than any Person that beneficially owned, immediately prior to such reorganization, merger, consolidation, sale or other disposition, directly or indirectly, Voting Stock representing twenty (20) after which no person percent or group more of the combined voting power of Company’s then outstanding securities) beneficially owns voting securities representing 25% owns, directly or indirectly, twenty (20) percent or more of the combined voting power of the Successor then outstanding securities of the Resulting Entity; and
3) At least a majority of the members of the board of directors of the entity resulting from such transaction were members of the board of directors of Company (the “Board”) at the time of the execution of the initial agreement or action of the Board authorizing such reorganization, merger, consolidation, sale or other disposition; or
(C) Upon the consummation of a plan of complete liquidation or dissolution of Company; or
(D) When the Initial Directors cease for any reason to constitute at least a majority of the Board. For this purpose, an “Initial Director” shall mean those individuals serving as the directors of Company immediately after Company ceased to be wholly-owned by Xxxx Xxx Corporation; provided, however, that no person any individual who becomes a director of Company at or group shall be treated after the first annual meeting of stockholders of Company whose election, or nomination for purposes election by the Company’s stockholders, was approved by the vote of this clause (B) as beneficially owning 25% or more of combined voting power at least a majority of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of Initial Directors then comprising the Board (or by the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control nominating committee of the Company Board, if such committee is comprised of Initial Directors and has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(bauthority) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred been an Initial Director; and provided further, that no individual shall be deemed to be an Initial Director if the following occur:
such individual initially was elected as a director of Company as a result of: (i1) The Company enters into a written agreement an actual or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.threatened solicitation
Appears in 5 contracts
Samples: Severance/Change in Control Agreement (Hanesbrands Inc.), Severance/Change in Control Agreement (Hanesbrands Inc.), Severance/Change in Control Agreement (Hanesbrands Inc.)
Change in Control. (a) Change in Control means and includes each of the following:
(i) the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the CompanyControl" shall be deemed to have occurred if the following occurif:
(i) The any one person, or more than one person acting as a group, acquires (or has acquired during the 12 month period ending on the date of the most recent acquisition) ownership of stock of the Company enters into a written agreement or letter the Bank possessing more than 50% of intent, the consummation of which would result in the occurrence of a Change in Control total voting power of the Company's or the Bank's stock; provided, however, it is expressly acknowledged by the Executive that this 2 provision shall not be applicable to any person who is, as of the date of this agreement, a Director of the Company or the Bank;
(ii) Any person (including a majority of the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control members of the Company's or the Bank's Board of Directors is replaced during any 12 month period by directors whose appointment or election is not endorsed by a majority of the members of the Company's or the Bank's board prior to the date of the appointment or election;
(iii) Any person (other than an employee benefit plan a merger or consolidation where the holders of the Bank's or the Company's voting stock immediately prior to the effective date of such merger or consolidation own less than 50% of the voting stock of the entity surviving such merger or consolidation.
(iv) any one person, or more than one person acting as a trustee group, acquires (or other fiduciary holding securities under an employee benefit plan has acquired during the twelve month period ending on the date of the Companymost recent acquisition by such person or persons) who assets from the Bank that have a total fair market value greater than 50% of the total fair market value of all of the Bank's assets immediately before the acquisition or acquisitions; provided, however, transfer of assets which otherwise would satisfy the requirements of this subsection (iv) will not be treated as a change in the ownership of such assets if the assets are transferred to;
(A) an entity, 50% or more of the total value or voting power of which is owned, directly or becomes indirectly by the beneficial ownerCompany or the Bank;
(B) a person, or more than one person acting as a group, that owns, directly or indirectly, of securities of the Company representing 9.550% or more of the Company's then total value or voting power of all the outstanding stock of the Company or the Bank; or
(C) an entity, at least 50% of the total value or voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities power is owned, directly or indirectly by an additional five percentage points a person who owns, directly or more thereby beneficially owning 14.5indirectly, 50% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes total value or voting power of this Agreement, a Potential Change in Control all the outstanding stock of the Company has occurredBank. You agree thatNot withstanding the foregoing, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control shall not be deemed to occur as a result of any transaction which changes the jurisdiction of incorporation of the CompanyCompany or the Bank.
Appears in 5 contracts
Samples: Severance Compensation Agreement (CVB Financial Corp), Severance Compensation Agreement (CVB Financial Corp), Severance Compensation Agreement (CVB Financial Corp)
Change in Control. (a) A "Change in Control means and includes each of Control" shall be deemed to have occurred if, prior to the following:Termination Date (as defined below):
(i) Any election has occurred of persons to the acquisitionBoard that causes at least one-half of the Board to consist of persons other than (x) persons who were members of the Board as of the date of this Agreement and (y) persons who were nominated for election by the Board as members of the Board at a time when more than one-half of the members of the Board consisted of persons who were members of the Board as of the date of this Agreement; provided, directly however, that any person nominated for election by the Board at a time when at least one-half of the members of the Board were persons described in clauses (x) and/or (y) or indirectlyby persons who were themselves nominated by such Board shall, for this purpose, be deemed to have been nominated by a Board composed of persons described in clause (x) (persons described or deemed described in clauses (x) and/or (y) are referred to herein as "Incumbent Directors"); or
(ii) The acquisition in one or more transactions, other than from the Company, by any "person" individual, entity or "group" group (as those terms are defined in Sections 3(a)(9), 13(dwithin the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act") and the rules thereunder)) of "beneficial ownership" ownership (as determined pursuant to within the meaning of Rule 13d-3 promulgated under the Exchange Act) of securities entitled a number of Company Voting Securities equal to vote generally in the election of directors ("voting securities") or greater than 35% of the Company that represent 25% or more of Voting Securities unless such acquisition has been designated by the combined voting power of the Company's then outstanding voting securities, other than
(A) Incumbent Directors as an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be constituting a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereofhereof; or
(iii) A liquidation or dissolution of the consummation by Company; or a reorganization, merger or consolidation of the Company (whether directly involving unless, following such reorganization, merger or consolidation, the Company or indirectly involving is the Company through one or more intermediaries) of (x) a merger, consolidation, surviving entity resulting from such reorganization, merger or business combination consolidation or (y) at least one-half of the Board of Directors of the entity resulting from such reorganization, merger or consolidation consists of Incumbent Directors; or a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company unless, following such sale or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectlydisposition, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee one-half of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of Directors of the Company has occurred pursuant to the above definition, and the date transferee consists of the occurrence of such Change in Control and any incidental matters relating theretoIncumbent Directors.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 5 contracts
Samples: Severance Agreement (Polaris Inc.), Severance Agreement (Polaris Industries Inc/Mn), Severance Agreement (Polaris Industries Inc/Mn)
Change in Control. (a) For purposes of this Agreement, “Change in Control means and includes each of the following:
Control” shall mean: (i) the acquisition, directly if any “person” or indirectly, by any "person" or "“group" (” as those terms are defined used in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act"”) and or any successors thereto, is or becomes the rules thereunder) of "“beneficial ownership" owner” (as determined pursuant to defined in Rule 13d-3 under the Exchange Act) Act or any successor thereto), directly or indirectly, of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25representing 50% or more of the combined voting power of the Company's ’s then outstanding voting securities, other than
(A) an provided, that the acquisition of additional securities by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by or group that owns 50% or more of the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an voting power prior to such acquisition of voting additional securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would shall not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During during any period of two consecutive years12-month period, individuals who, who at the beginning of such period, period constitute the Board together with and any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) directors whose election by the Board or nomination for election by the Company's stockholders ’s shareholders was approved by a vote of at least two-thirds a majority of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by shareholders of the Company (whether directly involving approve a merger or consolidation of the Company with any other corporation, other than a merger or indirectly involving the Company through one or more intermediaries) of consolidation (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of which would result in all or substantially all a portion of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities of the Company outstanding immediately before the transaction prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")surviving entity) directly or indirectly, at least a majority more than 50% of the combined voting power of the Successor Entity's outstanding voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (y) by which the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more corporate existence of the combined voting power Company is not affected and following which the Company’s chief executive officer and directors retain their positions with the Company (and constitute at least a majority of the Successor EntityBoard) and such merger or consolidation is consummated; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control shareholders of the Company has occurred pursuant to approve an agreement for the above definition, and sale or disposition by the date Company of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of all or substantially all the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement ’s assets and such sale or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who disposition is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Companyconsummated.
Appears in 5 contracts
Samples: Restricted Covenants, Severance & Change in Control Agreement (Patterson Companies, Inc.), Inducement, Severance & Change in Control Agreement (Patterson Companies, Inc.), Restrictive Covenants, Severance and Change in Control Agreement (Patterson Companies, Inc.)
Change in Control. (a) A Change in In Control means and includes each will be deemed to have occurred for purposes hereof, upon any one of the following:
following events following the consummation of the Company's initial public offering of equity securities under the Securities Act of 1933, as amended (an "IPO"): (i) any person (within the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined in meaning of Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")), other than the Company (including its subsidiaries, directors, and executive officers) and has become the rules thereunder) beneficial owner, within the meaning of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act, of fifty percent (50%) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of the Company's then outstanding Common Stock or equivalent in voting securities, other than
(A) an acquisition by a trustee power of any class or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition classes of the Company's outstanding securities by the Company which causes the Company's ordinarily entitled to vote in elections of directors ("voting securities beneficially owned by a person securities"); or group to represent 25% (ii) shares representing fifty percent (50%) or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions are purchased pursuant to a tender offer or exchange offer (other than an offer by the Company or its subsidiaries or affiliates); or (iii) as described above and shalla result of, after such share acquisitions by or in connection with, any tender offer or exchange offer, merger or other business combination, sale of assets, or contested election, or any combination of the foregoing transactions (a "Transaction"), the persons who were Directors of the Company before the Transaction shall cease to constitute a majority of the Board of the Company or of any successor to the Company, become ; or (iv) the beneficial owner Company is merged or consolidated with another corporation and as a result of any additional such merger or consolidation less than fifty percent (50%) of the outstanding voting securities of the surviving or resulting corporation shall then be owned in the aggregate by the former shareholders of the Company, then other than (A) any party to such acquisition merger or consolidation, or (B) any affiliates of any such party; or (v) the Company transfers more than fifty percent (50%) of its assets, or the last of a series of transfers results in the transfer of more than fifty percent (50%) of the assets of the Company, to another entity that is not wholly-owned by the Company or (vi) the Board, approves a resolution that for purposes of this Agreement a Change In Control has occurred. For purposes of Subsection (v), the determination of what constitutes fifty percent (50%) of the assets of the Company shall be made by the Board, as constituted immediately prior to the events that would constitute a Change in Control; or
In Control if fifty percent (ii50%) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entitywere transferred in connection with such events, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds its sole discretion. Notwithstanding anything to the business of the Company (the Company or such personcontrary contained in this Section 7.2, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in In Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall not be deemed to have occurred if for the following occur:
(i) The Company enters into a written agreement or letter of intentpurposes hereof, upon the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the CompanyIPO.
Appears in 5 contracts
Samples: Employment Agreement (U S Remodelers Inc), Employment Agreement (U S Remodelers Inc), Employment Agreement (U S Remodelers Inc)
Change in Control. (a) For purposes of this Agreement, Change in of Control means and includes each the occurrence of any of the followingfollowing events:
(i) the acquisition, directly The accumulation in any number of related or indirectly, unrelated transactions by any "person" or "group" person of beneficial ownership (as those terms are defined such term is used in Sections 3(a)(9)Rule 13d-3, 13(d) and 14(d) of promulgated under the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act") and the rules thereunder”)) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% 50 percent or more of the combined total voting power of the Company's then outstanding ’s voting securitiesstock; provided that for purposes of this subsection (a), other than
a Change in Control will not be deemed to have incurred if the accumulation of 50 percent or more of the voting power of the Company’s voting stock results from any acquisition of voting stock (Ai) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or Company, (ii) by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company’s subsidiaries, or
or (Ciii) an acquisition of voting securities by any person pursuant to a merger, consolidation, reorganization or other transaction described in clause (iiia “Business Combination”) below that would not be cause a Change in Control under clause subsection (iii)ii) below; Notwithstanding or
(ii) A consummation of a Business Combination, unless, immediately following that Business Combination, substantially all the foregoing, neither persons who were the beneficial owners of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition voting stock of the Company's securities by the Company which causes the Company's voting securities immediately prior to that Business Combination beneficially owned by a person own, directly or group to represent 25% or more indirectly, at least 50 percent of the combined voting power of the voting stock of the entity resulting from that Business Combination (including, without limitation, an entity that as a result of that transaction owns the Company's then outstanding voting securities; provided, howeveror all or substantially all of the Company assets, that if a person either directly or group shall become the beneficial owner of 25% through one or more subsidiaries) in substantially the same proportions relative to each other as the ownership, immediately prior to that Business Combination, of the combined voting power stock of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or;
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a A sale or other disposition of all or substantially all of the Company's assets or of the Company except pursuant to a Business Combination that would not cause a Change in Control under subsection (zii) the acquisition of assets or stock of another entity, in each case other above;
(iv) At any time less than a transaction
(A) which results in majority of the Company's voting securities outstanding immediately before members of the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities Board of Directors of the Company or any entity resulting from any Business Combination are Incumbent Board Members.
(v) Approval by the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business shareholders of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least of a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a complete liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, except pursuant to determine conclusively whether a Business Combination that would not cause a Change in Control under subsection (ii) above; or
(vi) Any other transaction or event that the Board of Directors of the Company has occurred pursuant to the above definition, and the date of the occurrence of such identifies as a Change in Control and any incidental matters relating theretofor purposes of this Agreement.
(bvii) For purposes of this Agreement, an “Incumbent Board Member” shall mean any individual who either is (a) a "Potential Change in Control member of the Company Board of Directors as of the Effective Date or (b) a member who becomes a member of the Company" shall be deemed ’s Board of Directors subsequent to have occurred if the following occur:
Effective Date of this Agreement, whose election or nomination by the Company’s shareholders, was approved by a vote of at least a majority of the then Incumbent Board Members (i) The Company enters into a written agreement either by specific vote or letter of intent, the consummation of which would result in the occurrence by approval of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities proxy statement of the Company representing 9.5% in which that person is named as a nominee for director, without objection to that nomination), but excluding, for that purpose, any individual whose initial assumption of office occurs as a result of an actual or more threatened election contest (within the meaning of Rule 14A-11 of the Company's then outstanding voting securities carrying the right to vote in elections of persons Exchange Act) with respect to the Board increases such beneficial ownership election or removal of such securities directors or other actual threatened solicitation of proxies or consents by an additional five percentage points or more thereby beneficially owning 14.5% or more on behalf of such securities; or
(iv) The Board adopts the person other than a resolution to the effect that, for board of directors. For purposes of this Agreement, a Potential Change in Control person means any individual, corporation, partnership, limited liability company, joint venture, incorporated or unincorporated association, joint-stock company, trusts, unincorporated organization or any other entity of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Companyany kind.
Appears in 5 contracts
Samples: Employment Agreement (PRGX Global, Inc.), Employment Agreement (PRGX Global, Inc.), Employment Agreement (PRGX Global, Inc.)
Change in Control. (a) For purposes of this Agreement, a “Change in Control means and includes each of the followingControl” will occur:
(iA) Upon the acquisitionacquisition by any individual, entity or group, including any Person (as defined in the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”)), of beneficial ownership (as defined in Rule 13d‑3 promulgated under the Exchange Act), directly or indirectly, by any "person" or "group" of twenty (as those terms are defined in Sections 3(a)(9), 13(d20) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% percent or more of the combined voting power of the Company's then outstanding voting securitiescapital stock of Company that by its terms may be voted on all matters submitted to stockholders of Company generally (“Voting Stock”); provided, other thanhowever, that the following acquisitions shall not constitute a Change in Control:
1) Any acquisition directly from Company (Aexcluding any acquisition resulting from the exercise of a conversion or exchange privilege in respect of outstanding convertible or exchangeable securities unless such outstanding convertible or exchangeable securities were acquired directly from Company);
2) an Any acquisition by Company;
3) Any acquisition by an employee benefit plan (or related trust) sponsored or maintained by Company or any corporation controlled by Company; or
4) Any acquisition by any corporation pursuant to a trustee reorganization, merger or consolidation involving Company, if, immediately after such reorganization, merger or consolidation, each of the conditions described in clauses (1), (2) and (3) of subparagraph 3(a)(iii)(B) below shall be satisfied; and provided further that, for purposes of clause (2) immediately above, if (i) any Person (other fiduciary holding securities under than Company or any employee benefit plan (or related trust) sponsored or maintained by the Company or any person corporation controlled by the Company or by any employee benefit plan (or related trustCompany) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% twenty (20) percent or more of the combined voting power of the Company's then outstanding voting securities Voting Stock by reason of share acquisitions an acquisition of Voting Stock by the Company as described above Company, and (ii) such Person shall, after such share acquisitions acquisition by the Company, become the beneficial owner of any additional voting securities shares of the CompanyVoting Stock and such beneficial ownership is publicly announced, then such acquisition additional beneficial ownership shall constitute a Change in Control; or
(iiB) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) Upon the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, merger or business combination consolidation of Company, or (y) a sale sale, lease, exchange or other disposition transfer of all or substantially all of the assets of Company's assets ; excluding, however, any such reorganization, merger, consolidation, sale, lease, exchange or (zother transfer with respect to which, immediately after consummation of such transaction:
1) All or substantially all of the acquisition beneficial owners of assets or stock the Voting Stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities Company outstanding immediately before the prior to such transaction continuing continue to represent beneficially own, directly or indirectly (either by remaining outstanding or by being converted into voting securities of the Company or the person thatentity resulting from such transaction), as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company more than fifty (the Company or such person, the "Successor Entity")50) directly or indirectly, at least a majority percent of the combined voting power of the Successor Entity's outstanding voting securities of the entity resulting from such transaction (including, without limitation, Company or an entity which as a result of such transaction owns Company or all or substantially all of Company's property or assets, directly or indirectly) (the “Resulting Entity”) outstanding immediately after the such transaction, in substantially the same proportions relative to each other as their ownership immediately prior to such transaction; and
2) No Person (Bother than any Person that beneficially owned, immediately prior to such reorganization, merger, consolidation, sale or other disposition, directly or indirectly, Voting Stock representing twenty (20) after which no person percent or group more of the combined voting power of Company's then outstanding securities) beneficially owns voting securities representing 25% owns, directly or indirectly, twenty (20) percent or more of the combined voting power of the Successor then outstanding securities of the Resulting Entity; and
3) At least a majority of the members of the board of directors of the entity resulting from such transaction were members of the board of directors of Company (the “Board”) at the time of the execution of the initial agreement or action of the Board authorizing such reorganization, merger, consolidation, sale or other disposition; or
(C) Upon the consummation of a plan of complete liquidation or dissolution of Company; or
(D) When the Initial Directors cease for any reason to constitute at least a majority of the Board. For this purpose, an “Initial Director” shall mean those individuals serving as the directors of Company as of the date of this Agreement; provided, however, that no person any individual who becomes a director of Company at or group shall be treated after the first annual meeting of stockholders of Company whose election, or nomination for purposes election by the Company’s stockholders, was approved by the vote of this clause (B) as beneficially owning 25% or more of combined voting power at least a majority of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of Initial Directors then comprising the Board (or by the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control nominating committee of the Company Board, if such committee is comprised of Initial Directors and has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(bauthority) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred been an Initial Director; and provided further, that no individual shall be deemed to be an Initial Director if the following occur:
such individual initially was elected as a director of Company as a result of: (i1) The Company enters into an actual or threatened solicitation by a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person Person (other than an employee benefit plan the Board) made for the purpose of opposing a solicitation by the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons Board with respect to the Board increases such beneficial ownership election or removal of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securitiesdirectors; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z2) any other actual or threatened solicitation of proxies or consents by or on behalf of any Person (other than the occurrence of a Change in Control of the CompanyBoard).
Appears in 5 contracts
Samples: Severance/Change in Control Agreement (Hanesbrands Inc.), Severance/Change in Control Agreement (Hanesbrands Inc.), Severance/Change in Control Agreement (Hanesbrands Inc.)
Change in Control. (a) For purposes of this Agreement, a "Change in Control means and includes each Control" shall mean the occurrence of one of the followingfollowing events:
(i) Xxxxxxx X. Xxxxxxx, Xxxxxxxxxx X. Xxxxxxx, their respective legal representatives, devisees, donees and heirs and any Trust for the acquisitionbenefit of either or both of Xxxxxxx X. Xxxxxxx and Xxxxxxxxxx X. Xxxxxxx and/or the issue of either of them (the "Xxxxxxx Family") individually or collectively no longer are the "beneficial owners" (as defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25representing more than 50% or more of the combined voting power of the Company's then outstanding voting securities, other than;
(Aii) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially approve, and the same proportions as their ownership Company consummates, a merger or consolidation of the stock of the CompanyCompany with any other corporation, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause other than (a): an acquisition of ) a merger or consolidation which would result in the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result surviving entity) more than 65% of the combined voting power of the voting securities of the Company (or such surviving entity) outstanding immediately after such merger or consolidation or (b) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction, controls, directly or indirectly, ) in which no "person" (as such term is used in Section 13(d) and 14(d) of the Exchange Act other than the Xxxxxxx Family) acquires more than 50% of the combined voting power of the Company's then outstanding securities; or
(iii) the stockholders of the Company approve a plan of complete liquidation of the Company or owns, directly an agreement for the sale or indirectly, disposition by the Company of all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for assets. For purposes of this clause (B) as beneficially owning 25% iii), the term "the sale or more of combined voting power of the Successor Entity solely as a result of the voting power held in disposition by the Company prior to the consummation of the transaction; or
(iv) all or substantially all of the Company's stockholders approve assets" shall mean a liquidation sale or dissolution other disposition transaction or series of related transactions (other than transactions related to the creation of a master limited partnership or royalty trust in which the Company continues its corporate existence), involving assets of the Company or of any direct or indirect subsidiary of the Company (including the stock of any direct or indirect subsidiary of the Company.
(v) The Human Resources Committee in which the value of the assets or stock being sold or otherwise disposed of (as measured by the purchase price being paid therefor or by such other method as the Board (determines is appropriate in a case where there is no readily ascertainable purchase price) constitutes more than two-thirds of the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control fair market value of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
Company" (b) as hereinafter defined). For purposes of this Agreementthe preceding sentence, a the "Potential Change in Control fair market value of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more aggregate market value of the Company's then outstanding voting securities carrying common stock (on a fully diluted basis) plus the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control aggregate market value of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control 's other outstanding equity securities. The aggregate market value of the Company, (y) 's equity securities shall be determined by multiplying the termination by you number of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control shares of the Company's common stock (on a fully diluted basis) outstanding on the date of the execution and delivery of a definitive agreement with respect to the transaction or series of related transactions (the "Transaction Date") by the average closing price of such security for the ten trading days immediately preceding the Transaction Date, or if not publicly traded, by such other method as the Board shall determine is appropriate.
Appears in 5 contracts
Samples: Employment Agreement (Venoco, Inc.), Employment Agreement (Venoco, Inc.), Employment Agreement (Venoco, Inc.)
Change in Control. A “Change in Control” shall be deemed to have occurred upon the occurrence of any one of the following events:
(a) Change in Control means and includes each of the following:
(i) the acquisition, directly or indirectly, by any "person" or "group" (“Person,” as those terms are defined such term is used in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 1934, as amended and in effect from time to time (the "“Exchange Act"”) (other than the Company, any of its subsidiaries, or any trustee, fiduciary or other person or entity holding securities under any employee benefit plan or trust of the Company or any of its subsidiaries), together with all “affiliates” and “associates” (as such terms are defined in Rule 12b-2 under the rules thereunderExchange Act) of "such person, shall become the “beneficial ownership" owner” (as determined pursuant to such term is defined in Rule 13d-3 under the Exchange Act) ), directly or indirectly, of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% representing 30 percent or more of the combined voting power of the Company's ’s then outstanding voting securities, other than
(A) securities having the right to vote in an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by election of the Company, or
’s Board of Directors (B“Voting Securities”) (in such case other than as a result of an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of from the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iiib) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, merger or business combination consolidation or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company in a single transaction or series of related transactions (a “Corporate Transaction”); excluding, however, a Corporate Transaction in which the person thatstockholders of the Company immediately prior to the Corporate Transaction, would, immediately after the Corporate Transaction, beneficially own (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, shares representing in the aggregate more than 50 percent of the voting shares of the corporation issuing cash or securities in the Corporate Transaction (or of its ultimate parent corporation, if any); or
(c) persons who, as of the date hereof, constitute the Company’s Board of Directors (the “Incumbent Directors”) cease for any reason, including, without limitation, as a result of the a tender offer, proxy contest, merger or similar transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, constitute at least a majority of the combined voting power Board, provided that any person becoming a director of the Successor Entity's outstanding voting securities immediately after Company subsequent to the transaction, and
date hereof shall be considered an Incumbent Director if such person’s election was approved by or such person was nominated for election by either (A) a vote of at least a majority of the Incumbent Directors or (B) after a vote of at least a majority of the Incumbent Directors who are members of a nominating committee comprised, in the majority, of Incumbent Directors; but provided further, that any such person whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of members of the Board of Directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board, including by reason of agreement intended to avoid or settle any such actual or threatened contest or solicitation, shall not be considered an Incumbent Director; or
(d) any other acquisition of the business of the Company in which no a majority of the Board votes in favor of a decision that a Change in Control has occurred within the meaning of this Agreement; or
(e) the approval by the Company’s stockholders of any plan or proposal for the liquidation or dissolution of the Company. Notwithstanding the foregoing, a “Change in Control” shall not be deemed to have occurred for purposes of the foregoing clause (a) solely as the result of an acquisition of securities by the Company that, by reducing the number of shares of Voting Securities outstanding, increases the proportionate number of shares of Voting Securities beneficially owned by any person or group beneficially owns voting securities representing 25% to 30 percent or more of the combined voting power of the Successor Entityall then outstanding Voting Securities; provided, however, that no if any person referred to in this sentence shall thereafter become the beneficial owner of any additional shares of Voting Securities (other than pursuant to a stock split, stock dividend, or group shall be treated for purposes similar transaction or as a result of this clause (Ban acquisition of securities directly from the Company) as and immediately thereafter beneficially owning 25% owns 30 percent or more of the combined voting power of the Successor Entity solely as all then outstanding Voting Securities, then a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a “Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" Control” shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company foregoing clause (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement agea), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 5 contracts
Samples: Change in Control Agreement (Citrix Systems Inc), Change in Control Agreement (Citrix Systems Inc), Change in Control Agreement (Citrix Systems Inc)
Change in Control. (a) For purposes of this Agreement, a “Change in Control Control” means and includes each of the following:
(i) the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes events, within the meaning of Code Section 409A(a)(2)(A)(v), occurring during the Term:
4.4.1 individuals who, as of the date of this clause Agreement, constitute the Board (a): an acquisition the “Incumbent Board”) cease for any reason to constitute at least a majority of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securitiesBoard; provided, however, that if a any person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than becoming a director designated by a person who shall have entered into an agreement with subsequent to the Company to effect a transaction described in clauses (i) or (iii) date of this Section) Agreement, whose election by the Board election, or nomination for election by the Company's stockholders ’s shareholders, was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of directors comprising the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Incumbent Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan election or nomination of an individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the directors of the Company, or a trustee other actual or threatened solicitation of proxies by or on behalf of an individual, entity or group other fiduciary holding securities under an employee benefit plan than the Board relating to the election of the directors of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right shall be deemed to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect thatbe, for purposes of this Agreement, a Potential Change member of the Incumbent Board; or
4.4.2 the date that any one person, or more than one person acting as a group (as defined in Control Treas. Regs. Section 1.409A-3), acquires ownership of stock of the Company has occurred. You agree that, subject to together with stock held by such person or group, constitutes more than fifty percent (50%) of the terms and conditions total fair market value or total voting power of this Agreementthe stock of the Company; or
4.4.3 the date any one person, or more than one person acting as a group (as defined in Treas. Regs. Section 1.409A-3), acquires (or has acquired during the event 12-month period ending on the date of a Potential Change in Control the most recent acquisition by such person or persons) ownership of stock of the Company possessing thirty percent (30%) or more of the total voting power of the stock of the Company, you will remain other than the acquisition by any person or group, which as of the date hereof has such ownership; or
4.4.4 the Company’s execution of an agreement for a merger or consolidation or other business combination involving the Company in which the employ Company is not the surviving corporation, or, if immediately following such merger or consolidation or other business combination, less than fifty percent (50%) of the surviving corporation’s outstanding voting stock is held by persons who are stockholders of the Company (immediately prior to such merger or consolidation or other business combination; or
4.4.5 the subsidiary thereof by which you are employed Company’s adoption of a plan of dissolution or liquidation, other than if the Company is in bankruptcy at the date time such Potential Change in Control occurs) until the earliest plan of (x) a date which dissolution or liquidation is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Companyadopted.
Appears in 5 contracts
Samples: Employment Agreement (Perma Fix Environmental Services Inc), Employment Agreement (Perma Fix Environmental Services Inc), Employment Agreement (Perma Fix Environmental Services Inc)
Change in Control. (i) In the event of a Change in Control, this Award shall be subject to the definitive agreement governing such Change in Control. Such agreement, without the Employee’s consent and notwithstanding any provision to the contrary in this Agreement or the Plan, must provide for one of the following: (a) the assumption of this Award by the surviving corporation or its parent; (b) the substitution by the surviving corporation or its parent of an award with substantially the same terms as this Award; or (c) the cancellation of this Award after payment to the Employee in Shares of an amount equal to the Restricted Stock Units subject to this Award at the time of the Change in Control means and includes each Control. In the event the definitive agreement does not provide for one of the following:
foregoing alternatives with respect to the treatment of this Award, this Award shall have the treatment specified in clause (ic) of the acquisitionpreceding sentence. The Committee may, directly or indirectlyin its sole discretion, by accelerate the vesting of this Award in connection with any "of the foregoing alternatives, notwithstanding any tax consequences to the Employee. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events: (a) any “person" or "group" ” (as those terms are defined such term is used in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (0000 Xxx) becomes the "Exchange Act") and the rules thereunder) of "“beneficial ownership" owner” (as determined pursuant to defined in Rule 13d-3 under of the Exchange 1934 Act) ), directly or indirectly, of securities entitled to vote generally in of the election of directors Company representing more than fifty percent ("voting securities"50%) of the Company that represent 25% or more of the combined total voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled represented by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's ’s then outstanding voting securities; provided, however, that if a person or group shall become (b) the beneficial owner of 25% or more consummation of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions sale or disposition by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets ’s assets; (c) a change in the composition of the Board occurring within a one-year period, as a result of which fewer than a majority of the directors are Incumbent Directors; or (zd) the acquisition consummation of assets a merger or stock consolidation of another entitythe Company with any other corporation, in each case other than a transaction
(A) merger or consolidation which results would result in the Company's voting securities of the Company outstanding immediately before the transaction prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company surviving entity or the person that, as a result its parent) at least fifty percent (50%) of the transaction, controls, directly or indirectly, total voting power represented by the Company or owns, directly or indirectly, all or substantially all voting securities of the Company's assets or otherwise succeeds to the business of the Company (the Company or such personsurviving entity or its parent outstanding immediately after such merger or consolidation. “Incumbent Directors” means directors who either (A) are Directors as of the effective date of the Plan, or (B) are elected, or nominated for election, to the "Successor Entity")) directly or indirectly, Board with the affirmative votes of at least a majority of the combined voting power Directors at the time of the Successor Entity's outstanding voting securities immediately after the transaction, and
such election or nomination (B) after which no person but will not include an individual whose election or group beneficially owns voting securities representing 25% nomination is in connection with an actual or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior threatened proxy contest relating to the consummation election of the transaction; or
(iv) directors to the Company's stockholders approve a liquidation or dissolution of the Company).
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 5 contracts
Samples: Restricted Stock Unit Agreement (Polycom Inc), Restricted Stock Unit Agreement (Polycom Inc), Restricted Stock Unit Agreement (Polycom Inc)
Change in Control. (a) Change in Control means and includes each of the following:
(i) the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the CompanyControl" shall be deemed to have occurred if the following occurif:
(i) The any one person, or more than one person acting as a group, acquires (or has acquired during the 12 month period ending on the date of the most recent acquisition) ownership of stock of the Company enters into a written agreement or letter the Bank possessing more than 50% of intent, the consummation of which would result in the occurrence of a Change in Control total voting power of the Company's or the Bank's stock; provided, however, it is expressly acknowledged by the Executive that this provision shall not be applicable to any person who is, as of the date of this Agreement, a Director of the Company or the Bank;
(ii) Any person (including a majority of the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control members of the Company's or the Bank's Board of Directors is replaced during any 12 month period by directors whose appointment for election is not endorsed by a majority of the members of the Company's or the Bank's board prior to the date of the appointment or election;
(iii) Any person (other than an employee benefit plan a merger or consolidation where the holders of the Bank's or the Company's voting stock immediately prior to the effective date of such merger or consolidation own less than 50% of the voting stock of the entity surviving such merger or consolidation;
(iv) any one person, or more than one person acting as a trustee group, acquired (or other fiduciary holding securities under an employee benefit plan has acquired during the twelve month period ending on the date of the Companymost recent acquisition by such person or persons) who assets from the Bank that have a total fair market value greater than 50% of the total fair market value of all of the Bank's assets immediately before the acquisition or acquisitions; provided, however, transfer of assets which otherwise would satisfy the requirements of this subsection (iv) will not be treated as a change in the ownership of such assets if the assets are transferred to: (A) an entity, 50% or more of the total value or voting power of which is owned, directly or becomes indirectly by the beneficial ownerCompany or the Bank; (B) a person, or more than one person acting as a group, that owns, directly or indirectly, of securities of the Company representing 9.550% or more of the Company's then total value or voting power of all the outstanding stock of the Company or the Bank; or (C) an entity, at least 50% of the total value or voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities power is owned, directly or indirectly by an additional five percentage points a person who owns, directly or more thereby beneficially owning 14.5indirectly, 50% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes total value or voting power of this Agreement, a Potential Change in Control all the outstanding stock of the Company has occurredBank. You agree thatNot withstanding the foregoing, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control shall not be deemed to occur as a result of any transaction which changes the jurisdiction of incorporation of the CompanyCompany or the Bank.
Appears in 5 contracts
Samples: Severance Compensation Agreement (CVB Financial Corp), Severance Compensation Agreement (CVB Financial Corp), Severance Compensation Agreement (CVB Financial Corp)
Change in Control. (i) In the event of a Change in Control, this award shall be subject to the definitive agreement governing such Change in Control. Such agreement, without the Employee’s consent and notwithstanding any provision to the contrary in this Agreement or the Plan, must provide for one of the following: (a) the assumption of this award by the surviving corporation or its parent; (b) the substitution by the surviving corporation or its parent of an award with substantially the same terms as this award; or (c) the cancellation of this award after payment to the Employee in Shares of an amount equal to the Performance Shares subject to this award at the time of the Change in Control means and includes each Control. In the event the definitive agreement does not provide for one of the following:
foregoing alternatives with respect to the treatment of this award, this award shall have the treatment specified in clause (ic) of the acquisitionpreceding sentence. The Committee may, directly or indirectlyin its sole discretion, by accelerate the vesting of this award in connection with any "of the foregoing alternatives. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events: (a) any “person" or "group" ” (as those terms are defined such term is used in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (0000 Xxx) becomes the "Exchange Act") and the rules thereunder) of "“beneficial ownership" owner” (as determined pursuant to defined in Rule 13d-3 under of the Exchange 1934 Act) ), directly or indirectly, of securities entitled to vote generally in of the election of directors Company representing more than fifty percent ("voting securities"50%) of the Company that represent 25% or more of the combined total voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled represented by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's ’s then outstanding voting securities; provided, however, that if a person or group shall become (b) the beneficial owner of 25% or more consummation of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions sale or disposition by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets ’s assets; (c) a change in the composition of the Board occurring within a one-year period, as a result of which fewer than a majority of the directors are Incumbent Directors; or (zd) the acquisition consummation of assets a merger or stock consolidation of another entitythe Company with any other corporation, in each case other than a transaction
(A) merger or consolidation which results would result in the Company's voting securities of the Company outstanding immediately before the transaction prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company surviving entity or the person that, as a result its parent) at least fifty percent (50%) of the transaction, controls, directly or indirectly, total voting power represented by the Company or owns, directly or indirectly, all or substantially all voting securities of the Company's assets or otherwise succeeds to the business of the Company (the Company or such personsurviving entity or its parent outstanding immediately after such merger or consolidation. “Incumbent Directors” means directors who either (A) are Directors as of the effective date of the Plan, or (B) are elected, or nominated for election, to the "Successor Entity")) directly or indirectly, Board with the affirmative votes of at least a majority of the combined voting power Directors at the time of such election or nomination (but will not include an individual whose election or nomination is in connection with an actual or threatened proxy contest relating to the Successor Entity's outstanding voting securities immediately after election of directors to the transactionCompany). Notwithstanding the foregoing, and
(B) after which no person or group beneficially owns voting securities representing 25% or more if the Employee is a party to a change of control agreement with the combined voting power Company, the definition of the Successor Entity; provided, however, that no person or group shall be treated for purposes “change of this clause (B) control” as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held defined in the Company prior to the consummation change of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to control agreement will supersede the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 4 contracts
Samples: Performance Share Agreement (Polycom Inc), Performance Share Agreement (Polycom Inc), Officer Performance Share Agreement (Polycom Inc)
Change in Control. (a) A “Change in Control means and includes each Control” shall be deemed to have occurred in any one of the followingfollowing events:
(i) the acquisition, directly or indirectly, by any "“person" or "group" (,” as those terms are defined such term is used in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange “Act"”) and (other than the rules thereunder) of "beneficial ownership" Company, Summit Properties Partnership, L.P. (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power together with any other subsidiaries of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee the “Subsidiaries”), or any trustee, fiduciary or other fiduciary person or entity holding securities under any employee benefit plan (or related trust) sponsored or maintained by trust of the Company or any person controlled by of its Subsidiaries), together with all “affiliates” and “associates” (as such terms are defined in Rule 12b-2 under the Company or by any employee benefit plan (or related trustAct) sponsored or maintained by the Company or any person controlled by the Companyof such person, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the “beneficial owner” (as such term is defined in Rule 13d-3 under the Act), directly or indirectly, of securities of the Company representing 9.540% or more of either (A) the combined voting power of the Company's ’s then outstanding voting securities carrying having the right to vote in elections an election of persons to the Board increases (“Voting Securities”) or (B) the then outstanding shares of stock of the Company (“Stock”), in either such beneficial ownership case other than as a result of such an acquisition of securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securitiesdirectly from the Company; or
(ivii) The persons who, as of the date hereof, constitute the Board adopts (the “Incumbent Directors”) cease for any reason, including, without limitation, as a resolution result of a tender offer, proxy contest, merger or similar transaction, to constitute at least a majority of the Board, provided that any person becoming a director of the Company subsequent to the effect thatdate hereof whose election or nomination for election was approved by a vote of at least a majority of the Incumbent Directors shall, for purposes of this Agreement, be considered an Incumbent Director; or
(iii) the consummation of a Potential Change in Control consolidation or merger of the Company has occurred. You agree that, subject to or any subsidiary where the terms and conditions of this Agreement, in the event of a Potential Change in Control shareholders of the Company, you will remain immediately prior to the consolidation or merger, would not, immediately after the consolidation or merger, beneficially own (as such term is defined in Rule 13d-3 under the Act), directly or indirectly, shares representing in the employ aggregate 50% of the voting shares of the corporation issuing cash or securities in the consolidation or merger (or of its ultimate parent corporation, if any), or the consummation of any sale, lease, exchange or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the assets of the Company; or
(iv) the stockholders of the Company shall approve any plan or proposal for the liquidation or dissolution of the Company. Notwithstanding the foregoing, a “Change in Control” shall not be deemed to have occurred for purposes of the foregoing clause (i) solely as the result of an acquisition of securities by the Company which, by reducing the number of shares of Voting Securities outstanding, increases the proportionate number of shares of Voting Securities beneficially owned by any person to 40% or more of the subsidiary thereof by which you are employed at combined voting power of all then outstanding Voting Securities; provided, however, that if any person referred to in this sentence shall thereafter become the date such Potential beneficial owner of any additional shares of Voting Securities (other than pursuant to a stock split, stock dividend, or similar transaction or as a result of an acquisition of securities directly from the Company) and immediately thereafter beneficially owns 40% or more of the combined voting power of all then outstanding Voting Securities, then a “Change in Control” shall be deemed to have occurred for purposes of the foregoing clause (i).
(b) For purposes of determining whether a Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control has occurred, all outstanding options, warrants and other convertible securities that are then exchangeable or convertible into Voting Securities of the Company, (y) the termination by you including, without limitation, all partnership units of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of deathany Subsidiary that are convertible into, or (z) the occurrence of a Change in Control under certain circumstances redeemable for, Voting Securities of the Company at the option of the holder or the Company, shall be deemed to have been converted into the applicable number of shares of Voting Securities of the Company immediately prior to making such determination.
Appears in 4 contracts
Samples: Retention Bonus Agreement (Summit Properties Inc), Retention Bonus Agreement (Summit Properties Inc), Retention Bonus Agreement (Summit Properties Inc)
Change in Control. (a) For purposes of this Agreement, a “Change in Control means and includes each of the followingControl” will occur:
A. Upon the acquisition by any individual, entity or group, including any Person (i) as defined in the acquisitionUnited States Securities Exchange Act of 1934, as amended (the “Exchange Act”)), of beneficial ownership (as defined in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, by any "person" or "group" of twenty (as those terms are defined in Sections 3(a)(9), 13(d20) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% percent or more of the combined voting power of the Company's then outstanding voting securitiescapital stock of Company that by its terms may be voted on all matters submitted to stockholders of Company generally (“Voting Stock”); provided, other thanhowever, that the following acquisitions shall not constitute a Change in Control:
1. Any acquisition directly from Company (A) an excluding any acquisition resulting from the exercise of a conversion or exchange privilege in respect of outstanding convertible or exchangeable securities unless such outstanding convertible or exchangeable securities were acquired directly from Company);
2. Any acquisition by Company;
3. Any acquisition by an employee benefit plan (or related trust) sponsored or maintained by Company or any corporation controlled by Company; or
4. Any acquisition by any corporation pursuant to a trustee reorganization, merger or consolidation involving Company, if, immediately after such reorganization, merger or consolidation, each of the conditions described in clauses (1), (2) and (3) of subparagraph 3(a)(iii)(B) below shall be satisfied; and provided further that, for purposes of clause (2) immediately above, if (i) any Person (other fiduciary holding securities under than Company or any employee benefit plan (or related trust) sponsored or maintained by the Company or any person corporation controlled by the Company or by any employee benefit plan (or related trustCompany) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% twenty (20) percent or more of the combined voting power of the Company's then outstanding voting securities Voting Stock by reason of share acquisitions an acquisition of Voting Stock by the Company as described above Company, and (ii) such Person shall, after such share acquisitions acquisition by the Company, become the beneficial owner of any additional voting securities shares of the CompanyVoting Stock and such beneficial ownership is publicly announced, then such acquisition additional beneficial ownership shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) B. Upon the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, merger or business combination consolidation of Company, or (y) a sale sale, lease, exchange or other disposition transfer of all or substantially all of the assets of Company's assets ; excluding, however, any such reorganization, merger, consolidation, sale, lease, exchange or (z) other transfer with respect to which, immediately after consummation of such transaction:
1. All or substantially all of the acquisition beneficial owners of assets or stock the Voting Stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities Company outstanding immediately before the prior to such transaction continuing continue to represent beneficially own, directly or indirectly (either by remaining outstanding or by being converted into voting securities of the Company or the person thatentity resulting from such transaction), as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company more than fifty (the Company or such person, the "Successor Entity")50) directly or indirectly, at least a majority percent of the combined voting power of the Successor Entity's outstanding voting securities of the entity resulting from such transaction (including, without limitation, Company or an entity which as a result of such transaction owns Company or all or substantially all of Company’s property or assets, directly or indirectly) (the “Resulting Entity ”) outstanding immediately after the such transaction, in substantially the same proportions relative to each other as their ownership immediately prior to such transaction; and
2. No Person (Bother than any Person that beneficially owned, immediately prior to such reorganization, merger, consolidation, sale or other disposition, directly or indirectly, Voting Stock representing twenty (20) after which no person percent or group more of the combined voting power of Company’s then outstanding securities) beneficially owns voting securities representing 25% owns, directly or indirectly, twenty (20) percent or more of the combined voting power of the Successor then outstanding securities of the Resulting Entity; and
3. At least a majority of the members of the board of directors of the entity resulting from such transaction were members of the board of directors of Company (the “Board ”) at the time of the execution of the initial agreement or action of the Board authorizing such reorganization, merger, consolidation, sale or other disposition; or
C. Upon the consummation of a plan of complete liquidation or dissolution of Company; or
D. When the Initial Directors cease for any reason to constitute at least a majority of the Board. For this purpose, an “Initial Director” shall mean those individuals serving as the directors of Company as of the date of this Agreement; provided, however, that no person any individual who becomes a director of Company at or group shall be treated for purposes after the first annual meeting of stockholders of Company following the date of this clause (B) as beneficially owning 25% Agreement whose election, or more nomination for election by Company’s stockholders, was approved by the vote of combined voting power at least a majority of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of Initial Directors then comprising the Board (or by the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control nominating committee of the Company Board, if such committee is comprised of Initial Directors and has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(bauthority) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred been an Initial Director; and provided further, that no individual shall be deemed to be an Initial Director if the following occur:
such individual initially was elected as a director of Company as a result of: (i1) The Company enters into an actual or threatened solicitation by a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person Person (other than an employee benefit plan the Board) made for the purpose of opposing a solicitation by the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons Board with respect to the Board increases such beneficial ownership election or removal of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securitiesdirectors; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z2) any other actual or threatened solicitation of proxies or consents by or on behalf of any Person (other than the occurrence of a Change in Control of the CompanyBoard).
Appears in 4 contracts
Samples: Severance/Change in Control Agreement (Hanesbrands Inc.), Severance/Change in Control Agreement (Hanesbrands Inc.), Severance/Change in Control Agreement (Hanesbrands Inc.)
Change in Control. (i) In the event of a Change in Control, this award shall be subject to the definitive agreement governing such Change in Control. Such agreement, without the Employee’s consent and notwithstanding any provision to the contrary in this Agreement or the Plan, must provide for one of the following: (a) the assumption of this award by the surviving corporation or its parent; (b) the substitution by the surviving corporation or its parent of an award with substantially the same terms as this award; or (c) the cancellation of this award after payment to the Employee in Shares of an amount equal to the Performance Shares subject to this award at the time of the Change in Control means and includes each Control. In the event the definitive agreement does not provide for one of the following:
foregoing alternatives with respect to the treatment of this award, this award shall have the treatment specified in clause (ic) of the acquisitionpreceding sentence. The Committee may, directly or indirectlyin its sole discretion, by accelerate the vesting of this award in connection with any "of the foregoing alternatives. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events: (a) any “person" or "group" ” (as those terms are defined such term is used in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (0000 Xxx) becomes the "Exchange Act") and the rules thereunder) of "“beneficial ownership" owner” (as determined pursuant to defined in Rule 13d-3 under of the Exchange 1934 Act) ), directly or indirectly, of securities entitled to vote generally in of the election of directors Company representing more than fifty percent ("voting securities"50%) of the Company that represent 25% or more of the combined total voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled represented by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's ’s then outstanding voting securities; provided, however, that if a person or group shall become (b) the beneficial owner of 25% or more consummation of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions sale or disposition by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets ’s assets; (c) a change in the composition of the Board occurring within a one-year period, as a result of which fewer than a majority of the directors are Incumbent Directors; or (zd) the acquisition consummation of assets a merger or stock consolidation of another entitythe Company with any other corporation, in each case other than a transaction
(A) merger or consolidation which results would result in the Company's voting securities of the Company outstanding immediately before the transaction prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company surviving entity or the person that, as a result its parent) at least fifty percent (50%) of the transaction, controls, directly or indirectly, total voting power represented by the Company or owns, directly or indirectly, all or substantially all voting securities of the Company's assets or otherwise succeeds to the business of the Company (the Company or such personsurviving entity or its parent outstanding immediately after such merger or consolidation. “Incumbent Directors” means directors who either (A) are Directors as of the effective date of the Plan, or (B) are elected, or nominated for election, to the "Successor Entity")) directly or indirectly, Board with the affirmative votes of at least a majority of the combined voting power Directors at the time of the Successor Entity's outstanding voting securities immediately after the transaction, and
such election or nomination (B) after which no person but will not include an individual whose election or group beneficially owns voting securities representing 25% nomination is in connection with an actual or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior threatened proxy contest relating to the consummation election of the transaction; or
(iv) directors to the Company's stockholders approve a liquidation or dissolution of the Company).
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 4 contracts
Samples: Performance Share Agreement (Polycom Inc), Performance Share Agreement (Polycom Inc), Performance Share Agreement (Polycom Inc)
Change in Control. (aNotwithstanding Sections 3 and 4(a) Change in Control means and includes each of above to the following:
(i) the acquisitioncontrary, directly or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") if Participant is an employee of the Company that represent 25% or more one of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company its Subsidiaries or a corporation owned, directly or indirectly by the stockholders non-employee director of the Company in substantially the same proportions as their ownership of the stock date of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a “Change in Control Date”), then as of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control Date all unvested Restricted Shares shall immediately vest; all restrictions on transfer shall lapse and such Restricted Shares will become fully transferable under this Agreement and the Plan, subject only to such further limitations on transfer, if any, as may exist under applicable law or any incidental matters relating thereto.
(b) other agreement binding upon Participant. For purposes of this Agreement, a "Potential “Change in Control” shall be consistent with regulations issued under Section 409A of the Code and the Treasury regulations issued thereunder and shall mean the occurrence of a “Change in the Ownership of the Company,” a “Change in Effective Control of the Company" shall be deemed ,” or a “Change in the Ownership of a Substantial Portion of the Company’s Assets.” A “Change in the Ownership of the Company” means the acquisition by any one person, or more than one person acting as a group, of the outstanding and issued Shares that, together with Shares held by such person or group, constitutes more than 50 percent of the total voting power of the Shares (however, if any one person, or more than one person acting as a group, is considered to have occurred if own more than 50 percent of the following occur:
(i) The Company enters into a written agreement or letter total voting power of intentthe Shares, the consummation acquisition of which would result in additional Shares by the occurrence of same person or group shall not constitute a Change in the Ownership of the Company). A “Change in Effective Control of the Company;
” shall occur if either (iii) Any any one person, or more than one person acting as a group, acquires (including or has acquired during the Company12 month period ending on the date of the most recent acquisition by such person or persons) publicly announces an intention to take ownership of Shares possessing 35 percent or to consider taking actions which more of the total voting power of the Shares (however, if consummated would a person, or more than one person acting as a group owns 35 percent of the total fair market value or total voting power of the Shares, the acquisition of additional Shares by such person or group shall not constitute a Change in Effective Control of the Company;
); or (iiiii) Any a majority of members of the Company’s board of directors is replaced during any 12 month period by directors whose appointment or election is not endorsed by a majority of the members of the Company’s board of directors prior to the date of the appointment or election. A “Change in the Ownership of a Substantial Portion of the Company’s Assets” occurs when any one person, or more than one person acting as a group, acquires (other than an employee benefit plan or has acquired during the 12 month period ending on the date of the most recent acquisition by such person or persons) assets from the Company that have a total gross fair market value (“gross fair market value” means the value of the assets of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan the value of the Companyassets being disposed of, determined without regard to any liabilities associated with such assets) who is equal to or becomes more than 40 percent of the beneficial owner, directly or indirectly, total gross fair market value of securities all of the assets of the Company representing 9.5% immediately prior to such acquisition or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for acquisitions. For purposes of this Agreement, the term “acting as a Potential Change group” shall have the same meaning as defined in Control Section 409A of the Code and the Treasury regulations issued thereunder. Notwithstanding the foregoing, in no event shall any acquisition of Shares or other securities of the Company has occurred. You agree thatby White Deer Energy L.P. or any of its affiliates, subject to whether occurring before or after the terms and conditions date of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of constitute a Change in Control of the CompanyControl.
Appears in 4 contracts
Samples: Restricted Share Award Agreement (PostRock Energy Corp), Restricted Share Award Agreement (PostRock Energy Corp), Restricted Share Award Agreement (PostRock Energy Corp)
Change in Control. (a) For purposes of this Option Agreement, unless otherwise defined in an agreement between the Company and the Optionee, a Change in Control means and includes each of the followingshall be deemed to have occurred if:
(i) a tender offer (or series of related offers) shall be made and consummated for the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) ownership of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 2550% or more of the combined outstanding voting power securities of the Company's then , unless as a result of such tender offer more than 50% of the outstanding voting securities, other than
(A) an acquisition by a trustee securities of the surviving or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by resulting corporation shall be owned in the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly aggregate by the stockholders of the Company in substantially the same proportions (as their ownership of the stock time immediately prior to the commencement of such offer), any employee benefit plan of the CompanyCompany or its subsidiaries, orand their affiliates;
(Cii) an acquisition the Company shall be merged or consolidated with another corporation, unless as a result of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither such merger or consolidation more than 50% of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition surviving or resulting corporation shall constitute a Change be owned in Control; or
(ii) During any period the aggregate by the stockholders of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds as of the directors then still in office who either were directors at the beginning time immediately prior to such transaction), any employee benefit plan of the two year period Company or whose election or nomination for election was previously so approvedits subsidiaries, cease for any reason to constitute a majority thereof; orand their affiliates;
(iii) the consummation Company shall sell substantially all of its assets to another corporation that is not wholly owned by the Company, unless as a result of such sale more than 50% of such assets shall be owned in the aggregate by the stockholders of the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all as of the Company's assets or (z) the acquisition of assets or stock of another entitytime immediately prior to such transaction), in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities any employee benefit plan of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transactionits subsidiaries and their affiliates; or
(iv) the Company's stockholders approve a liquidation person (as defined below) shall acquire 50% or dissolution more of the Companyoutstanding voting securities of the Company (whether directly, indirectly, beneficially or of record), unless as a result of such acquisition more than 50% of the outstanding voting securities of the surviving or resulting corporation shall be owned in the aggregate by the stockholders of the Company (as of the time immediately prior to the first acquisition of such securities by such person), any employee benefit plan of the Company or its subsidiaries, and their affiliates.
(vb) The Human Resources Committee of If, at any time, the Board (the "Committee") Company shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether effect a Change in Control of the Company has occurred pursuant to the above definitiontransaction, and then, on the date of the occurrence of such Change in Control and any incidental matters relating theretotransaction, the Option shall immediately vest.
(bc) For purposes of this AgreementNotwithstanding the foregoing, a "Potential if Change in Control of is defined in an agreement between the Company" shall be deemed Company and the Optionee, then, with respect to have occurred if such Optionee and the following occur:
(i) The Company enters into a written agreement or letter of intentOption, the consummation of which would result in the occurrence of a Change in Control of shall have the Company;
(ii) Any person (including the Company) publicly announces an intention meaning ascribed to take or to consider taking actions which if consummated would constitute a Change it in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Companyagreement.
Appears in 4 contracts
Samples: Non Qualified Stock Option Agreement (Marathon Patent Group, Inc.), Nonqualified Stock Option Agreement (Bitcoin Shop Inc.), Nonqualified Stock Option Agreement (Bitcoin Shop Inc.)
Change in Control. (a) For purposes of this Agreement, a "Change in Control means and includes each Control" shall have occurred if any of the followingfollowing events shall occur:
(i) the acquisitionCompany is merged, directly consolidated or indirectly, by any "person" reorganized into or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee with another corporation or other fiduciary holding securities under legal person in any employee benefit plan (transaction or series of related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) transactions (other than a director designated by a person who shall have entered into an agreement with transaction to which only the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through and one or more intermediariesof its subsidiaries are parties) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, and as a result of the transactionsuch merger, controls, directly consolidation or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least reorganization less than a majority of the combined voting power of the Successor Entity's then-outstanding voting securities of the surviving entity or person immediately after such transaction or series of related transactions are held in the aggregate by persons or entities who were holders of voting securities of the Company immediately prior to such transaction, and;
(Bii) after the Company sells all or substantially all of its assets to any other corporation or other legal person in any sale or series of related sales (other than a transaction to which no person or group beneficially owns voting securities representing 25% only the Company and one or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transactionits subsidiaries are parties); or
(iviii) any person, corporation or group of associated persons acting in concert within the Company's stockholders approve meaning of Section 13(d)(3) or 4(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), excluding, for this purpose, the Company or its subsidiaries, or any employee benefit plan of the Company or its subsidiaries, becomes a liquidation direct or dissolution indirect beneficial owner of shares of stock of the Company (within the meaning of Rule 13d-3 promulgated under the Exchange Act) representing an aggregate of more than 50% of the votes then entitled to be cast at an election of directors of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occurif:
(i) The the Company enters into a written agreement or letter of intentan agreement, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 4 contracts
Samples: Employment Agreement (Covenant Bancorp Inc), Employment Agreement (Covenant Bancorp Inc), Employment Agreement (Covenant Bancorp Inc)
Change in Control. (aA) No benefits shall be payable hereunder unless there shall have been a Change in Control means and includes each of the followingCompany, as set forth below. For purposes of this Agreement a “Change in Control” of the Company shall mean the occurrence of any one or more of the following events:
(i) the acquisitionCompany shall (1) merge or consolidate with or into another corporation or entity or enter into a share exchange between the Company or stockholders of the Company and another individual, directly corporation or indirectlyother entity and as a result of such merger, consolidation or share exchange less than fifty percent (50%) of the outstanding voting securities of the surviving or resulting corporation or entity shall then be owned in the aggregate by the former stockholders of the Company; or (2) sell, lease, exchange or otherwise dispose of all or substantially all of the Company’s property and assets in one transaction or a series of related transactions to one or more individuals, corporations or other entities that are not subsidiaries of the Company, assuming that if consummation of such transaction is subject, at the time of such approval by stockholders, to the consent of any "government or governmental agency, such consent by the government or governmental agency is obtained (either explicitly or implicitly by consummation of the transaction);
(ii) the stockholders of the Company adopt a plan of complete liquidation of the Company;
(iii) any “person" or "group" ” (as those terms are defined such term is used in Sections 3(a)(9), 13(d) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act"”)) and (other than the rules thereunder) Employee, the Company, any of "beneficial ownership" (as determined the Company’s subsidiaries, any employee benefit plan of the Company and/or one or more of its subsidiaries or any person or entity organized, appointed or established pursuant to the terms of any such employee benefit plan) becomes the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of voting securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% representing thirty percent (30%) or more of the combined voting power total number of votes eligible to be cast at any election of directors of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that no Change in Control shall be deemed to have occurred under this subparagraph (iii) if such "person" becomes a person or group shall become the beneficial owner of 25% or more of the combined voting power holder of the Company's then outstanding voting securities by reason of share acquisitions in one or more transactions initiated or pursued by the Company as described above and shall, unless after such share acquisitions by transaction(s) less than fifty percent (50%) of the Company, become the beneficial owner of any additional outstanding voting securities of the Company shall be owned in the aggregate by the former stockholders of the Company, then such acquisition shall constitute a Change in Control; or
(iiiv) During as a result of, or in connection with, any period of two consecutive yearstender offer or exchange offer, individuals whoshare exchange, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidationconsolidation or other business combination, reorganizationsale, or business combination or (y) a sale lease, exchange or other disposition of all or substantially all of the Company's assets ’s assets, a contested election, or any combination of the foregoing transactions, the persons who are directors of the Company on the date hereof (zthe “Incumbent Board”) shall cease to constitute a majority of the acquisition Board of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities Directors of the Company or any successor to the Company; provided that any person that, as becoming a result director subsequent to the date hereof whose election or nomination for election by the Company’s stockholders was approved by a vote of at least three-quarters (3/4) of the transaction, controls, directly directors comprising the Incumbent Board (either by a specific vote or indirectly, the Company or owns, directly or indirectly, all or substantially all by approval of the Company's assets or otherwise succeeds to the business a proxy statement of the Company (the Company or in which such personperson is named as a nominee for director without any objection to such nomination) shall be, the "Successor Entity")) directly or indirectlyfor purposes herein, at least considered as though such person were a majority member of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, andIncumbent Board.
(B) after which no person or group beneficially owns voting securities representing 25% or more In exchange for the benefits under this Agreement, you agree that, subject to the terms and conditions herein, in the event of a potential Change in Control of the combined voting power Company occurring after the date hereof, you will not voluntarily terminate your employment with the Company and its subsidiaries until the earlier of (i) the date which is six months after the occurrence of such potential Change in Control of the Successor Entity; provided, however, that no person Company or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(ivii) the Company's stockholders approve a liquidation or dissolution occurrence of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Company. If more than one potential Change in Control and any incidental matters relating thereto.
(b) occurs during the term of this Agreement, the provisions of the preceding sentence shall be applicable to each potential Change in Control occurring prior to an actual Change in Control. For the purposes of this Agreement, a "Potential potential Change in Control Control" of the Company" Company shall be deemed to have occurred if the following occur:
if: (i) The the Company enters into a written agreement or letter of intentan agreement, the consummation of which would result in the occurrence of a Change in Control of the Company;
Control; (ii) Any any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
Control; or (iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 3 contracts
Samples: Change in Control Agreement (Gerber Scientific Inc), Change in Control Agreement (Gerber Scientific Inc), Change in Control Agreement (Gerber Scientific Inc)
Change in Control. (a1) Notwithstanding any provision in the Plan or in this Award Agreement, in the event of a Change in Control, the Board may, but shall not be required to, make such adjustments to the Award as it deems appropriate, including, without limitation, (i) causing the restrictions on the Award to immediately terminate or (ii) electing that the Award be surrendered to the Company by the holder thereof, that the Award be immediately canceled by the Company and that the holder of the Award receive, within a specified period of time from the occurrence of the Change in Control, a cash payment from the Company in an amount equal to the number of shares of Stock then subject to the Award, multiplied by the greater of (x) the highest per share price offered to stockholders of the Company in any transaction whereby the Change in Control means and includes each takes place or (y) the Fair Market Value of a share of Stock on the date of the followingoccurrence of the Change in Control.
(2) In the event of a Change in Control pursuant to Section (b)(3) or (4) below in connection with which the holders of Stock receive shares of common stock that are registered under Section 12 of the Exchange Act, the Board may, but shall not be required to, substitute for each share of Stock available under the Plan, whether or not then subject to an outstanding award, the number and class of shares into which each outstanding share of Stock shall be converted pursuant to such Change in Control.
(b) For purposes of the Plan and this Award Agreement, a "Change in Control" shall mean:
(i1) the acquisitionacquisition by any Person, directly or indirectly, by including any "person" within the meaning of Section 13(d)(3) or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act") and , of beneficial ownership within the rules thereunder) meaning of "beneficial ownership" (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) , of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securitiessecurities of the Company entitled to vote generally on matters (without regard to the election of directors) (the "Outstanding Voting Securities"), other than
excluding, however, the following: (i) any acquisition directly from the Company or an Affiliate (excluding any acquisition resulting from the exercise of an exercise, conversion or exchange privilege, unless the security being so exercised, converted or exchanged was acquired directly from the Company or an Affiliate), (ii) any acquisition by the Company or an Affiliate, (iii) any acquisition by an employee benefit plan (or related trust) sponsored or maintained by the Company or an Affiliate, (iv) any acquisition by any corporation pursuant to a transaction which complies with clauses (i), (ii) and (iii) of subsection (3) of this Section 3(b), or (v) any acquisition by the following persons: (A) XxXxx X. Xxxxxxx or his spouse, (B) any child of XxXxx X. Xxxxxxx or the spouse of any such child, (C) any grandchild of XxXxx X. Xxxxxxx, including any child adopted by any child of XxXxx X. Xxxxxxx, or the spouse of any such grandchild, (D) the estate of any of the persons described in clauses (A)-(C), (E) any trust or similar arrangement (including any acquisition on behalf of such trust or similar arrangement by the trustees or similar persons) provided that all of the current beneficiaries of such trust or similar arrangement are persons described in clauses (A)-(C) or their lineal descendants, or (F) the voting trust which expires on June 30, 2035, or any successor to such voting trust, including the trustees of such voting trust on behalf of such voting trust (all such persons, collectively, the "Exempted Persons");
(2) individuals who, as of February 22, 2005, constitute the Board (the "Incumbent Board") cease for any reason to constitute at least a majority of such Board; provided that any individual who becomes a director of the Company subsequent to February 22, 2005, and whose election or nomination for election by the Company's stockholders was approved by the vote of at least a majority of the directors then comprising the Incumbent Board, shall be deemed a member of the Incumbent Board; and provided further, that any individual who was initially elected as a director of the Company as a result of an acquisition actual or threatened solicitation by a trustee Person other than the Board for the purpose of opposing a solicitation by any other Person with respect to the election or removal of directors, or any other actual or threatened solicitation of proxies or consents by or on behalf of any Person other than the Board shall not be deemed a member of the Incumbent Board;
(3) consummation of a reorganization, merger or consolidation or sale or other fiduciary holding disposition of all or substantially all of the assets of the Company (a "Corporate Transaction"), excluding, however, a Corporate Transaction pursuant to which (i) all or substantially all of the individuals or entities who are the beneficial owners of the Outstanding Voting Securities immediately prior to such Corporate Transaction will beneficially own, directly or indirectly, more than 50% of the combined voting power of the outstanding securities under of the corporation resulting from such Corporate Transaction (including, without limitation, a corporation which as a result of such transaction owns, either directly or indirectly, the Company or all or substantially all of the Company's assets) which are entitled to vote generally on matters (without regard to the election of directors), in substantially the same proportions relative to each other as the shares of Outstanding Voting Securities are owned immediately prior to such Corporate Transaction, (ii) no Person (other than the following Persons: (v) the Company or an Affiliate, (w) any employee benefit plan (or related trust) sponsored or maintained by the Company or an Affiliate, (x) the corporation resulting from such Corporate Transaction, (y) the Exempted Persons, and (z) any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the CompanyPerson which beneficially owned, or
(B) an acquisition of voting securities by the Company or a corporation ownedimmediately prior to such Corporate Transaction, directly or indirectly by the stockholders indirectly, 25% or more of the Company in substantially the same proportions as their ownership of the stock of the CompanyOutstanding Voting Securities) will beneficially own, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoingdirectly or indirectly, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of such corporation entitled to vote generally on matters (without regard to the Company, then such acquisition shall constitute a Change in Control; or
(iielection of directors) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or and (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds individuals who were members of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to Incumbent Board will constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power members of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more board of directors of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transactioncorporation resulting from such Corporate Transaction; or
(iv4) approval by the Company's stockholders approve of the Company of a plan of complete liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 3 contracts
Samples: Restricted Stock Unit Award Agreement (United States Cellular Corp), Restricted Stock Unit Award Agreement (United States Cellular Corp), Restricted Stock Unit Award Agreement (United States Cellular Corp)
Change in Control. (a) Change in A Change-in-Control means and includes each shall mean any of the following:
(i) the acquisitiondissolution or liquidation of the Company;
(ii) a merger, directly consolidation, reorganization or indirectly, by similar transaction involving the Company (A) in which the Company is not the surviving corporation(s) or other surviving entity(ies) or (B) which results in the Company becoming the wholly-owned subsidiary of another corporation(s) or other entity(ies) (any "person" or "group" transaction of the type specified in this clause (as those terms are defined in Sections 3(a)(9B) a “Parent Transaction”), 13(d) and 14(d) unless the existing stockholders of the Company beneficially own (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934 as amended (the "“Exchange Act"”)) and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election aggregate immediately following the consummation of directors ("voting securities") of the Company that represent 25such transaction more than 50% or more of the combined voting power of the Company's then all classes of outstanding voting securities, securities of the successor(s) to the Company (in the case of a transaction referred to in clause (B) above) or of the corporation(s) or other than
entity(ies) whose voting securities are issued to the existing stockholders in such transaction (in the case of a transaction referred to in clause (A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition above);
(iii) a sale of voting securities by all or substantially all of the Company or a corporation owned, directly or indirectly by the stockholders assets of the Company to another corporation(s) or other entity(ies) as determined in substantially accordance with the same proportions as their ownership applicable law of the stock State of the Company, orDelaware;
(Civ) an acquisition any other transaction (including a merger, consolidation, reorganization or similar transaction) that results in any corporation(s) or other entity(ies) beneficially owning (within the meaning of voting securities pursuant to a Rule 13d-3 promulgated under the Exchange Act) immediately following the consummation of such transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25more than 50% or more of the combined voting power of all classes of outstanding voting securities of (A) the corporation(s) (including, to the extent applicable, the Company's , or other entity whose voting securities are issued to the existing stockholders of the Company in such transaction or (B) if no such issuance is made in such transaction, the Company, provided, however, that Change-in-Control shall not mean any transaction in which the existing stockholders of the Company prior to the transaction are the same as the stockholders of the Company after the transaction, notwithstanding that the existing stockholders’ relative ownership percentages have changed; or
(v) the Board members then outstanding serving on the Effective Date (“Incumbent Board Members”) ceasing for any reason to constitute (A) at any time prior to the consummation of a Parent Transaction, a majority of the Board or a majority of the board of directors, board of managers or other governing body of any successor to the Company or (B) at any time following the consummation of a Parent Transaction, a majority of the board of directors, board of managers or other governing body of the corporation or other entity whose voting securitiessecurities are issued to the existing stockholders of the Company in such transaction; provided, however, that if any individual becoming a person or group shall become the beneficial owner of 25% or more member of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning Board or of such periodboard of directors, constitute board of managers or other governing body, as the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with case may be, subsequent to the Company to effect a transaction described in clauses (i) or (iii) of this Section) Effective Date whose election by the Board appointment or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group Incumbent Board Members shall be treated deemed to be an Incumbent Board Member for purposes of this clause (B) as beneficially owning 25% or more v), but excluding, for such purposes, any such individual whose initial assumption of combined voting power of the Successor Entity solely office occurs as a result of an actual or threatened election contest with respect to the voting power held election or removal of directors (or managers or other members of any such governing body) or other actual or threatened solicitation of proxies or consents by or on behalf of someone other than the Board or such board of directors, board of managers or other governing body, as the case may be. Notwithstanding anything herein to the contrary, following the occurrence of a Change-in-Control, the determination of whether or not subsequent Change-in-Control has occurred will be made by replacing (i) references to “Effective Date” in the Company prior definition thereof with references to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control immediately prior Change-in-Control, and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person references to existing stockholders (including the Companyor any variation thereof) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons with references to the Board increases such beneficial ownership stockholders immediately following the preceding Change-in-Control. For the avoidance of such securities by an additional five percentage points or doubt, more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, than one Change-in-Control may occur for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 3 contracts
Samples: Employment Agreement (Broadview Networks Holdings Inc), Employment Agreement (Broadview Networks Holdings Inc), Employment Agreement (Broadview Networks Holdings Inc)
Change in Control. (a) As used in this Agreement, the phrase “Change in Control means and includes each of the followingshall mean:
(i) a. Except as provided by Section 3c hereof, the acquisition, directly or indirectly, acquisition by any "person" , entity or "“group" (as those terms are defined in Sections 3(a)(9), 13(d“ within the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act"”) and (excluding, for this purpose, any of the rules thereunder) Company’s subsidiaries or affiliates, or any executive benefit plan of "the Company which acquires beneficial ownership" ownership of voting securities of the Company), of beneficial ownership (as determined pursuant to within the meaning of Rule 13d-3 13 d-3 promulgated under the Exchange Act) of fifty percent (50%) or more of either the then outstanding shares of common stock or the combined voting power of the Company’s then outstanding voting securities entitled to vote generally in the election of directors; or
b. Individuals who, as of the date hereof, constitute the board of directors ("voting securities") of the Company that represent 25% or more as of the combined voting power date hereof (such board of directors, the “Incumbent Board”) cease for any reason to constitute at least 66% of the Company's then outstanding voting securities’s board of directors, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or provided that any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than becoming a director designated by a person who shall have entered into an agreement with subsequent to the Company to effect a transaction described in clauses (i) or (iii) of this Section) date hereof whose election by the Board election, or nomination for election by the Company's stockholders ’s stockholders, is or was approved by a vote of at least two-thirds 66% of the directors then still in office who either were directors at comprising the beginning of the two year period or whose Incumbent Board (other than an election or nomination of an individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the directors of such entity) shall be, for election was previously so approvedpurposes of this Agreement, cease for any reason to constitute considered as though such person were a majority thereofmember of the Incumbent Board; or
(iii) the consummation c. Consummation by the Company of a reorganization, merger or consolidation with any other person, entity or corporation, other than
(whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (xi) a merger, consolidation, reorganization, merger or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) consolidation which results would result in the Company's ’s voting securities outstanding immediately before the transaction prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company another entity) more than fifty percent (the Company or such person, the "Successor Entity")50%) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding Company’s voting securities or such other surviving entity outstanding immediately after the transactionsuch merger or consolidation, andor
(Bii) after a merger or consolidation effected to implement a recapitalization or reorganization of the Company (or any similar transaction) in which no person (other than the Company or group beneficially owns voting securities representing 25% any of its subsidiaries) acquires fifty percent (50%) or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined Company’s then outstanding voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transactionsecurities; or
(iv) d. Approval by the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control plan of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan complete liquidation of the Company, as applicable, or a trustee an agreement for the sale or other fiduciary holding securities under an employee benefit plan disposition by the Company of all or substantially all of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities ’s assets.
e. If any of the Company representing 9.5% above becomes applicable, the entity, if not the Company, that survives the merger or more consolidation or that agrees to purchase all or substantially all of the Company's then outstanding voting securities carrying ’s assets shall be referred to herein as the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company“Successor Employer.”
Appears in 3 contracts
Samples: Change in Control and Noncompetition Agreement (Comarco Inc), Change in Control and Noncompetition Agreement (Comarco Inc), Change in Control Agreement (Comarco Inc)
Change in Control. A “Change in Control” shall be deemed to have occurred in any one of the following events:
(a) Change in Control means and includes each of the following:
(i) the acquisition, directly or indirectly, by any "“person" or "group" ” (as those terms are such term is defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange “Act"”)) and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of other than the Company's then outstanding voting securities, other than
(A) an acquisition by a any trustee or other fiduciary holding securities under any an employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by trust of the Company, or
(B) an acquisition of voting securities by the Company or a any corporation owned, directly or indirectly indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to becomes a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the “beneficial owner” (as such term is defined in Rule 13d-3 promulgated under the Act), directly or indirectly, of securities of the Company representing 9.5% at least twenty-five percent (25%) or more of the combined voting power of the Company's ’s then outstanding voting securities carrying securities;
(b) persons who, as of the right date of the Agreement constituted the Company’s Board (the “Incumbent Board”) cease for any reason, including without limitation, as a result of a tender offer, proxy contest, merger or similar transaction, to vote in elections constitute at least a majority of persons the Board of Directors of the Company, provided that any person becoming a director of the Company subsequent to the date of agreement whose election or nomination for election was approved by at least a majority of the directors then comprising the Incumbent Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect thatshall, for purposes of this Agreement, be considered a Potential Change in Control member of the Incumbent Board; or
(c) the stockholders of the Company has occurred. You agree that, subject to shall approve (i) any consolidation or merger of the terms and conditions of this Agreement, in Company or its subsidiaries where the event of a Potential Change in Control stockholders of the Company, you will remain immediately prior to the consolidation or merger, would not, immediately after the consolidation or merger, beneficially own (as such term is defined in Rule 13d-3 under the Act), directly or indirectly, shares representing in the employ aggregate 50% or more of the voting shares of the corporation issuing cash or securities in the consolidation or merger (or of its ultimate parent corporation, if any), (ii) any sale, lease, exchange or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the assets of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (ziii) any plan or proposal for the occurrence of a Change in Control liquidation or dissolution of the Company.
Appears in 3 contracts
Samples: Change in Control Protection Agreement (Boston Private Financial Holdings Inc), Change in Control Protection Agreement (Boston Private Financial Holdings Inc), Change in Control Protection Agreement (Boston Private Financial Holdings Inc)
Change in Control. (aA) No benefits shall be payable hereunder unless there shall have been a Change in Control means and includes each of the followingCompany, as set forth below. For purposes of this Agreement a "Change in Control" of the Company shall mean the occurrence of any one or more of the following events:
(i) the acquisitionCompany shall (1) merge or consolidate with or into another corporation or entity or enter into a share exchange between the Company or stockholders of the Company and another individual, directly corporation or indirectlyother entity and as a result of such merger, consolidation or share exchange less than fifty percent (50%) of the outstanding voting securities of the surviving or resulting corporation or entity shall then be owned in the aggregate by the former stockholders of the Company; or (2) sell, lease, exchange or otherwise dispose of more than 2/3s of the Company's property and assets in one transaction or a series of related transactions to one or more individuals, corporations or other entities that are not subsidiaries of the Company, assuming that if consummation of such transaction is subject, at the time of such approval by stockholders, to the consent of any government or governmental agency, such consent by the government or governmental agency is obtained (either explicitly or implicitly by consummation of the transaction);
(ii) the stockholders of the Company adopt a plan of complete liquidation of the Company;
(iii) any "person" or "group" (as those terms are defined such term is used in Sections 3(a)(9), 13(d) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")) and (other than the rules thereunder) Employee, the Company, any of "beneficial ownership" (as determined the Company's subsidiaries, any employee benefit plan of the Company and/or one or more of its subsidiaries or any person or entity organized, appointed or established pursuant to the terms of any such employee benefit plan) becomes the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of voting securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% representing thirty percent (30%) or more of the combined voting power total number of votes eligible to be cast at any election of directors of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that no Change in Control shall be deemed to have occurred under this subparagraph (iii) if such "person" becomes a person or group shall become the beneficial owner of 25% or more of the combined voting power holder of the Company's then outstanding voting securities by reason of share acquisitions in one or more transactions initiated or pursued by the Company as described above and shall, unless after such share acquisitions by transaction(s) less than fifty percent (50%) of the Company, become the beneficial owner of any additional outstanding voting securities of the Company shall be owned in the aggregate by the former stockholders of the Company, then such acquisition shall constitute a Change in Control; or
(iiiv) During as a result of, or in connection with, any period tender offer or exchange offer, share exchange, merger, consolidation or other business combination, sale, lease, exchange or other disposition of two consecutive yearsmore than 2/3s of the Company's assets, individuals whoa contested election, at or any combination of the beginning foregoing transactions, the persons who are directors of such period, the Company on the date hereof (the "Incumbent Board") shall cease to constitute a majority of the Board together with of Directors of the Company or any new director(s) (other than successor to the Company; provided that any person becoming a director designated by a person who shall have entered into an agreement with subsequent to the Company to effect a transaction described in clauses (i) or (iii) of this Section) date hereof whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds three- quarters (3/4) of the directors then still in office who either were directors at comprising the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent Incumbent Board (either by remaining outstanding a specific vote or by being converted into voting securities approval of a proxy statement of the Company in which such person is named as a nominee for director without any objection to such nomination) shall be, for purposes herein, considered as though such person were a member of the Incumbent Board.
(B) In exchange for the benefits under this Agreement, you agree that, subject to the terms and conditions herein, in the event of a potential Change in Control of the Company occurring after the date hereof, you will not voluntarily terminate your employment with the Company and its subsidiaries until the earlier of (i) the date which is six months after the occurrence of such potential Change in Control of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(ivii) the Company's stockholders approve a liquidation or dissolution occurrence of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Company. If more than one potential Change in Control and any incidental matters relating thereto.
(b) occurs during the term of this Agreement, the provisions of the preceding sentence shall be applicable to each potential Change in Control occurring prior to an actual Change in Control. For the purposes of this Agreement, a "Potential potential Change in Control Control" of the Company" Company shall be deemed to have occurred if the following occur:
if: (i) The the Company enters into a written agreement or letter of intentan agreement, the consummation of which would result in the occurrence of a Change in Control of the Company;
Control; (ii) Any any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
Control; or (iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 3 contracts
Samples: Change in Control Agreement (Gerber Scientific Inc), Change in Control Agreement (Gerber Scientific Inc), Change in Control Agreement (Gerber Scientific Inc)
Change in Control. (a) A "Change in Control means and includes each Control" shall be deemed to have occurred in any one of the followingfollowing events:
(i) the acquisition, directly or indirectly, by any "person," or "group" (as those terms are defined such term is used in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and (other than the rules thereunder) of "beneficial ownership" Company, Summit Properties Partnership, L.P. (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power together with any other subsidiaries of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee the "Subsidiaries"), or any trustee, fiduciary or other fiduciary person or entity holding securities under any employee benefit plan (or related trust) sponsored or maintained by trust of the Company or any person controlled by of its Subsidiaries), together with all "affiliates" and "associates" (as such terms are defined in Rule 12b-2 under the Company or by any employee benefit plan (or related trustAct) sponsored or maintained by the Company or any person controlled by the Companyof such person, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner" (as such term is defined in Rule 13d-3 under the Act), directly or indirectly, of securities of the Company representing 9.540% or more of either (A) the combined voting power of the Company's ’s then outstanding voting securities carrying having the right to vote in elections an election of persons to the Board increases ("Voting Securities") or (B) the then outstanding shares of stock of the Company ("Stock"), in either such beneficial ownership case other than as a result of such an acquisition of securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securitiesdirectly from the Company; or
(ivii) The persons who, as of the date hereof, constitute the Board adopts (the "Incumbent Directors") cease for any reason, including, without limitation, as a resolution result of a tender offer, proxy contest, merger or similar transaction, to constitute at least a majority of the Board, provided that any person becoming a director of the Company subsequent to the effect thatdate hereof whose election or nomination for election was approved by a vote of at least a majority of the Incumbent Directors shall, for purposes of this Agreement, be considered an Incumbent Director; or
(iii) the consummation of a Potential Change in Control consolidation or merger of the Company has occurred. You agree that, subject to or any subsidiary where the terms and conditions of this Agreement, in the event of a Potential Change in Control shareholders of the Company, you will remain immediately prior to the consolidation or merger, would not, immediately after the consolidation or merger, beneficially own (as such term is defined in Rule 13d-3 under the Act), directly or indirectly, shares representing in the employ aggregate 50% of the voting shares of the corporation issuing cash or securities in the consolidation or merger (or of its ultimate parent corporation, if any), or the consummation of any sale, lease, exchange or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the assets of the Company; or
(iv) the stockholders of the Company shall approve any plan or proposal for the liquidation or dissolution of the Company. Notwithstanding the foregoing, a "Change in Control" shall not be deemed to have occurred for purposes of the foregoing clause (i) solely as the result of an acquisition of securities by the Company which, by reducing the number of shares of Voting Securities outstanding, increases the proportionate number of shares of Voting Securities beneficially owned by any person to 40% or more of the subsidiary thereof by which you are employed at combined voting power of all then outstanding Voting Securities; provided, however, that if any person referred to in this sentence shall thereafter become the date such Potential beneficial owner of any additional shares of Voting Securities (other than pursuant to a stock split, stock dividend, or similar transaction or as a result of an acquisition of securities directly from the Company) and immediately thereafter beneficially owns 40% or more of the combined voting power of all then outstanding Voting Securities, then a "Change in Control" shall be deemed to have occurred for purposes of the foregoing clause (i).
(b) For purposes of determining whether a Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control has occurred, all outstanding options, warrants and other convertible securities that are then exchangeable or convertible into Voting Securities of the Company, (y) the termination by you including, without limitation, all partnership units of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of deathany Subsidiary that are convertible into, or (z) the occurrence of a Change in Control under certain circumstances redeemable for, Voting Securities of the Company at the option of the holder or the Company, shall be deemed to have been converted into the applicable number of shares of Voting Securities of the Company immediately prior to making such determination.
Appears in 3 contracts
Samples: Retention Bonus Agreement (Summit Properties Inc), Retention Bonus Agreement (Summit Properties Inc), Retention Bonus Agreement (Summit Properties Inc)
Change in Control. A “Change in Control” shall be deemed to have occurred in any one of the following events:
(a) Change in Control means and includes each of the following:
(i) the acquisition, directly or indirectly, by any "“person" or "group" (,” as those terms are defined such term is used in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act") and the rules thereunder) of "beneficial ownership" ”), (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of other than the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee any of its subsidiaries, or any trustee, fiduciary or other fiduciary person or entity holding securities under any employee benefit plan (or related trust) sponsored or maintained by trust of the Company or any person controlled by the Company or by any employee benefit plan of its subsidiaries), together with all Affiliates and Associates (or related trustas such terms are hereinafter defined) sponsored or maintained by the Company or any person controlled by the Companyof such person, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the “beneficial owner of 25% or more owner” (as such term is defined in Rule 13d-3 of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity"Exchange Act)) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.525% or more of the Company's then outstanding voting shares of common stock of the Company (the “Stock”) (other than as a result of an acquisition of securities carrying directly from the right to vote in elections Company); or
(b) Upon (A) the consummation of persons any consolidation or merger of the Company where the shareholders of the Company, immediately prior to the Board increases consolidation or merger, did not, immediately after the consolidation or merger, beneficially own (as such beneficial ownership term is defined in Rule 13d-3 of such the Exchange Act), directly or indirectly, shares representing in the aggregate more than 50% of the voting shares of the corporation issuing cash or securities in the consolidation or merger (or of its ultimate parent corporation, if any), (B) the consummation of any sale, lease, exchange or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the assets of the Company or (C) the completion of a liquidation or dissolution that has been approved by the stockholders of the Company. Notwithstanding the foregoing, a “Change in Control” shall not be deemed to have occurred for purposes of the foregoing clause (a) solely as the result of an acquisition of securities by an additional five percentage points or more thereby the Company which, by reducing the number of shares of Stock outstanding, increases the proportionate number of shares of Stock beneficially owning 14.5owned by any person to 25% or more of the shares of Stock then outstanding; provided, however, that if any such securities; or
person shall at any time following such acquisition of securities by the Company become the beneficial owner of any additional shares of Stock (ivother than pursuant to a stock split, stock dividend, or similar transaction) The Board adopts and such person immediately thereafter is the beneficial owner of 25% or more of the shares of Stock then outstanding, then a resolution “Change in Control” shall be deemed to have occurred for purposes of the effect that, for foregoing clause (a). For purposes of this Agreement, “Affiliate” and “Associate” shall have the respective meanings ascribed to such terms in Rule 12b-2 of the Exchange Act, as in effect on the date of this Agreement; provided, however, that no person who is a Potential Change in Control director or officer of the Company has occurred. You agree that, subject to the terms and conditions shall be deemed an Affiliate or an Associate of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ any other director or officer of the Company (solely as a result of his position as director or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control officer of the Company.
Appears in 3 contracts
Samples: Executive Severance Agreement (Plug Power Inc), Executive Severance Agreement (Plug Power Inc), Executive Severance Agreement (Plug Power Inc)
Change in Control. (a) Notwithstanding the provisions of Section 2 "Right to Exercise Option" and Section 3 "Termination of Employment" of this Agreement, in the event of a Change in Control means and includes each Control, any portion of this option that is then not exercisable shall become immediately exercisable. For purposes hereof, a "Change in Control" shall be deemed to have occurred in the following:
event of (i) a merger involving the acquisitionCorporation in which the Corporation is not the surviving corporation (other than a merger with a wholly-owned subsidiary of the Corporation formed for the purpose of changing the Corporation's corporate domicile); (ii) a share exchange in which the shareholders of the Corporation exchange their stock in the Corporation for stock of another corporation (other than a share exchange in which all or substantially all of the holders of the voting stock of the Corporation, directly immediately prior to the transaction, exchange, on a pro rata basis, their voting stock of the Corporation for more than 50% of the voting stock of such other corporation); (iii) the sale of all or indirectly, by substantially all of the assets of the Corporation; or (iv) any "person" person or "group" group of persons (as those terms are defined in Sections 3(a)(9), by Section 13(d) and 14(d) of the Securities Exchange Act of 1934 1934, as amended) (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under than any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by trust benefiting the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders employees of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(CCorporation) an acquisition of voting securities pursuant to becoming a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company Corporation representing 9.5% or more than fifty (50%) percent of either the then outstanding Common Stock of the CompanyCorporation, or the combined voting power of the Corporation's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in In the event of a Potential Change of Control, the Committee may, in Control its sole discretion and without the consent of the CompanyOptionee, you will remain cancel this option in the employ exchange for a payment with respect to each vested share of Common Stock as provided in Section 9.2(b) of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the CompanyPlan.
Appears in 3 contracts
Samples: Non Qualified Stock Option Agreement (Perceptron Inc/Mi), Non Qualified Stock Option Agreement (Perceptron Inc/Mi), Incentive Stock Option Agreement (Perceptron Inc/Mi)
Change in Control. (a) For purposes of this Agreement, a “Change in Control means and includes each of the followingControl” shall be deemed to have taken place upon:
(i1) the acquisition, directly or indirectly, The acquisition by any "person" individual, entity or "group" group (as those terms are defined in Sections 3(a)(9), 13(dwithin the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act"”)) and the rules thereunder(a “Person”) of "beneficial ownership" ownership (as determined pursuant to within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 35% or more of either (a) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (b) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors ("voting securities"the “Outstanding Company Voting Securities”); provided, however, that for purposes of this subparagraph 1, the following acquisitions shall not constitute a Change in Control: (i) of the Company that represent 25% or more of the combined voting power of any acquisition directly from the Company's then outstanding voting securities, other than
(Aii) an any acquisition by a trustee or other fiduciary holding securities under the Company, (iii) any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person corporation controlled by the Company, or
or (Biv) an any acquisition of voting securities by the Company or a any corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause which complies with clauses (iiia), (b) below that would not be a Change in Control under clause and (iiic) of subparagraph 3 of this Section (F); Notwithstanding the foregoingor
(2) Individuals who, neither as of the following events shall date hereof, constitute an "acquisition" by any person or group for purposes the Board of this clause (a): an acquisition Directors of the Company's securities by Company (the Company which causes the Company's voting securities beneficially owned by “Incumbent Board”) cease for any reason to constitute at least a person or group to represent 25% or more majority of the combined voting power Board of the Company's then outstanding voting securitiesDirectors; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than individual who becomes a director designated by a person who shall have entered into an agreement with subsequent to the Company to effect a transaction described in clauses (i) or (iii) of this Section) date hereof and whose election by the Board election, or nomination for election by the Company's stockholders ’s shareholders, was approved by a vote of at least two-thirds a majority of the directors then still in office who comprising the Incumbent Board (either were directors at the beginning by a specific vote or by approval of the two year period proxy statement of the Company in which such person is named as a nominee for director, without written objection to such nomination) shall be deemed to be a member of the Incumbent Board; provided, further, that notwithstanding the immediately preceding proviso, any individual whose initial assumption of office occurs as a result of an actual or whose threatened election contest with respect to the election or nomination for election was previously so approvedremoval of directors or other actual or threatened solicitation of proxies or contests by or on behalf of a Person, cease for any reason other than the Board of Directors of the Company, shall not be deemed to constitute be a majority thereofmember of the Incumbent Board; or
(iii3) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) Consummation of (x) a reorganization, merger, consolidation, reorganization, share exchange or business combination consolidation or (y) a sale or other disposition of all or substantially all of the Company's assets or of the Company (z) the acquisition of assets or stock of another entitya “Business Combination”), in each case other than a transaction
case, unless, following such Business Combination: (Aa) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding all or by being converted into voting securities substantially all of the Company or individuals and entities who were the person thatbeneficial owners, as a result respectively, of the transaction, controlsOutstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 65% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Company or owns, directly or indirectly, all or substantially all of the Company's ’s assets either directly or otherwise succeeds through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to the business such Business Combination, of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be; (b) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such personcorporation resulting from the Business Combination) beneficially owns, the "Successor Entity")) directly or indirectly, 35% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation except to the extent that such ownership existed prior to the Business Combination; and (c) at least a majority of the combined voting power members of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more board of directors of the combined voting power corporation resulting from such Business Combination were members of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company Incumbent Board immediately prior to the consummation time of the transactionexecution of the initial agreement, or of the action of the Board of Directors of the Company, providing for such Business Combination; or
(iv4) Approval by the Company's stockholders approve of the Company of a complete liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 3 contracts
Samples: Employment Agreement (Meadowbrook Insurance Group Inc), Employment Agreement (Meadowbrook Insurance Group Inc), Employment Agreement (Meadowbrook Insurance Group Inc)
Change in Control. (a) A Change in In Control means and includes each will be deemed to have occurred for purposes hereof, upon any one of the following:
following events: (i) any person (within the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined in meaning of Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), other than the Company (including its subsidiaries, directors, and executive officers) and has become the rules thereunder) beneficial owner, within the meaning of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act, of fifty percent (50%) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of the Company's then outstanding Common Stock or equivalent in voting securities, other than
(A) an acquisition by a trustee power of any class or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition classes of the Company's outstanding securities by the Company which causes the Company's ordinarily entitled to vote in elections of directors ("voting securities beneficially owned by a person securities"); or group to represent 25% (ii) shares representing fifty percent (50%) or more of the combined voting power of the Company's then voting securities are purchased pursuant to a tender offer or exchange offer (other than an offer by the Company or its subsidiaries or affiliates); or (iii) as a result of, or in connection with, any tender offer or exchange offer, merger or other business combination, sale of assets, or contested election, or any combination of the foregoing transactions (a "Transaction"), the persons who were Directors of the Company before the Transaction shall cease to constitute a majority of the Board of the Company or of any successor to the Company; or (iv) following the Effective Date, the Company is merged or consolidated with another corporation and as a result of such merger or consolidation less than fifty percent (50%) of the outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more securities of the combined voting power surviving or resulting corporation shall then be owned in the aggregate by the former shareholders of the Company's then outstanding voting securities , other than (A) any party to such merger or consolidation, or (B) any affiliates of any such party; or (v) the Company transfers more than fifty percent (50%) of its assets, or the last of a series of transfers results in the transfer of more than fifty percent (50%) of the assets of the Company, to another entity that is not wholly-owned by reason of share acquisitions the Company; or (vi) Xxxxx X. Xxxxxx'x employment by the Company as described above and shallChief Executive Officer is terminated. For purposes of subsection (v), after such share acquisitions by the Company, become the beneficial owner determination of any additional voting securities what constitutes fifty percent (50%) of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or shall be made by the person thatBoard, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities constituted immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated events that would constitute a Change in Control of the Company;
if fifty percent (iii50%) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote assets were transferred in elections of persons connection with such events, in its sole discretion. Notwithstanding anything to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of contrary contained in this AgreementSection 7.2, a Potential Change in In Control shall not be deemed to have occurred for the purposes hereof, upon any of the following events: (1) the consummation of an IPO; or (2) the conversion of existing classes of Class A Stock and Preferred Stock of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Companyinto Common Stock.
Appears in 2 contracts
Samples: Employment Agreement (Physician Health Corp), Employment Agreement (Physician Health Corp)
Change in Control. (a) For the purpose of this Agreement, a "Change in Control means and includes each of the followingControl" shall mean:
(i) the acquisition, directly or indirectly, a. The acquisition by any "person" individual, entity or "group" group (as those terms are defined in Sections 3(a)(9), 13(dwithin the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act") and the rules thereunder”)) of "beneficial ownership" ownership (as determined pursuant to within the meaning of Rule 13d-3 promulgated under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 2540% or more of the combined voting power then outstanding shares of common stock of the Company's then outstanding voting securitiesCompany (the “Outstanding Company Common Stock”); provided, other than
(A) an however, that any acquisition by a trustee the Company or other fiduciary holding securities under its subsidiaries, or any employee benefit plan (or related trust) sponsored or maintained by of the Company or its subsidiaries of 40% or more of Outstanding Company Common Stock shall not constitute a Change in Control; and provided, further, that any person controlled acquisition by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation with respect to which, following such acquisition, more than 50% of the then outstanding shares of common stock of such corporation, is then beneficially owned, directly or indirectly indirectly, by the stockholders all or substantially all of the individuals and entities who were the beneficial owners of the Outstanding Company Common Stock immediately prior to such acquisition in substantially the same proportions proportion as their ownership ownership, immediately prior to such acquisition, of the stock of the CompanyOutstanding Company Common Stock, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would shall not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
b. Any transaction which results in the Continuing Directors (as defined in the Certificate of Incorporation of the Company) constituting less than a majority of the Board of Directors of the Company; or
c. Approval by the stockholders of the Company of (i) a reorganization, merger or consolidation, in each case, with respect to which all or substantially all of the individuals and entities who were the beneficial owners of the Outstanding Company Common Stock immediately prior to such reorganization, merger or consolidation do not, following such reorganization, merger or consolidation, beneficially own, directly or indirectly, more than 50% of the then outstanding shares of common stock of the corporation resulting from such a reorganization, merger or consolidation, (ii) During any period a complete liquidation or dissolution of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the assets of the Company's , excluding a sale or other disposition of assets to a subsidiary of the Company.
d. Anything in this Agreement to the contrary notwithstanding, if an event that would, but for this paragraph, constitute a Change of Control results from or (z) the arises out of a purchase or other acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, by a corporation or other entity in which the Company Executive has a greater than ten percent (10%) direct or ownsindirect equity interest, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group event shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would not constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the CompanyControl.
Appears in 2 contracts
Samples: Severance Agreement (Pressure Biosciences Inc), Severance Agreement (Pressure Biosciences Inc)
Change in Control. (a) For purposes of this Agreement, a "Change in Control means and includes each Control" with respect to the Corporation shall be deemed to have taken place on the occurrence of one or more of the followingfollowing events:
(i) the acquisition, directly or indirectly, by any Any "person" or "group" (as those terms are defined such term is used in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act") and the rules thereunder) of acquires or becomes a "beneficial ownershipowner" (as determined pursuant to defined in Rule 13d-3 or any successor rule under the Exchange Act) ), directly or indirectly, of securities of the Corporation representing 50% or more of the combined voting power of the Corporation's then outstanding securities entitled to vote generally in the election of directors ("voting securitiesVoting Securities") of ), provided, however, that the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securities, other thanfollowing shall not constitute a Change in Control pursuant to this Section 4.2:
(A) an any acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained beneficial ownership by the Company Corporation or a subsidiary;
(B) any person controlled by the Company acquisition or beneficial ownership by any employee benefit plan (or related trust) sponsored or maintained by the Company Corporation or any person controlled by the Company, orone or more of its subsidiaries;
(BC) an any acquisition or beneficial ownership by any corporation with respect to which, immediately following such acquisition, more than 50% of both the combined voting securities by power of the Company or a corporation Corporation's then outstanding Voting Securities and shares of the Corporation's Common Stock (the "Shares) is then beneficially owned, directly or indirectly indirectly, by the stockholders all or substantially all of the Company persons who beneficially owned Voting Securities and Shares of the Corporation immediately prior to such acquisitions in substantially the same proportions as their ownership of such Voting Securities and Shares, as the stock of the Companycase may be, or
(C) an acquisition of voting securities pursuant immediately prior to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Controlacquisitions; or
(D) any acquisition or beneficial ownership by Summit Energy Ventures, LLC, or any person who is an affiliate thereof on the date of this Agreement.
(ii) During any period A majority of two consecutive years, the members of the Board shall not be Continuing Directors. "Continuing Directors" shall mean: (A) individuals who, at on the beginning date hereof, are directors of such periodthe Corporation, constitute (B) individuals elected as directors of the Board together with any new director(s) (other than a director designated by a person who Corporation subsequent to the date hereof for whose election proxies shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election been solicited by the Board or nomination for election (C) any individual elected or appointed by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason Board to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of fill vacancies on the Board caused by death or resignation (the "Committee"but not by removal) shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Companyfill newly-created directorships;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 2 contracts
Samples: Employment Agreement (Power Efficiency Corp), Employment Agreement (Power Efficiency Corp)
Change in Control. (a) A Change in Control means and includes each shall mean any of the following:
: (i) (A) the acquisition, directly making of a tender or indirectly, exchange offer by any "person" person or "group" entity or group of associated persons or entities (as those terms are defined in Sections 3(a)(9), 13(dwithin the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934 1934) (the a "Exchange ActPerson") and (other than the rules thereunderCompany or its Affiliates) for shares of "beneficial ownership" (as determined Common Stock pursuant to Rule 13d-3 under the Exchange Act) which purchases are made of securities entitled to vote generally in the election of directors representing at least twenty percent ("voting securities"20%) of the total combined voting power of the Company's then issued and outstanding voting securities; (B) the merger or consolidation of the Company that with, or the sale or disposition of all or substantially all of the assets of the Company to, any Person other than (a) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent 25% (either by remaining outstanding or by being converted into voting securities of the surviving or parent entity) fifty percent (50%) or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by of the Company or any person controlled by such surviving or parent entity outstanding immediately after such merger or consolidation; or (b) a merger or capitalization effected to implement a recapitalization of the Company or by any employee benefit plan (or related trustsimilar transaction) sponsored in which no Person is or maintained by becomes the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation ownedbeneficial owner, directly or indirectly by (as determined under Rule 13d-3 promulgated under the stockholders Securities Exchange Act of 1934), of securities representing more than the amounts set forth in (C) below; (C) the acquisition of direct or indirect beneficial ownership (as determined under Rule 13d-3 promulgated under the Securities Exchange Act of 1934), in the aggregate, of securities of the Company in substantially the same proportions as their ownership of the stock of the Company, or
representing twenty percent (C20%) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the total combined voting power of the Company's then issued and outstanding voting securitiessecurities by any Person acting in concert as of the date of this Agreement; provided, however, that if a person or group shall become the beneficial owner Board of 25% or more Directors of the combined Company (referred to herein as the "Board") may at any time and from time to time and in the sole discretion of the Board, as the case may be, increase the voting power security ownership percentage threshold of this item (C) to an amount not exceeding forty percent (40%); or (D) the approval by the shareholders of the Company of any plan or proposal for the complete liquidation or dissolution of the Company or for the sale of all or substantially all of the assets of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
or (ii) During during any period of not more than two (2) consecutive years, individuals who, who at the beginning of such period, period constitute the Board together with Board, and any new director(s) director (other than a director designated by a person who shall have has entered into an agreement with the Company to effect a transaction described in clauses clause (i) or (iii) of this Section)) whose election by the Board or nomination for election by the Company's stockholders shareholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Companythereof.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 2 contracts
Samples: Employment Agreement (Foot Locker Inc), Restricted Stock Award Agreement (Foot Locker Inc)
Change in Control. (a) For purposes of this Agreement and the options granted hereunder, Article 18 of the Plan and the definition of “Change in Control means and includes each Control” set forth in the Plan shall not apply. In the event of a “change in control” (as defined below), (i) any portion of the followingoptions not yet exercisable according to Section 2 of this Agreement will become immediately exercisable on the date of such “change in control”, and (ii) the provisions of Section 3 hereof with respect to the termination of the options if the Grantee’s membership is terminated for cause shall not be applicable with respect to any termination occurring within 36 months after the change in control. As used herein, a “change in control” shall be deemed to have occurred upon:
(i) a business combination, including a merger or consolidation, of the acquisitionCompany and the shareholders of the Company prior to the combination do not continue to own, directly or indirectly, by more than fifty-one percent (51%) of the equity of the combined entity;
(ii) a sale, transfer, or other disposition in one or more transactions (other than in transactions in the ordinary course of business or in the nature of a financing) of the assets or earnings power aggregating more than forty-five percent (45%) of the assets or operating revenues of the Company to any "person" person or "group" affiliated or associated group of persons (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) by Rule 12b-2 of the Securities Exchange Act of 1934 (the "“Exchange Act"”));
(iii) and the rules thereunderliquidation of the Company;
(iv) one or more transactions which result in the acquisition by any person or associated group of persons (other than the Company, any employee benefit plan whose beneficiaries are employees of the Company or any of its subsidiaries) of "the beneficial ownership" ownership (as determined pursuant to defined in Rule 13d-3 under of the Exchange Act) of securities entitled to vote generally in the election of directors fifteen percent ("voting securities"15%) of the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by of the Company which affiliated persons owned less than fifteen percent (15%) prior to such transaction or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, transactions; or
(Bv) an acquisition the election or appointment, within a twelve (12) month period, of voting securities by any person or affiliated or associated group, or its or their nominees, to the Company or a corporation owned, directly or indirectly by the stockholders Board of the Company in substantially the same proportions as their ownership of the stock Directors of the Company, or
(C) an acquisition of voting securities pursuant to such that such persons or nominees, when elected or appointed, constitute a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither majority of the following events shall constitute an "acquisition" by any person or group for purposes Board of this clause (a): an acquisition Directors of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person and whose appointment or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was not approved by a vote majority of at least two-thirds of the directors then still in office those persons who either were directors at the beginning of the two year such period or whose election or nomination for election appointment was previously so approvedmade at the request of an Acquiring Person. As used herein, cease for the term “Acquiring Person” shall mean any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganizationperson who, or business combination which, together with all affiliates or (y) a sale or other disposition associates of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, is the "Successor Entity")beneficial owner of fifteen percent (15%) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; providedCommon Stock then outstanding, however, except that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in an Acquiring Person does not include the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the CompanyCompany or any of its subsidiaries or any person holding Common Stock for or pursuant to such plan. For the purpose of determining who is an Acquiring Person, or a trustee or other fiduciary holding securities under an employee benefit plan the percentage of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities outstanding shares of the Company representing 9.5% or more Common Stock of which a person is a beneficial owner shall be calculated in accordance with Rule 13d-e of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the CompanyExchange Act.
Appears in 2 contracts
Samples: Non Qualified Stock Option Agreement (Woodward, Inc.), Non Qualified Stock Option Agreement (Woodward, Inc.)
Change in Control. (a1) Notwithstanding any provision in the Plan or in this Award Agreement, in the event of a Change in Control, the Board may, but shall not be required to, make such adjustments to the Award as it deems appropriate, including, without limitation, (i) causing the restrictions on the Award to immediately terminate or (ii) electing that the Award be surrendered to the Company by the holder thereof, that the Award be immediately canceled by the Company and that the holder of the Award receive, within a specified period of time from the occurrence of the Change in Control, a cash payment from the Company in an amount equal to the number of shares of Stock then subject to the Award, multiplied by the greater of (x) the highest per share price offered to stockholders of the Company in any transaction whereby the Change in Control means and includes each takes place or (y) the Fair Market Value of a share of Stock on the date of the followingoccurrence of the Change in Control.
(2) In the event of a Change in Control pursuant to Section (b)(3) or (4) below in connection with which the holders of Stock receive shares of common stock that are registered under Section 12 of the Exchange Act, the Board may, but shall not be required to, substitute for each share of Stock available under the Plan, whether or not then subject to an outstanding award, the number and class of shares into which each outstanding share of Stock shall be converted pursuant to such Change in Control.
(b) For purposes of the Plan and this Award Agreement, a “Change in Control” shall mean:
(i1) the acquisition, directly or indirectly, acquisition by any "Person, including any “person" ” within the meaning of Section 13(d)(3) or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act") and , of beneficial ownership within the rules thereunder) meaning of "beneficial ownership" (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) , of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securitiessecurities of the Company entitled to vote generally on matters (without regard to the election of directors) (the “Outstanding Voting Securities”), other than
excluding, however, the following: (i) any acquisition directly from the Company or an Affiliate (excluding any acquisition resulting from the exercise of an exercise, conversion or exchange privilege, unless the security being so exercised, converted or exchanged was acquired directly from the Company or an Affiliate), (ii) any acquisition by the Company or an Affiliate, (iii) any acquisition by an employee benefit plan (or related trust) sponsored or maintained by the Company or an Affiliate, (iv) any acquisition by any corporation pursuant to a transaction which complies with clauses (i), (ii) and (iii) of subsection (3) of this Section 3(b), or (v) any acquisition by the following persons: (A) LxXxx X. Xxxxxxx or his spouse, (B) any child of LxXxx X. Xxxxxxx or the spouse of any such child, (C) any grandchild of LxXxx X. Xxxxxxx, including any child adopted by any child of LxXxx X. Xxxxxxx, or the spouse of any such grandchild, (D) the estate of any of the persons described in clauses (A)-(C), (E) any trust or similar arrangement (including any acquisition on behalf of such trust or similar arrangement by the trustees or similar persons) provided that all of the current beneficiaries of such trust or similar arrangement are persons described in clauses (A)-(C) or their lineal descendants, or (F) the voting trust which expires on June 30, 2035, or any successor to such voting trust, including the trustees of such voting trust on behalf of such voting trust (all such persons, collectively, the “Exempted Persons”);
(2) individuals who, as of February 22, 2005, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of such Board; provided that any individual who becomes a director of the Company subsequent to February 22, 2005, and whose election or nomination for election by the Company’s stockholders was approved by the vote of at least a majority of the directors then comprising the Incumbent Board, shall be deemed a member of the Incumbent Board; and provided further, that any individual who was initially elected as a director of the Company as a result of an acquisition actual or threatened solicitation by a trustee Person other than the Board for the purpose of opposing a solicitation by any other Person with respect to the election or removal of directors, or any other actual or threatened solicitation of proxies or consents by or on behalf of any Person other than the Board shall not be deemed a member of the Incumbent Board;
(3) consummation of a reorganization, merger or consolidation or sale or other fiduciary holding disposition of all or substantially all of the assets of the Company (a “Corporate Transaction”), excluding, however, a Corporate Transaction pursuant to which (i) all or substantially all of the individuals or entities who are the beneficial owners of the Outstanding Voting Securities immediately prior to such Corporate Transaction will beneficially own, directly or indirectly, more than 50% of the combined voting power of the outstanding securities under of the corporation resulting from such Corporate Transaction (including, without limitation, a corporation which as a result of such transaction owns, either directly or indirectly, the Company or all or substantially all of the Company’s assets) which are entitled to vote generally on matters (without regard to the election of directors), in substantially the same proportions relative to each other as the shares of Outstanding Voting Securities are owned immediately prior to such Corporate Transaction, (ii) no Person (other than the following Persons: (v) the Company or an Affiliate, (w) any employee benefit plan (or related trust) sponsored or maintained by the Company or an Affiliate, (x) the corporation resulting from such Corporate Transaction, (y) the Exempted Persons, and (z) any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the CompanyPerson which beneficially owned, or
(B) an acquisition of voting securities by the Company or a corporation ownedimmediately prior to such Corporate Transaction, directly or indirectly by the stockholders indirectly, 25% or more of the Company in substantially the same proportions as their ownership of the stock of the CompanyOutstanding Voting Securities) will beneficially own, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoingdirectly or indirectly, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of such corporation entitled to vote generally on matters (without regard to the Company, then such acquisition shall constitute a Change in Control; or
(iielection of directors) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or and (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds individuals who were members of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to Incumbent Board will constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power members of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more board of directors of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transactioncorporation resulting from such Corporate Transaction; or
(iv4) approval by the Company's stockholders approve of the Company of a plan of complete liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 2 contracts
Samples: Restricted Stock Unit Award Agreement (United States Cellular Corp), Restricted Stock Unit Award Agreement (United States Cellular Corp)
Change in Control. (a) A "Change in Control means and includes each of the following:
Control" shall be deemed to have occurred if (i) the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined such term is used in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 1934, as amended) (the "Exchange ActEXCHANGE ACT") and ), other than a trustee or other fiduciary holding securities under an employee benefit plan of the rules thereunder) of Company, is or becomes the "beneficial ownershipowner" (as determined pursuant to such term is defined in Rule 13d-3 under the Exchange Act) ), directly or indirectly, of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25representing 50% or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
or (ii) During during any period of two consecutive years, individuals who, who at the beginning of such period, period constitute the Board together with of Directors and any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board of Directors or nomination for election by the Company's stockholders shareholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
, or (iii) the consummation by shareholders of the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of approve (x) a merger, consolidation, reorganization, merger or business combination or (y) a sale or other disposition of all or substantially all consolidation of the Company's assets or Company with any other entity (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) merger or consolidation which results would result in the Company's voting securities of the Company outstanding immediately before the transaction prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")surviving entity) directly or indirectly, at least a majority 80% of the combined voting power of the Successor Entity's outstanding voting securities of the Company or such surviving entity outstanding immediately after the transactionsuch merger or consolidation), and
(By) after which no person or group beneficially owns voting securities representing 25% or more a plan of complete liquidation of the combined voting power Company or (z) an agreement or agreements for the sale or disposition, in a single transaction or series of related transactions, by the Company of all or substantially all of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution property and assets of the Company.
(v) The Human Resources Committee of . Notwithstanding the Board (the "Committee") shall have full and final authorityforegoing, which shall be exercised in its discretion, to determine conclusively whether events otherwise constituting a Change in Control of in accordance with the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" foregoing shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would not constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of if such events are solicited by the Company representing 9.5% and are approved, recommended or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to supported by the Board increases of Directors in actions taken prior to, and with respect to, such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Companyevents.
Appears in 2 contracts
Samples: Indemnification Agreement (Mannatech Inc), Indemnification Agreement (Mannatech Inc)
Change in Control. (a) In the event there is a Change in Control means (as defined herein) of the Company, and includes (A) Executive's employment is terminated by the Company without cause within one (1) year following any such Change in Control; (B) if Executive's employment is terminated by the Company at the request of or pursuant to an agreement with a third party who has taken steps reasonably calculated to effect a Change in Control; (C) if Executive's employment is terminated by the Company in connection with or in anticipation of a Change in Control; (D) if Executive voluntarily terminates his employment for Good Reason (as defined above in Paragraph (c)) within one (1) year following any such Change in Control; or (E) if Executive voluntarily terminates his employment for Good Reason within one (1) year following any action taken by the Company at the request of or pursuant to an agreement with a third party who has taken steps reasonably calculated to effect a Change in Control or any action taken by the Company in connection with or in anticipation of a Change in Control, in each case which action constitutes Good Reason, then Executive will be entitled to receive a severance payment equal to one (1) year of salary continuation at his then current base salary, or the payments due and owing to him under the remaining term of the agreement, whichever is greater. For purposes of this Agreement, a "Change in Control" of the Company shall be deemed to occur upon any of the following:
(i) the acquisition, directly a consolidation or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") merger of the Company that represent 25with or into any other corporation, or any other entity or person, other than a wholly-owned subsidiary of the Company, excluding any transaction in which the shares of the Company's common stock outstanding immediately prior to any such consolidation or merger represents immediately thereafter more than 50% or more of the combined voting power of the Company's then outstanding voting securities, other thanresulting entity after the transaction;
(Aii) any corporate reorganization, including an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by exchange offer, in which the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would shall not be a Change the continuing or surviving entity resulting from such reorganization, excluding any transaction in Control under clause (iii); Notwithstanding which the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition shares of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group common stock outstanding immediately prior to represent 25any such reorganization represents immediately thereafter more than 50% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become resulting entity after the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereoftransaction; or
(iii) the consummation sale of a substantial portion of the Company's assets, which shall be deemed to occur on the date that any one person, or more than one person acting as a group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the Company that (a) have a total fair market value equal to more than 50% of the total fair market value of all the assets of the Company immediately prior to such acquisition or acquisitions, or (b) represents a majority of the common stock of any (1) subsidiary of the Company, the revenues of which, in the most recent fiscal year, represent more than 75% of the consolidated gross revenues of the Company and its subsidiaries. Notwithstanding the foregoing, a transfer of assets or common stock in a subsidiary by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) will not be treated as a sale or other disposition of all or substantially all a substantial portion of the Company's assets or (z) if the acquisition of assets or stock of another are transferred to an entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding 50% or by being converted into voting securities more of the Company total value or the person that, as a result voting power of the transaction, controlswhich is owned, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of by the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 2 contracts
Samples: Employment Agreement (Per Se Technologies Inc), Employment Agreement (Per Se Technologies Inc)
Change in Control. A Change in Control shall be deemed to have occurred:
(a) Change in Control means and includes each of the following:
(i) the acquisition, directly or indirectly, by If any "person" or "group" (as those terms are defined such term is used in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act") and in effect on the rules thereunderdate hereof) or group of persons acting in concert, other than (i) the Company or (ii) any employee benefit plan of the Company becomes the "beneficial ownershipowner" (as determined pursuant to such term is defined in Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25representing 40% or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power all classes of the Company's then outstanding securities ordinarily having the right to vote in the election of directors ("voting securitiesstock"). Notwithstanding the foregoing, the beneficial ownership requirement in this Section 2(a) shall not be satisfied if the attainment of the applicable percentage of beneficial ownership is the result of an acquisition of voting stock by the Company which, by reducing the number of shares outstanding increases the proportionate number of shares beneficially owned by any person; provided, however, that if a person or group shall become the beneficial owner of 2540% or more of the combined voting power stock of the Company's Company then outstanding voting securities by reason of share acquisitions purchases by the Company as described above and shall, after such share acquisitions purchases by the Company, Company become the beneficial owner of any additional voting securities of the Companystock, then such acquisition the beneficial ownership requirement in this Section 2(a) shall constitute a Change in Controlhave been satisfied; or
(iib) During if there is a change in the majority of the members of the Board within any period of two consecutive years, individuals who, at the beginning of such twenty-four month period, constitute unless the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders of each new director was approved by a vote of at least two-thirds a majority of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereofperiod; or
(iiic) the consummation by the Company if there shall be consummated any merger or consolidation (whether directly involving the Company or indirectly involving the Company through one series of mergers or more intermediariesconsolidations) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's , or any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company other than (i) a merger or (z) consolidation which would result in the acquisition of assets or voting stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding Company immediately before the transaction prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities stock of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")surviving entity) directly or indirectly, at least a majority more than 60% of the combined voting power of the Successor Entity's voting stock of the Company (or such surviving entity) outstanding voting securities immediately after such merger or consolidation, or (ii) a merger or consolidation effected to implement a recapitalization (or similar transaction) of the transaction, and
(B) after Company in which no person or group beneficially owns voting securities representing 25becomes the owner of 40% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined then outstanding voting power stock of the Successor Entity solely as Company, or (iii) a result merger or consolidation effected to implement a reorganization of the voting power held Company's ownership wherein the Company shall become a wholly-owned subsidiary of another corporation and the shareholders of the Company shall become shareholders of such other corporation without any material change in each shareholder's proportionate ownership of such other corporation from that owned in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation such merger or dissolution of the Companyconsolidation.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 2 contracts
Samples: Severance Compensation Agreement (Crowley Milner & Co), Severance Compensation Agreement (Crowley Milner & Co)
Change in Control. (a) If a Change in Control means and includes each (as defined below) of the following:
Company occurs during the term of this Agreement, the provisions of this Section 9 shall become operative. For the purposes of this Agreement, a Change in Control of the Company means: (i) a dissolution or liquidation of the acquisition, directly Company; (ii) a sale of all or indirectly, by any "person" substantially all of the assets of the Company; (iii) a merger or "group" consolidation in which the Company is not the surviving corporation and in which beneficial ownership of securities of the Company representing at least fifty percent (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d50%) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities combined voting power entitled to vote generally in the election of directors has changed; ("voting iv) a reverse merger in which the Company is the surviving corporation but the shares of Common Stock outstanding immediately preceding the merger are converted by virtue of the merger into other property, whether in the form of securities") , cash or otherwise, and in which beneficial ownership of securities of the Company that represent 25% or more representing at least fifty percent (50%) of the combined voting power entitled to vote in the election of the Company's then outstanding voting securities, other than
directors has changed; (Av) an acquisition by a trustee any person, entity or other fiduciary holding securities under group within the meaning of Section 13(d) or 14(d) of the Exchange Act, or any comparable successor provisions (excluding any employee benefit plan (plan, or related trust) , sponsored or maintained by the Company or any person controlled by subsidiary of the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person other entity controlled by the Company) of the beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act, or
(Bor comparable successor rule) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
representing at least fifty percent (C50%) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power entitled to vote in the election of directors; or, (vi) in the event that the individuals who, as of the date of the adoption of this provision, are members of the Company's then outstanding voting securities; providedBoard of Directors (the "Incumbent Board"), however, that if a person or group shall become the beneficial owner of 25% or more cease for any reason to constitute at least fifty percent (50%) of the combined voting power Board of Directors. (If the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shallelection, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was stockholders, of any new director is approved by a vote of at least two-thirds fifty percent (50%) of the directors then still in office who either were directors at the beginning Incumbent Board, such new director shall be considered as a member of the two year Incumbent Board). For a period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately eighteen months after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying Executive shall have the right to vote in elections of persons terminate Executive's employment with the Company pursuant to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control Section 9 when any one of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control following occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.:
Appears in 2 contracts
Samples: Employment Agreement (Petsmart Inc), Employment Agreement (Petsmart Inc)
Change in Control. (a) A Change in Control means and includes each shall mean any of the following:
: (i) (A) the acquisition, directly making of a tender or indirectly, exchange offer by any "person" person or "group" entity or group of associated persons or entities (as those terms are defined in Sections 3(a)(9), 13(dwithin the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934 (a “Person”) (other than the "Exchange Act"Company or its Affiliates) and for shares of common stock of the rules thereunder) of "beneficial ownership" (as determined Company pursuant to Rule 13d-3 under the Exchange Act) which purchases are made of securities entitled to vote generally in the election of directors representing at least twenty percent ("voting securities"20%) of the total combined voting power of the Company’s then issued and outstanding voting securities; (B) the merger or consolidation of the Company that with, or the sale or disposition of all or substantially all of the assets of the Company to, any Person other than (a) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent 25% (either by remaining outstanding or by being converted into voting securities of the surviving or parent entity) fifty percent (50%) or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by of the Company or any person controlled by such surviving or parent entity outstanding immediately after such merger or consolidation; or (b) a merger or capitalization effected to implement a recapitalization of the Company or by any employee benefit plan (or related trustsimilar transaction) sponsored in which no Person is or maintained by becomes the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation ownedbeneficial owner, directly or indirectly by (as determined under Rule 13d-3 promulgated under the stockholders Securities Exchange Act of 1934), of securities representing more than the amounts set forth in (C) below; (C) the acquisition of direct or indirect beneficial ownership (as determined under Rule 13d-3 promulgated under the Securities Exchange Act of 1934), in the aggregate, of securities of the Company in substantially the same proportions as their ownership of the stock of the Company, or
representing twenty percent (C20%) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the total combined voting power of the Company's ’s then issued and outstanding voting securitiessecurities by any Person acting in concert as of the date of this Agreement; provided, however, that if a person or group shall become the beneficial owner of 25% or more Board may at any time and from time to time and in the sole discretion of the combined Board, as the case may be, increase the voting power security ownership percentage threshold of this item (C) to an amount not exceeding forty percent (40%); or (D) the approval by the shareholders of the Company of any plan or proposal for the complete liquidation or dissolution of the Company or for the sale of all or substantially all of the assets of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
or (ii) During during any period of not more than two (2) consecutive years, individuals who, who at the beginning of such period, period constitute the Board together with Board, and any new director(s) director (other than a director designated by a person who shall have has entered into an agreement with the Company to effect a transaction described in clauses clause (i) or (iii) of this Section)) whose election by the Board or nomination for election by the Company's ’s stockholders was approved by a vote of at least two-thirds (-2/3) of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Companythereof.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 2 contracts
Samples: Incentive Stock Option Award Agreement (Foot Locker Inc), Nonstatutory Stock Option Award Agreement (Foot Locker Inc)
Change in Control. A “Change in Control” shall be deemed to have occurred as of the first day any one or more of the following conditions shall have been satisfied:
(a) Change in Control means and includes each of the following:
Any person (other than (i) the acquisitionCompany or any subsidiary of the Company, (ii) a corporation or other entity owned, directly or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") shareholders of the Company that represent 25% or more as of the combined voting power Effective Date in substantially the same proportions as their ownership of the Company's then outstanding voting securities, other than
(Aiii) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan subsidiary of the Company, or a trustee (iv) Century Focused Fund III, L.P. (“Century”) or other fiduciary holding securities any entity controlling, controlled by, or under an employee benefit plan of the Company) who is or common control with Century), becomes the beneficial owner, directly or indirectly, of securities of the Company, representing fifty-one percent (51%) or more of the combined voting power of the Company’s then outstanding securities; provided, however, that no crossing of such 51% threshold shall be a “Change in Control” if it is caused (A) solely as a result of an acquisition by the Company representing 9.5of its voting securities; or (B) solely as a result of an acquisition of the Company’s voting securities directly from the Company, in either case until such time thereafter as such person acquires additional voting securities other than directly from the Company and, after giving effect to such transaction, such person owns 51% or more of the then outstanding common stock or voting power of the Company's ; or
(b) A merger, consolidation, reorganization or share exchange, or sale of all or substantially all of the assets, of the Company, unless, immediately following such transaction, all of the following shall apply: (A) all or substantially all of the beneficial owners of the Company immediately prior to such transaction will beneficially own in substantially the same proportions, directly or indirectly, more than 51% of the combined voting power of the then outstanding voting securities carrying of the right to vote in elections of persons to the Board increases corporation or other entity resulting from such beneficial ownership transaction (including, without limitation, a corporation or other entity which, as a result of such securities by an additional five percentage points transaction, owns the Company or all or substantially all of the Company’s assets, either directly or through one or more thereby beneficially owning 14.5subsidiaries) (the “Successor Entity”), (B) no person will be the beneficial owner, directly or indirectly, of 51% or more of such securities; orthe combined voting power of the then outstanding voting securities of the Successor Entity, and (C) at least a majority of the members of the board of directors of the Successor Entity will be Incumbent Directors.
(ivc) The Board adopts All terms used in this Section 3.5 shall be interpreted in a resolution to manner consistent with the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company‘34 Act.
Appears in 2 contracts
Samples: Employment Agreement (Hooper Holmes Inc), Employment Agreement (Hooper Holmes Inc)
Change in Control. (a) Change in Control means and includes each of the following:
(i) the acquisition, directly or indirectly, acquisition by any "individual, entity or group (a “person" or "group" (as those terms are defined in Sections 3(a)(9”), 13(dincluding any “person” within the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act") and ”), of beneficial ownership (within the rules thereunder) meaning of "beneficial ownership" (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either (A) the then outstanding shares of common stock of the Company (the “Outstanding Common Stock”) or (B) the combined voting power of the then outstanding securities of the Company entitled to vote generally in the election of directors ("voting securities"the “Outstanding Voting Securities”); excluding, however, the following: (1) any acquisition directly from the Company (excluding any acquisition resulting from the exercise of an exercise, conversion or exchange privilege unless the security being so exercised, converted or exchanged was acquired directly from the Company), (2) any acquisition by the Company, (3) any acquisition by an employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company, or (4) any acquisition by any corporation pursuant to a transaction which complies with clauses (A), (B) and (C) of subsection (iii) of this Section 1(a); provided further, that for purposes of clause (2), if any person (other than the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person corporation controlled by the Company) shall become the beneficial owner of 20% or more of the Outstanding Common Stock or 20% or more of the Outstanding Voting Securities by reason of an acquisition by the Company, and such person shall, after such acquisition by the Company, become the beneficial owner of any additional shares of the Outstanding Common Stock or any additional Outstanding Voting Securities and such beneficial ownership is publicly announced, such additional beneficial ownership shall constitute a Change in Control; or
(ii) the cessation of Incumbent Directors to comprise at least a majority of the Board; or
(iii) the consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company (a “Corporate Transaction”); excluding, however, a Corporate Transaction pursuant to which (A) all or substantially all of the individuals or entities who are the beneficial owners, respectively, of the Outstanding Common Stock and the Outstanding Voting Securities immediately prior to such Corporate Transaction will beneficially own, directly or indirectly, more than 50% of, respectively, the outstanding shares of common stock, and the combined voting power of the outstanding securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Corporate Transaction (including, without limitation, a corporation which as a result of such transaction owns, directly or indirectly, the Company or by all or substantially all of the Company’s assets) in substantially the same proportions relative to each other as their ownership, immediately prior to such Corporate Transaction, of the Outstanding Common Stock and the Outstanding Voting Securities, as the case may be, (B) no person (other than: the Company; any employee benefit plan (or related trust) sponsored or maintained by the Company or any person corporation controlled by the Company; the corporation resulting from such Corporate Transaction; and any person which beneficially owned, or
(B) an acquisition of voting securities by the Company or a corporation ownedimmediately prior to such Corporate Transaction, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Companyindirectly, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 2520% or more of the Outstanding Common Stock or the Outstanding Voting Securities, as the case may be) will beneficially own, directly or indirectly, 20% or more of, respectively, the outstanding shares of common stock of the corporation resulting from such Corporate Transaction or the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company corporation entitled to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results generally in the Company's voting securities outstanding immediately before the transaction continuing to represent election of directors and (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")C) directly or indirectly, Incumbent Directors will constitute at least a majority of the combined voting power members of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more board of directors of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transactioncorporation resulting from such Corporate Transaction; or
(iv) the Company's stockholders approve consummation of a plan of complete liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 2 contracts
Samples: Director and Officer Indemnification Agreement (GWG Holdings, Inc.), Director and Officer Indemnification Agreement (NRC Group Holdings Corp.)
Change in Control. For purposes of this Agreement, a “Change in Control” shall have occurred if:
(a) Change in Control means and includes each a majority of the following:directors of the Company shall be persons other than persons: (A) for whose election proxies shall have been solicited by the Board, or (B) who are then serving as directors appointed by the Board to fill vacancies on the Board caused by death or resignation (but not by removal) or to fill newly-created directorships;
(ib) a majority of the acquisition, directly outstanding voting power of the Company shall have been acquired or indirectly, by any "person" or "group" beneficially owned (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of Rule 13d-3 under the Securities Exchange Act of 1934 1934, as amended, or any successor rule thereto) by any person (other than the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") Company, a subsidiary of the Company that represent 25% or more the Executive) or Group (as defined below), which Group does not include the Executive; or
(c) there shall have occurred:
(A) a merger or consolidation of the combined Company with or into another corporation (other than (1) a merger or consolidation with a subsidiary of the Company or (2) a merger or consolidation in which (aa) the holders of voting stock of the Company immediately prior to the merger as a class continue to hold immediately after the merger at least a majority of all outstanding voting power of the Company's then surviving or resulting corporation or its parent and (bb) all holders of each outstanding class or series of voting securitiesstock of the Company immediately prior to the merger or consolidation have the right to receive substantially the same cash, other than
(A) an acquisition by a trustee securities or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by property in exchange for their voting stock of the Company as all other holders of such class or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, orseries);
(B) an acquisition a statutory exchange of shares of one or more classes or series of outstanding voting securities by the Company or a corporation owned, directly or indirectly by the stockholders stock of the Company in substantially the same proportions as their ownership of the stock of the Companyfor cash, orsecurities or other property;
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company (in one transaction or a series of transactions); or
(D) the liquidation or dissolution of the Company; unless more than twenty-five percent (25%) of the voting stock (or the person that, as a result voting equity interest) of the transaction, controls, directly surviving corporation or indirectly, the Company corporation or owns, directly or indirectly, other entity acquiring all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (in the case of a merger, consolidation or disposition of assets) or of the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
its resulting parent corporation (B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence case of a Change in Control of statutory share exchange) is beneficially owned by the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, Executive or a trustee or other fiduciary holding securities under an employee benefit plan of Group that includes the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the CompanyExecutive.
Appears in 2 contracts
Samples: Severance Protection and Non Competition Agreement (Abc Bancorp), Severance Protection and Non Competition Agreement (Abc Bancorp)
Change in Control. A "Change in Control" shall be deemed to have occurred if there is a Change in Control of the Company or Cotton States Mutual Insurance Company ("Cotton States Mutual"), as defined below.
(a) A Change in of Control means and includes each of the followingCompany shall be deemed to have occurred at such time as:
(i) the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined the term is used in Sections 3(a)(9), 13(d) and 14(dSection 13(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) is or becomes the beneficial owner (as defined in rule 13(d)-3 of the Exchange Act) directly or indirectly of (A) securities entitled generally, (B) voting securities as defined in OCGA Section 33-14-17 or (C) membership rights to vote generally representing in the election of directors ("voting securities") of the Company that represent 25any case 20% or more of the combined voting power for election of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by directors of the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the successor of Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or;
(ii) During during any period of two consecutive years, years or less individuals who, who at the beginning of such periodperiod constituted the board of directors of Company cease, for any reason, to constitute at least a majority of the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with board of directors, unless the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders of each new director was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; orperiod;
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a there is any sale or other disposition of all or substantially all Company assets representing 50% of more of the Company's net book value of the assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company at the time of the transaction or generating 50% or more of the person that, profits of the Company over the three years preceding the transaction; or
(iv) there is any merger or consolidation to which Company is a party as a result of which the transaction, controls, directly or indirectly, persons who were the equity owners of Company or owns, directly or indirectly, all or substantially all immediately prior to the effective date of the Company's assets merger or otherwise succeeds to the business consolidation shall have beneficial ownership of less than 50% of the Company combined voting power for election of directors of the surviving corporation following the effective date of such merger or consolidation.
(b) A Change of Control of Cotton States Mutual shall be deemed to have occurred at such time as:
(i) any "person" (as the Company term is used in Section 13(d)(2) of the Exchange Act) is or such person, becomes the "Successor Entity")beneficial owner (as defined in rule 13(d)-3 of the Exchange Act) directly or indirectlyindirectly of (A) securities generally, (B) voting securities as defined in OCGA Section 33-14-17 or (C) membership rights to vote representing in any case 20% or more of the combined voting power for election of directors of Cotton States Mutual or any successor of Cotton States Mutual;
(ii) during any period of two consecutive years or less individuals who at the beginning of such period constituted the board of directors of Cotton States Mutual cease, for any reason, to constitute at least a majority of the board of directors, unless the election or nomination for election of each new director was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of the period;
(iii) there is any sale or other disposition of Cotton States Mutual assets representing 50% of more of the net book value of the assets of Cotton States Mutual at the time of the transaction or generating 50% or more of the profits of Cotton States Mutual over the three years preceding the transaction; or
(iv) there is any merger or consolidation to which Cotton States Mutual is a party as a result of which the persons who were the equity owners of Cotton States Mutual immediately prior to the effective date of the merger or consolidation shall have beneficial ownership of less than 50% of the combined voting power for election of directors of the Successor Entity's outstanding voting securities immediately after surviving corporation following the transaction, andeffective date of such merger or consolidation.
(Bc) after In the event the Company and Executive agree in writing prior to any event which would otherwise constitute a Change of Control, that such event shall not constitute a Change of Control, then for purposes of this Agreement there shall be no person such Change of Control upon that event.
(d) Notwithstanding anything in the foregoing to the contrary, no change in control shall be deemed to have occurred for purposes of this Agreement by virtue of any transaction (i) which results in the Executive, or a group beneficially owns voting securities representing 25of Persons which includes the Executive, acquiring, directly or indirectly, 20% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) either the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authorityCotton States Mutual's, which shall be exercised in its discretionas applicable, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definitionsecurities, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreementvoting securities, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
memberships; (ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Companyarranged, participated in, or caused by a trustee state insurance regulatory agency possessing appropriate jurisdiction on the grounds of failing or other fiduciary holding securities under an employee benefit plan deteriorating financial condition of either the Company) who is Company or becomes Cotton States Mutual which results in the beneficial owneracquisition, directly or indirectly, of securities of the Company representing 9.520% or more of the combined voting power of either the Company's then outstanding or Cotton States Mutual's, as applicable, securities, voting securities carrying or memberships by any Person; or (iii) which results in either the right Company or Cotton States Mutual, any subsidiary of either the Company or Cotton States Mutual or any profit sharing plan, employee stock ownership plan or employee benefit plan of either the Company or Cotton States Mutual or any of their subsidiaries (or any trustee of or fiduciary with respect to vote any such plan acting in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points capacity) acquiring, directly or more thereby beneficially owning 14.5indirectly, 20% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes combined voting power of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of either the Company, you will remain in the employ of the Company ('s or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age)Cotton States Mutual's, as defined in Subsection 3(a) applicable, securities or your termination by reason of death, or (z) the occurrence of a Change in Control of the Companyvoting securities.
Appears in 2 contracts
Samples: Management Agreement (Cotton States Life Insurance Co /), Management Agreement (Cotton States Life Insurance Co /)
Change in Control. (a) For purposes of this Agreement, Change in Control means and includes each the occurrence of any of the followingfollowing events:
(i) the acquisition, directly The accumulation in any number of related or indirectly, unrelated transactions by any "person" or "group" person of beneficial ownership (as those terms are defined such term is used in Sections 3(a)(9)Rule 13d-3, 13(d) and 14(d) of promulgated under the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act") and the rules thereunder”)) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% 50 percent or more of the combined total voting power of the Company's then outstanding ’s voting securitiesstock; provided that for purposes of this subsection (a), other than
a Change in Control will not be deemed to have incurred if the accumulation of 50 percent or more of the voting power of the Company’s voting stock results from any acquisition of voting stock (Ai) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or Company, (ii) by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company’s subsidiaries, or
or (Ciii) an acquisition of voting securities by any person pursuant to a merger, consolidation, reorganization or other transaction described in clause (iiia “Business Combination”) below that would not be cause a Change in Control under clause subsection (iii)ii) below; Notwithstanding or
(ii) A consummation of a Business Combination, unless, immediately following that Business Combination, substantially all the foregoing, neither persons who were the beneficial owners of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition voting stock of the Company's securities by the Company which causes the Company's voting securities immediately prior to that Business Combination beneficially owned by a person own, directly or group to represent 25% or more indirectly, at least 50 percent of the combined voting power of the voting stock of the entity resulting from that Business Combination (including, without limitation, an entity that as a result of that transaction owns the Company's then outstanding voting securities; provided, howeveror all or substantially all of the Company assets, that if a person either directly or group shall become the beneficial owner of 25% through one or more subsidiaries) in substantially the same proportions relative to each other as the ownership, immediately prior to that Business Combination, of the combined voting power stock of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or;
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a A sale or other disposition of all or substantially all of the Company's assets or of the Company except pursuant to a Business Combination that would not cause a Change in Control under subsection (zii) the acquisition of assets or stock of another entity, in each case other above;
(iv) At any time less than a transaction
(A) which results in majority of the Company's voting securities outstanding immediately before members of the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities Board of Directors of the Company or any entity resulting from any Business Combination are Incumbent Board Members.
(v) Approval by the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business shareholders of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least of a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a complete liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, except pursuant to determine conclusively whether a Business Combination that would not cause a Change in Control under subsection (ii) above; or
(vi) Any other transaction or event that the Board of Directors of the Company has occurred pursuant to the above definition, and the date of the occurrence of such identifies as a Change in Control and any incidental matters relating theretofor purposes of this Agreement.
(bvii) For purposes of this Agreement, an “Incumbent Board Member” shall mean any individual who either is (a) a "Potential Change in Control member of the Company Board of Directors as of the Effective Date or (b) a member who becomes a member of the Company" shall be deemed ’s Board of Directors subsequent to have occurred if the following occur:
Effective Date of this Agreement, whose election or nomination by the Company’s shareholders, was approved by a vote of at least a majority of the then Incumbent Board Members (i) The Company enters into a written agreement either by specific vote or letter of intent, the consummation of which would result in the occurrence by approval of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities proxy statement of the Company representing 9.5% in which that person is named as a nominee for director, without objection to that nomination), but excluding, for that purpose, any individual whose initial assumption of office occurs as a result of an actual or more threatened election contest (within the meaning of Rule 14A-11 of the Company's then outstanding voting securities carrying the right to vote in elections of persons Exchange Act) with respect to the Board increases such beneficial ownership election or removal of such securities directors or other actual threatened solicitation of proxies or consents by an additional five percentage points or more thereby beneficially owning 14.5% or more on behalf of such securities; or
(iv) The Board adopts the person other than a resolution to the effect that, for board of directors. For purposes of this Agreement, a Potential Change in Control person means any individual, corporation, partnership, limited liability company, joint venture, incorporated or unincorporated association, joint-stock company, trusts, unincorporated organization or any other entity of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Companyany kind.
Appears in 2 contracts
Samples: Employment Agreement (PRGX Global, Inc.), Employment Agreement (PRGX Global, Inc.)
Change in Control. (a) For purposes of this Agreement, a “Change in Control means and includes each of the following:
Company” shall be deemed to have occurred if (iA) there shall be consummated (1) any consolidation or merger of the Company or Bancorp in which the Company or Bancorp, as the case may be, is not the continuing or surviving corporation (unless the shareholders of Company or Bancorp, as the case may be, immediately before such merger own immediately after such merger more than a majority of the voting securities of the surviving entity), or pursuant to which shares of the Company’s or Bancorp’s common stock would be converted in whole or in part into cash, securities or other property, or (2) any sale, lease, exchange or transfer (in one transaction or a series of related transactions) of all or substantially all the assets of the Company or Bancorp, or (B) the acquisitionshareholders of the Company or Bancorp shall approve any plan or proposal for the liquidation or dissolution of the Company or Bancorp, directly or indirectly, by (C) any "“person" or "group" ” (as those terms are defined such term is used in Sections 3(a)(9), 13(d13(d)(3) and 14(d14(d)(2) of the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act") and ”)), other than the rules thereunder) Company or Bancorp, or a subsidiary thereof, or any employee benefit plan sponsored by the Company or Bancorp, or a subsidiary thereof, or a corporation owned, directly or indirectly, by the shareholders of "the Company or Bancorp in substantially the same proportions as their ownership of stock of the Company or Bancorp, shall become the beneficial ownership" owner (as determined pursuant to within the meaning of Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25or Bancorp representing 20% or more of the combined voting power of the Company's ’s or Bancorp’s then outstanding voting securities, other than
securities ordinarily (Aand apart from rights accruing in special circumstances) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying having the right to vote in elections the election of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts directors as a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event result of a Potential Change in Control of the Companytender or exchange offer, you will remain in the employ of the Company (open market purchases, privately negotiated purchases or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Companyotherwise.
Appears in 2 contracts
Samples: Employment Agreement (Heritage Oaks Bancorp), Change in Control Agreement (Heritage Oaks Bancorp)
Change in Control. (a) For purposes of this Agreement, a Change in Control means and includes each of the following:Company shall have occurred if
(i) the acquisition, directly or indirectly, by any "person" or "group" person (as those terms are defined in Section 3(a)(9) of the Exchange Act and as used in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of thereof), excluding the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any Subsidiary and any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled Subsidiary (including any trustee of such plan acting as trustee) (the Company, all Subsidiaries, and such employee benefit plans and trustees acting as trustees being hereafter referred to as the "Company Group"), but including a 'group' as defined in Section 13(d)(3) of the Exchange Act (a "Person"), becomes the beneficial owner of shares of the Company having at least forty percent (40%) of the total number of votes that may be cast for the election of directors of the Company (the "Voting Shares"); provided that no Change of Control will occur as a result of an acquisition of stock by the Company or by any employee benefit plan (or related trust) sponsored or maintained by Group which increases, proportionately, the Company or any person controlled by stock representing the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders power of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more such Person above forty percent (40%) of the combined voting power of the Company's then outstanding voting securities; provided, however, and provided further that if a person or group shall become the such Person acquires beneficial owner ownership of 25% or stock representing more than forty percent (40%) of the combined voting power of the Company by reason of share purchases by the Company Group, and after such share purchases by the Company Group acquires any additional shares representing voting power of the Company's , then outstanding voting securities by reason a Change of share acquisitions by Control shall occur;
(ii) the shareholders of the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of shall approve any additional voting securities merger or other business combination of the Company, then such acquisition shall constitute sale of the Company's assets or combination of the foregoing transactions (a Change "Transaction") other than a Transaction involving only the Company and one or more of its Subsidiaries, or a Transaction immediately following which the shareholders of the Company immediately prior to the Transaction continue to have a majority of the voting power in Controlthe resulting entity; or
(iiiii) During within any period 24-month period, the persons who were directors of two consecutive years, individuals who, at the Company immediately before the beginning of such period, constitute period (the Board together with "Incumbent Directors") shall cease (for any new director(s) (reason other than death) to constitute at least a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) majority of this Section) whose election by the Board or nomination for election by the board of directors of any successor to the Company's stockholders , provided that any director who was approved by not a vote director as of the effective date of this Plan shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of or with the approval of, at least two-thirds of the directors who then still in office who qualified as Incumbent Directors either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding actually or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes prior operation of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior iii); and provided that any director elected to the consummation of the transaction; or
(iv) the Company's stockholders approve Board to avoid or settle a liquidation threatened or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") actual proxy context shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall no event be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces be an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the CompanyIncumbent Director.
Appears in 2 contracts
Samples: Employment Agreement (Lodgian Inc), Employment Agreement (Lodgian Inc)
Change in Control. (a) “Change in Control means and includes each Control” shall mean (1) any merger by the Company into another corporation or corporations which results in the stockholders of the following:
Company immediately prior to such transaction owning less than fifty (i50%) percent of the surviving Corporation; (2) any acquisition (by purchase, lease or otherwise) of all or substantially all of the assets of the Company by any person, corporation or other entity or group thereof acting jointly in accordance with Section 409A of the IRC; (3) the acquisitionacquisition of beneficial ownership, directly or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of voting securities entitled to vote generally in the election of directors ("voting securities") of the Company (defined as Common Stock of the Company or any securities having voting rights that represent 25% the Company may issue in the future) and rights to acquire voting securities of the Company (defined as including, without limitation, securities that are convertible into voting securities of the Company (as defined above) and rights, options warrants and other agreements or arrangements to acquire such voting securities) by any person, corporation or other entity or group thereof acting jointly, in such amount or amounts as would permit such person, corporation or other entity or group thereof acting jointly to elect a majority of the members of the Board of the Company, as then constituted; or (4) the acquisition of beneficial ownership, directly or indirectly, of voting securities and rights to acquire voting securities having voting power equal to forty (40%) percent or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's ’s then outstanding voting securities by reason any person, corporation or other entity or group thereof acting jointly unless such acquisition as is described in this clause (4) is expressly approved by resolution of share acquisitions by the Board passed upon affirmative vote of not less than a majority of the Board and adopted at a meeting of the Board held not later than the date of the next regularly scheduled or special meeting held following the date the Company as described above obtains actual knowledge of such acquisition (which approval may be limited in purpose and shalleffect solely to affecting the rights of Employee under this Agreement). Notwithstanding the preceding sentence, after such share acquisitions by any transaction that involves a mere change in identity form or place of organization within the Company, become the beneficial owner meaning of any additional voting securities Section 368(a)(1)(F) of the CompanyIRC, then such acquisition or a transaction of similar effect, shall not constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 2 contracts
Samples: Employment Agreement (Sachem Capital Corp.), Employment Agreement (Sachem Capital Corp.)
Change in Control. (a) Change in Control means and includes each Any of the following:
: (i) a merger of the acquisitionCompany with another entity, directly a consolidation involving the Company, or indirectlythe sale of all or substantially all of the assets of the Company to another entity if, by in any "person" such case, (A) the holders of equity securities of the Company immediately prior to such transaction or event do not beneficially own immediately after such transaction or event, in substantially the same proportions that they owned the equity securities of the Company immediately prior to such transaction or event, 50% or more of the common equity of the resulting entity, (B) the holders of equity securities of the Company immediately prior to such transaction or event do not beneficially own immediately after such transaction or event, in substantially the same proportions that they owned the equity securities of the Company immediately prior to such transaction or event, equity securities of the resulting entity entitled to 50% or more of the votes then eligible to be cast in the election of directors generally (or comparable governing body) of the resulting entity, or (C) the persons who were members of the Board immediately prior to such transaction or event shall not constitute at least a majority of the board of directors of the resulting entity immediately after such transaction or event, (ii) shareholder approval of a plan of dissolution or liquidation of the Company, (iii) when any person or entity, including a "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(dcontemplated by section 13(d)(3) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securities), other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any affiliate of the Company), acquires or gains ownership or control (including, without limitation, power to vote) who of more than 30% of the combined voting power of the outstanding securities of, (A) if the Company has not engaged in a merger or consolidation, the Company, or (B) if the Company has engaged in a merger or consolidation, the resulting entity, or (iv) a change in the composition of the Board, as a result of which fewer than a majority of the supervisory directors are Incumbent Directors. For purposes of the preceding sentence, (1) "resulting entity" in the context of a transaction or event that is a merger, consolidation or becomes sale of all or substantially all assets shall mean the beneficial owner, directly surviving entity (or indirectly, acquiring entity in the case of securities an asset sale) unless the surviving entity (or acquiring entity in the case of an asset sale) is a subsidiary of another entity and the holders of common equity of the Company representing 9.5% receive capital stock of such other entity in such transaction or more event, in which event the resulting entity shall be such other entity, (2) subsequent to the consummation of a merger or consolidation that does not constitute a Change in Control, the term "Company" shall refer to the resulting entity and the term "Board" shall refer to the board of directors (or comparable governing body) of the Company's then outstanding voting securities carrying resulting entity, and (3) "Incumbent Directors" shall mean directors who either (a) are directors of the right to vote in elections Company as of persons February 28, 2003, or (b) are elected, or nominated for election, to the Board increases such beneficial ownership with the affirmative votes of at least two-thirds of the Incumbent Directors at the time of such securities election or nomination, but Incumbent Director shall not include an individual whose election or nomination occurs as a result of either (x) an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or (y) an actual or threatened solicitation of proxies or consents by an additional five percentage points or more thereby beneficially owning 14.5% or more on behalf of such securities; or
(iv) The Board adopts a resolution to person other than the effect thatBoard. Notwithstanding the foregoing, for purposes of this AgreementSection 2.7, under no circumstances shall any of the foregoing events constitute a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, unless such event also constitutes a change in the event of a Potential Change in Control ownership or effective control of the Company, you will remain or in the employ ownership of a substantial portion of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control assets of the Company, (ywithin the meaning of section 409A(a)(2)(A)(v) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the CompanyCode (and applicable administrative guidance thereunder).
Appears in 2 contracts
Samples: Supplemental Executive Retirement Plan (Core Laboratories N V), Supplemental Executive Retirement Plan (Core Laboratories N V)
Change in Control. (a) Change in Control means and includes each the occurrence of any of the following:
: any person (i) within the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined in Sections meaning of Section 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act"”)), other than CVC, OTPP, or any of their Affiliates or Qualified Transferees (as such terms are defined in the Stockholders Agreement), including any group (within the meaning of Rule 13d-5(b) and under the rules thereunder) of "Exchange Act)), acquires “beneficial ownership" ” (as determined pursuant to within the meaning of Rule 13d-3 under the Exchange Act) ), directly or indirectly, of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25Holding representing more than 50% or more of the combined voting power Voting Power (as defined below) of Holding’s securities; within any 24-month period commencing after an initial public offering of the Company's then outstanding voting securitiesCommon Stock of Holding, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition persons who were directors of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, Holding at the beginning of such period, period (the “Incumbent Directors”) shall cease to constitute at least a majority of the Board together with or the board of directors of any new director(s) (other than a successor to Holding, provided that any director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) elected to the Board, or (iii) of this Section) whose election by the Board or nomination nominated for election by the Company's stockholders was approved election, by a vote of at least two-thirds majority of the directors Incumbent Directors then still in office who either were directors or (ii) designated to serve on the Board by CVC or OTPP pursuant to the Stockholder’s Agreement shall be deemed to be an Incumbent Director for purposes of this definition of Change in Control; the stockholders of Holding, if at the beginning of the two year period or whose election or nomination for election was previously so approvedtime in question Holding is a stock company, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) approve a merger, consolidation, reorganizationshare exchange, or business combination or (y) a division, sale or other disposition of all or substantially all of the Company's assets or of Holding (z) a “Corporate Event”), and immediately following the acquisition consummation of assets or stock which the stockholders of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding Holding immediately before the transaction continuing prior to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controlssuch Corporate Event do not hold, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power Voting Power of (x) in the case of a merger or consolidation, the surviving or resulting corporation, (y) in the case of a share exchange, the acquiring corporation or (z) in the case of a division or a sale or other disposition of assets, each surviving, resulting or acquiring corporation which, immediately following the relevant Corporate Event, holds more than 50% of the Successor Entity's outstanding voting securities consolidated assets of Holding immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transactionsuch Corporate Event; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of any other event occurs which the Board (declares to be a Change in Control. Notwithstanding the "Committee") shall have full and final authorityforegoing, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall not be deemed to have occurred if the following occur:
(ia) The Company enters into merely as a written agreement or letter result of intent, the consummation of which would result in the occurrence of a Change in Control an underwritten offering of the Company;
(ii) Any person equity securities of Holding where no Person (including any group (within the Companymeaning of Rule 13d-5(b) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control under the Exchange Act)) acquires more than 50% of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of interests in such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 2 contracts
Samples: Employment Agreement (Ws Financing Corp), Employment Agreement (Ws Financing Corp)
Change in Control. A. For purpose of the options, "Change in Control" means: (a) Change in Control means and includes each the consummation of the following:
(i) the acquisition, directly a merger or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") consolidation of the Company that represent 25with or into another entity or any other transaction, the stockholders of the Company immediately prior to such merger, consolidation or other transaction own or beneficially own immediately after such merger, consolidation or other transaction 50% or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of each of (i) the Company, then such acquisition shall constitute a Change in Control; or
continuing or surviving entity and (ii) During any period of two consecutive years, individuals who, at the beginning direct or indirect parent entity of such period, constitute the Board together with any new director(s) continuing or surviving entity; (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iiib) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a mergersale, consolidation, reorganization, or business combination or (y) a sale transfer or other disposition of all or substantially all of the Company's assets to a Person which is not owned or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either controlled by remaining outstanding or by being converted into voting securities of the Company or its stockholders immediately prior to such sale, transfer or other disposition; (c) individuals who, immediately following the person thateffective date of this Agreement, as a result of constitute the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company Board (the Company or such person, the "Successor EntityIncumbent Board")) directly or indirectly, cease for any reason to constitute at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor EntityBoard; provided, however, that no person any individual becoming a director thereafter whose election, or group nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be treated for purposes of this clause (B) considered as beneficially owning 25% or more of combined voting power though such individual were a member of the Successor Entity solely Incumbent Board; or (d) any transaction as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (which any Person is the "Committee") shall have full and final authority, which shall be exercised Beneficial Owner" (as defined in its discretion, to determine conclusively whether a Change in Control of Rule 13d-3 under the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial ownerExchange Act), directly or indirectly, of securities of the Company representing 9.5at least 20% or more of the total voting power represented by the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for . For purposes of this Agreement, a Potential definition of Change in Control of Control, the Company has occurredterm "Persons" means, acting individually or as a group, an individual or a corporation, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other entity. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.Exhibit B Job Description
Appears in 2 contracts
Samples: Consultant Engagement Agreement (Sun River Energy, Inc), Consultant Engagement Agreement (Sun River Energy, Inc)
Change in Control. No benefits shall be payable hereunder unless an event as set forth below, shall have occurred (a) hereinafter called a "Change in Control means and includes each of the following:Control"):
(i) the acquisitionAny person including any individual, directly firm, partnership or indirectlyother entity, by any "person" or "group" together with all Affiliates and Associates (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) by ss.240.12b-2 of the regulations promulgated under the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of such person, directly or indirectly acquires securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of the Company's then outstanding securities representing twenty percent (20%) or more of the voting securitiessecurities of the Company, other thansuch person being hereinafter referred to as an Acquiring Person; or, but excluding:
(A) an acquisition by a trustee or other fiduciary holding securities under any an employee benefit plan (or related trust) sponsored or maintained by of the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by Subsidiary of the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition the Company or any Subsidiary of voting the Company, is or becomes the Beneficial Owner (as defined in Rule 13d-3 under the Exchange Act),or
(D) a person who acquires securities of the Company directly from the Company pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was has been approved by a vote of at least two-thirds a majority of the directors then still in office who either were directors at Incumbent Board, or (ii) Individuals who, on the beginning of date hereof, constitute the two year period or whose election or nomination for election was previously so approved, Incumbent Board shall cease for any reason to constitute a majority thereofof the Board; or
(iii) the consummation by The stockholders of the Company (whether directly involving approve a merger or consolidation of the Company or indirectly involving the Company through one or more intermediaries) of (x) a mergerwith any other corporation, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results merger or consolidation that would result in the Company's voting securities of the Company outstanding immediately before the transaction prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result surviving entity) at least 80% of the transaction, controls, directly or indirectly, combined voting power of the voting securities of the Company or ownssuch other surviving entity outstanding immediately after such merger or consolidation, directly or indirectly, the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Companyassets.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 2 contracts
Samples: Employment Agreement (Deep Field Technologies, Inc.), Employment Agreement (Deep Field Technologies, Inc.)
Change in Control. (a) A Change in Control means and includes each shall mean any of the following:
: (i) (A) the acquisition, directly making of a tender or indirectly, exchange offer by any "person" person or "group" entity or group of associated persons or entities (as those terms are defined in Sections 3(a)(9), 13(dwithin the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934 (a “Person”) (other than the "Exchange Act"Company or its Affiliates) and for shares of common stock of the rules thereunder) of "beneficial ownership" (as determined Company pursuant to Rule 13d-3 under the Exchange Act) which purchases are made of securities entitled to vote generally in the election of directors representing at least twenty percent ("voting securities"20%) of the total combined voting power of the Company’s then issued and outstanding voting securities; (B) the merger or consolidation of the Company that with, or the sale or disposition of all or substantially all of the assets of the Company to, any Person other than (a) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent 25% (either by remaining outstanding or by being converted into voting securities of the surviving or parent entity) fifty percent (50%) or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by of the Company or any person controlled by such surviving or parent entity outstanding immediately after such merger or consolidation; or (b) a merger or capitalization effected to implement a recapitalization of the Company or by any employee benefit plan (or related trustsimilar transaction) sponsored in which no Person is or maintained by becomes the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation ownedbeneficial owner, directly or indirectly by (as determined under Rule 13d-3 promulgated under the stockholders Securities Exchange Act of 1934), of securities representing more than the amounts set forth in (C) below; (C) the acquisition of direct or indirect beneficial ownership (as determined under Rule 13d-3 promulgated under the Securities Exchange Act of 1934), in the aggregate, of securities of the Company in substantially the same proportions as their ownership of the stock of the Company, or
representing twenty percent (C20%) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the total combined voting power of the Company's ’s then issued and outstanding voting securitiessecurities by any Person acting in concert as of the date of this Agreement; provided, however, that if a person or group shall become the beneficial owner of 25% or more Board may at any time and from time to time and in the sole discretion of the combined Board, as the case may be, increase the voting power security ownership percentage threshold of this item (C) to an amount not exceeding forty percent (40%); or (D) the approval by the shareholders of the Company of any plan or proposal for the complete liquidation or dissolution of the Company or for the sale of all or substantially all of the assets of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
or (ii) During during any period of not more than two (2) consecutive years, individuals who, who at the beginning of such period, period constitute the Board together with Board, and any new director(s) director (other than a director designated by a person who shall have has entered into an agreement with the Company to effect a transaction described in clauses clause (i) or (iii) of this Section)) whose election by the Board or nomination for election by the Company's ’s stockholders was approved by a vote of at least two-thirds (?) of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Companythereof.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 2 contracts
Samples: Incentive Stock Option Award Agreement (Foot Locker Inc), Nonstatutory Stock Option Award Agreement (Foot Locker Inc)
Change in Control. (a) Change Notwithstanding anything to the contrary contained in Control means and includes each of the following:
(i) the acquisitionSection 7.2 hereof, directly or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally following a change in the election of directors ("voting securities") ownership, or effective control of the Company that represent 25% or more in the ownership of the combined voting power a substantial portion of the Company's then outstanding voting securitiesassets (any one of which shall be referred to herein as "Change in Control"), other than
in the event Employee's employment is terminated either voluntarily or involuntarily within three (A3) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by months of the Change in Control, the Company or any person controlled by shall immediately pay to Employee the Company or by any employee benefit plan (or related trust) sponsored or maintained by Base Salary, Employee's accrued vacation and reimbursable expenses through the Company or any person controlled by the Company, or
(B) an acquisition date of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause and an amount equal to three (iii3) times the total compensation received by Employee during the immediately preceding calendar year (the "Change in Control Bonus"); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that that, if a person or group shall become applicable, the beneficial owner of 25% or more amount of the combined voting power Change in Control Bonus shall be reduced so that no portion of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities Change in Control Bonus shall be deemed to be an "excess parachute payment" under Section 280G of the CompanyInternal Revenue Code of 1986, then such acquisition as amended, or any replacement statute. The determination of the existence of an "excess parachute payment" shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election be made by the Company's stockholders was approved by a vote of at least two-thirds of independent accountants who prepare and file the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination federal income tax returns for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) . In addition, any options to purchase the acquisition of assets or common stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or previously granted to Employee and not otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group vested shall be treated for purposes fully vested as of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For Control. The Company shall pay the expenses incurred by such accountants pursuant to this Section. Generally, for the purposes of this Agreement, a Section: (i) "Potential Change change in Control the ownership of the Company" shall be deemed to have occurred if mean the following occur:
date that any person or persons acting as a group, acquires ownership of the capital stock of the Company and the acquired capital stock together with capital stock held by such person or group, gives the acquiring person or group possession of more than fifty percent (i50%) The Company enters into a written agreement of the total fair market value or letter the total voting power of intent, the consummation of which would result in the occurrence of a Change in Control capital stock of the Company;
; (ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change "change in Control effective control of the Company;
" shall mean that either: (iiiA) Any any one person, or more than one person acting as a group, would acquire (other than an employee benefit plan or had acquired during the twelve (12) month period ending on the date of the Company, most recent acquisition by such person or a trustee or other fiduciary holding securities under an employee benefit plan persons) ownership of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities capital stock of the Company representing 9.5% possessing fifty percent (50%) or more of the total voting power of the capital stock of the Company; or (B) a majority of the members of the Board was replaced during any twelve (12) month period by directors whose appointment or election was not endorsed by a majority of the members of the Board prior to the date of such appointment or election; and (iii) "change in ownership of a substantial portion of the Company's then outstanding voting securities carrying assets" shall mean the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points date on which one person, or more thereby beneficially owning 14.5% than one person acting as a group, would acquire (or had acquired during the twelve (12) - month period ending on the date of the most recent acquisition by such person or persons) assets from the Company that have a total fair market value equal to, or more than, thirty three and one-third percent (33-1/3%) of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes total fair market value of this Agreement, a Potential Change in Control all of the assets of the Company has occurredimmediately prior to such acquisitions. You agree that, subject to All determinations of the terms and conditions applicability of this Agreement, in Section shall be made consistent with the event of a Potential Change in Control of Proposed Regulations Section 1.280G-1 promulgated by the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of deathInternal Revenue Service, or (z) the occurrence of a Change in Control of the Companyany successor regulations.
Appears in 2 contracts
Samples: Employment Agreement (Arv Assisted Living Inc), Employment Agreement (Arv Assisted Living Inc)
Change in Control. (a) For purposes of this Section 4, a "Change in Control means and includes each Control" of the Company will mean the following:
(ia) the acquisition, directly or indirectly, The acquisition by any "person" individual, entity or "group" group (as those terms are defined in Sections 3(a)(9), 13(dwithin the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act) (a "Person") and of beneficial ownership (within the rules thereunder) meaning of "beneficial ownership" (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 2550% or more of the combined voting power of the Company's then then-outstanding voting securitiessecurities of the Company entitled to vote generally in the election of directors; provided, other than
however, that for purposes of this Section 4.1(a), the following acquisitions shall not constitute a Change of Control: (Ai) an any acquisition directly from the Company, (ii) any acquisition by a trustee or other fiduciary holding securities under the Company, (iii) any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person corporation controlled by the Company, or
or (Biv) an any acquisition of voting securities by the Company or a any corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause which complies with clauses (i), (ii) and (iii) below that would not be a Change in Control under clause (iiiof Section 4.1(c); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(iib) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, The Incumbent Directors cease for any reason to constitute at least a majority thereofof the Board; or
(iiic) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) Consummation of (x) a merger, consolidation, reorganization, merger or business combination consolidation or (y) a sale or other disposition of all or substantially all of the Company's assets or of the Company (z) the acquisition of assets or stock of another entitya "Business Combination"), in each case other than a transaction
case, unless, following such Business Combination, (Ai) which results in all or substantially all of the Company's individuals and entities who were the beneficial owners of the combined voting securities power of the then-outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or entitled to vote generally in the person that, as a result election of the transaction, controlsdirectors immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) either directly or indirectlythrough one or more subsidiaries) in substantially the same proportions as their ownership, at least a majority immediately prior to such Business Combination, of the combined voting power of the Successor Entity's then-outstanding voting securities immediately after entitled to vote generally in the transactionelection of directors, and
(Bii) after which no person Person (excluding any corporation resulting from such Business Combination or group any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns voting securities representing 25owns, directly or indirectly, 50% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined then-outstanding voting power of the Successor Entity solely as a result of the voting power held securities entitled to vote generally in the Company election of directors of such corporation, except to the extent that such ownership existed prior to the consummation Business Combination and (iii) at least a majority of the transactionmembers of the board of directors of the corporation resulting from such Business Combination were Incumbent Directors at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination; or
(ivd) Approval by the Company's stockholders approve shareholders of the Company of a complete liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 2 contracts
Samples: Executive Stock Option Agreement (LSC Inc), Executive Stock Option Agreement (LSC Inc)
Change in Control. (a) If Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason within two years following a Change in Control means Control, the termination of her employment shall be deemed to have occurred in the context of a Change in Control, and includes each she shall be entitled to the separation benefits set forth in Section 10(c); provided, however, that if the separation benefits would result in an excess parachute payment under Internal revenue Code Section 280G(a), the separation benefits shall be reduced so as not to result in an excess parachute payment.
(b) For purposes of this Agreement, a “Change in Control” of the Company shall mean any of the following:
(i) the acquisition, directly or indirectly, by any "Any “person" or "group" ” (as those terms are defined in Sections 3(a)(9), 13(d) and 14(dSection 13(h)(8)(E) of the Securities Exchange Act of 1934 (the "Exchange Act") and ), other than the rules thereunder) Company or any of "its subsidiaries or any employee benefit plan of the Company or any of its subsidiaries, becomes the “beneficial ownership" owner” (as determined pursuant to defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (or any successor to all or substantially all of the Company’s assets) representing more than 30% of the combined voting power of the Company’s (or such successor’s) then outstanding voting securities that may be cast for the election of directors of the Company (other than as a result of an issuance of securities initiated by the Company (or such successor) in the ordinary course of business);
(ii) As the result of, or in connection with, any cash tender or exchange offer, merger or other business combination or contested election, or any combination of the foregoing transactions, less than 51% of the combined voting power of the then outstanding securities of the Company or any successor company or entity entitled to vote generally in the election of the directors of the Company or such other corporation or entity after such transaction are held in the aggregate by the holders of the Company’s securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% immediately prior to such transaction;
(iii) All or more substantially all of the combined voting power assets of the Company are sold, exchanged or otherwise transferred;
(iv) The Company’s stockholders approve a plan of liquidation or dissolution of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(iiv) During any 12-month period within the Term, Continuing Directors cease for any reason to constitute at least a majority of two consecutive yearsthe Board. For this purpose, individuals who, a “Continuing Director” is any person who at the beginning of such periodthe Term was a member of the Board, constitute or any person first elected to the Board together with during the Term whose election, or the nomination for election by the Company’s shareholders, was approved by a vote of at least two-thirds of the Continuing Directors then in office, but excluding any new director(sperson (A) initially appointed or elected to office as result of either an actual or threatened election and/or proxy contest by or on behalf of any “person” or “group” (within the meaning of Section 13(d) of the Exchange Act) other than a director the Board, or (B) designated by a person any “person” or “group” (within the meaning of Section 13(d) of the Exchange Act) ) who shall have has entered into an agreement with the Company to effect a transaction described in clauses (iSection 11(b)(i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) ). For the Company's stockholders approve a liquidation or dissolution avoidance of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authoritydoubt, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall not be deemed to have occurred if the following occur:
under subparagraphs (ii)-(v) The Company enters into above unless such event also constitutes a written agreement or letter of intent, the consummation of which would result “change in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who control event” as such term is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.Section 409A.
Appears in 2 contracts
Samples: Executive Employment Agreement (Delek Logistics Partners, LP), Executive Employment Agreement (Delek US Holdings, Inc.)
Change in Control. (a) Change A "change in Control means and includes each control of the followingCompany" shall be deemed to have occurred if:
(i) the acquisition, directly or indirectly, by a. any "Person," which shall mean a "person" or "group" (as those terms are defined such term is used in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of other than the Company's then outstanding voting securities, other than
(A) an acquisition by a any trustee or other fiduciary holding securities under any an employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by of the Company, or
(B) an acquisition of voting securities by the Company or a corporation any company owned, directly or indirectly indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company), or
is or becomes the "beneficial owner" (C) an acquisition as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25representing 30% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if this paragraph (a) shall not apply to any Person who becomes such a person or group shall become the beneficial owner of 25such Company securities pursuant to an agreement with the Company approved by the Company's Board of Directors (the "Board"), entered into before such Person has become such a beneficial owner of Company securities representing 5% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; orsecurities;
(ii) During b. during any period of two 24 consecutive yearsmonths (not including any period prior to November 13, individuals who1996), individuals, who at the beginning of such period, period constitute the Board together with Board, and any new director(s) director (other than a director designated by a person Person who shall have has entered into an agreement with the Company to effect a transaction described in clauses paragraph a., c. (i2) or (iii) d. of this Section) whose election by the Board Board, or whose nomination for election by the Company's stockholders stockholders, was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at before the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority thereof; or
c. the stockholders of the Company approve (iii1) a plan of complete liquidation of the Company or (2) the consummation sale or disposition by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) unless the acquisition acquirer of the assets or stock its directors shall meet the conditions for a merger or consolidation in subparagraphs d. (1) or d. (2); or
d. the stockholders of another entity, in each case the Company approve a merger or consolidation of the Company with any other than company other than: (1) such a transaction
(A) merger or consolidation which results would result in the Company's voting securities of the Company outstanding immediately before the transaction prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")surviving entity) directly or indirectly, at least a majority more than 70% of the combined voting power of the Successor EntityCompany's or such surviving entity's outstanding voting securities immediately after the transaction, and
such merger or consolidation; or (B2) after which no person such a merger or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of consolidation which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities directors of the Company representing 9.5who were directors immediately prior thereto continuing to constitute at least 50% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control directors of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (surviving entity immediately after such merger or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Companyconsolidation.
Appears in 2 contracts
Samples: Executive Separation Agreement (Quaker Oats Co), Executive Separation Agreement (Quaker Oats Co)
Change in Control. (a) For purposes of this Agreement, a “Change in Control means and includes each of the followingControl” will occur:
(iA) Upon the acquisitionacquisition by any individual, entity or group, including any Person (as defined in the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”)), of beneficial ownership (as defined in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, by any "person" or "group" of twenty (as those terms are defined in Sections 3(a)(9), 13(d20) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% percent or more of the combined voting power of the Company's then outstanding voting securitiescapital stock of Company that by its terms may be voted on all matters submitted to stockholders of Company generally (“Voting Stock”); provided, other thanhowever, that the following acquisitions shall not constitute a Change in Control:
1) Any acquisition directly from Company (Aexcluding any acquisition resulting from the exercise of a conversion or exchange privilege in respect of outstanding convertible or exchangeable securities unless such outstanding convertible or exchangeable securities were acquired directly from Company);
2) an Any acquisition by Company;
3) Any acquisition by an employee benefit plan (or related trust) sponsored or maintained by Company or any corporation controlled by Company; or
4) Any acquisition by any corporation pursuant to a trustee reorganization, merger or consolidation involving Company, if, immediately after such reorganization, merger or consolidation, each of the conditions described in clauses (1), (2) and (3) of subparagraph 3(a)(iii)(B) below shall be satisfied; and provided further that, for purposes of clause (2) immediately above, if (i) any Person (other fiduciary holding securities under than Company or any employee benefit plan (or related trust) sponsored or maintained by the Company or any person corporation controlled by the Company or by any employee benefit plan (or related trustCompany) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% twenty (20) percent or more of the combined voting power of the Company's then outstanding voting securities Voting Stock by reason of share acquisitions an acquisition of Voting Stock by the Company as described above Company, and (ii) such Person shall, after such share acquisitions acquisition by the Company, become the beneficial owner of any additional voting securities shares of the CompanyVoting Stock and such beneficial ownership is publicly announced, then such acquisition additional beneficial ownership shall constitute a Change in Control; or
(iiB) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) Upon the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, merger or business combination consolidation of Company, or (y) a sale sale, lease, exchange or other disposition transfer of all or substantially all of the assets of Company's assets ; excluding, however, any such reorganization, merger, consolidation, sale, lease, exchange or (zother transfer with respect to which, immediately after consummation of such transaction:
1) All or substantially all of the acquisition beneficial owners of assets or stock the Voting Stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities Company outstanding immediately before the prior to such transaction continuing continue to represent beneficially own, directly or indirectly (either by remaining outstanding or by being converted into voting securities of the Company or the person thatentity resulting from such transaction), as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company more than fifty (the Company or such person, the "Successor Entity")50) directly or indirectly, at least a majority percent of the combined voting power of the Successor Entity's outstanding voting securities of the entity resulting from such transaction (including, without limitation, Company or an entity which as a result of such transaction owns Company or all or substantially all of Company’s property or assets, directly or indirectly) (the “Resulting Entity ”) outstanding immediately after the such transaction, in substantially the same proportions relative to each other as their ownership immediately prior to such transaction; and
2) No Person (Bother than any Person that beneficially owned, immediately prior to such reorganization, merger, consolidation, sale or other disposition, directly or indirectly, Voting Stock representing twenty (20) after which no person percent or group more of the combined voting power of Company’s then outstanding securities) beneficially owns voting securities representing 25% owns, directly or indirectly, twenty (20) percent or more of the combined voting power of the Successor then outstanding securities of the Resulting Entity; and
3) At least a majority of the members of the board of directors of the entity resulting from such transaction were members of the board of directors of Company (the “Board ”) at the time of the execution of the initial agreement or action of the Board authorizing such reorganization, merger, consolidation, sale or other disposition; or
(C) Upon the consummation of a plan of complete liquidation or dissolution of Company; or
(D) When the Initial Directors cease for any reason to constitute at least a majority of the Board. For this purpose, an “Initial Director” shall mean those individuals serving as the directors of Company as of the date of this Agreement; provided, however, that no person any individual who becomes a director of Company at or group shall be treated for purposes after the first annual meeting of stockholders of Company following the date of this clause (B) as beneficially owning 25% Agreement whose election, or more nomination for election by Company’s stockholders, was approved by the vote of combined voting power at least a majority of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of Initial Directors then comprising the Board (or by the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control nominating committee of the Company Board, if such committee is comprised of Initial Directors and has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(bauthority) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred been an Initial Director; and provided further, that no individual shall be deemed to be an Initial Director if the following occur:
such individual initially was elected as a director of Company as a result of: (i1) The Company enters into an actual or threatened solicitation by a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person Person (other than an employee benefit plan the Board) made for the purpose of opposing a solicitation by the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons Board with respect to the Board increases such beneficial ownership election or removal of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securitiesdirectors; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z2) any other actual or threatened solicitation of proxies or consents by or on behalf of any Person (other than the occurrence of a Change in Control of the CompanyBoard).
Appears in 2 contracts
Samples: Severance/Change in Control Agreement (Hanesbrands Inc.), Severance/Change in Control Agreement (Hanesbrands Inc.)
Change in Control. (a) Change in Control means and includes each of the following:
(i) the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control Control" means the ----------------- first to occur of the Company" shall be deemed to have occurred if the following occurevents:
(i) The any person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and as used in Sections 13(d) and 14(d) thereof), excluding the Company, any direct or indirect subsidiary of the Company enters into in which the Company has direct or indirect majority ownership (a written agreement "Subsidiary") and any employee benefit plan sponsored or letter maintained by the Company or any Subsidiary (including any trustee of intentsuch plan acting as trustee) (the Company, all Subsidiaries, and such employee benefit plans and trustees acting as trustees being hereafter referred to as the "Company Group"), but including a `group' as defined in Section 13(d)(3) of the Exchange Act (a "Person"), becomes the beneficial owner of shares of the Company having at least thirty percent (30%) of the total number of votes that may be cast for the election of directors of the Company (the "Voting Shares"); provided that no Change in Control will occur as a result of an acquisition of stock by the Company Group which increases, proportionately, the consummation stock representing the voting power of which would result in the occurrence Company beneficially owned by such Person above thirty percent (30%) of the voting power of the Company, and provided further that if such Person acquires beneficial ownership of stock representing more than thirty percent (30%) of the voting power of the Company by reason of share purchases by the Company Group, and after such share purchases by the Company Group acquires any additional shares representing voting power of the Company, then a Change in Control of the Companyshall occur;
(ii) Any person (including the shareholders of the Company shall approve any merger or other business combination of the Company, sale of the Company's assets or combination of the foregoing transactions (a "Transaction") publicly announces other than a Transaction involving only the Company and one or more of its Subsidiaries, or a Transaction immediately following which the shareholders of the Company immediately prior to the Transaction continue to have a majority of the voting power in the resulting entity excluding for this purpose any shareholder owning directly or indirectly more than ten percent (10%) of the shares of the other company involved in the merger; or
(iii) within any 24-month period, the persons who were directors of the Company immediately before the beginning of such period (the "Incumbent Directors") shall cease (for any reason other than death) to constitute at least a majority of the Board or the board of directors of any successor to the Company, provided that any director who was not a director as of the date of this Agreement shall be deemed to be an intention Incumbent Director if such director was elected to take the Board of Directors by, or on the recommendation of or with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either actually or by prior operation of this clause (iii); and provided further that any director elected to consider taking actions which if consummated would constitute the Board of Directors to avoid or settle a threatened or actual proxy contest shall in no event be deemed to be an Incumbent Director.
(b) In the event of a Change in Control, Employee's options granted under any Company Stock Option Plan shall become immediately exercisable to the extent provided by the terms of any such plan in effect as of the effective date of this Agreement, all such plans being incorporated herein by reference.
(c) GranCare shall be obligated after a Change in Control to continue to provide to Employee the same aggregate level of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote fringe benefits described in elections of persons Section 5 which were provided prior to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the CompanyControl.
Appears in 2 contracts
Samples: Employment Agreement (New Grancare Inc), Employment Agreement (New Grancare Inc)
Change in Control. (a) For purposes of this Agreement, a "Change in Control means and includes each Control" shall mean the occurrence of one of the followingfollowing events:
(i) the acquisition, directly or indirectly, by any Any "person" or "group" (as those terms are defined such term is used in Sections 3(a)(9), Section 13(d) and 14(d) of the Exchange Act) other than Xxxxxxx X. Xxxxxxx, Xxxxxxxxxx X. Xxxxxxx, their respective legal representatives, devisees, donees and heirs and any Trust for the benefit of either or both of Xxxxxxx X. Xxxxxxx and Xxxxxxxxxx X. Xxxxxxx and/or the issue of either of them (the "Xxxxxxx Family") becomes a "beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) 1934), directly or indirectly, of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25representing more than 50% or more of the combined voting power of the Company's then outstanding voting securities, other thanor the outstanding securities of a successor entity in the event of a business combination between the Company and another entity; provided that for purposes of this paragraph a "person" shall not include the entity with which the Company may consummate a business combination;
(Aii) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership approve a plan of complete liquidation of the stock of Company or an agreement for the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person sale or group for purposes of this clause (a): an acquisition of the Company's securities disposition by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets assets. For purposes of this clause (ii), the term "the sale or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either disposition by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets assets" shall mean a sale or otherwise succeeds other disposition transaction or series of related transactions (other than transactions related to the business creation of a master limited partnership or royalty trust in which the Company continues its corporate existence), involving assets of the Company or of any direct or indirect subsidiary of the Company (including the Company stock of any direct or indirect subsidiary of the Company) in which the value of the assets or stock being sold or otherwise disposed of (as measured by the purchase price being paid therefor or by such personother method as the Board determines is appropriate in a case where there is no readily ascertainable purchase price) constitutes more than two-thirds of the "fair market value of the Company" (as hereinafter defined). For purposes of the preceding sentence, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control fair market value of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control aggregate market value of the Company;
's outstanding common stock (iion a fully diluted basis) Any person (including plus the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control aggregate market value of the Company;'s other outstanding equity securities. The aggregate market value of the Company's equity securities shall be determined by multiplying the number of shares of the Company's common stock (on a fully diluted basis) outstanding on the date of the execution and delivery of a definitive agreement with respect to the transaction or series of related transactions (the "Transaction Date") by the average closing price of such security for the ten trading days immediately preceding the Transaction Date, or if not publicly traded, by such other method as the Board shall determine is appropriate; or
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of Xxxxxxx Family is no longer the Company) who is or becomes the largest beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more owner of the Company's then outstanding voting securities carrying and Xxxxxxx Xxxxxxx is no longer the right to vote in elections Chief Executive Officer or Chairman of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control Directors of the Company.
Appears in 2 contracts
Samples: Employment Agreement (Venoco, Inc.), Employment Agreement (Venoco, Inc.)
Change in Control. (a) Immediately upon the occurrence of a "Change in Control means and includes each Control," the Employee shall become fully vested in all employee benefit programs (other than any tax qualified retirement or savings plan, the Employee's interest in which shall vest in accordance with such plan's terms), including without limitation, all stock options or other awards under the Stock Plan, in which he was a participant at the time of the following:
Change in Control. For purposes of this Agreement, the term "Change in Control" shall mean the occurrence of any of the following events after the date of this Agreement (i) the acquisition, directly or indirectly, acquisition by any "person" individual, entity or "group" group (as those terms are defined in Sections 3(a)(9), 13(dwithin the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act") and the rules thereunder(a "Person") of "beneficial ownership" ownership (as determined pursuant to within the meaning of Rule 13d-3 promulgated under the Exchange Act) of fifty percent (50%) or more of the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors ("voting securitiesVoting Securities") of ); provided, however, that the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securities, other than
following acquisitions shall not constitute a Change in Control: (A) an any acquisition by a trustee or other fiduciary holding securities under the Company, (B) any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person corporation controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly (C) any acquisition by the stockholders Employee (or a group including the Employee); (ii) the consummation of any reorganization, merger or consolidation other than a reorganization, merger or consolidation which would result in the Voting Securities of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least fifty percent (50%) of the combined voting securities power of the Voting Securities of the Company or such surviving entity outstanding immediately after such reorganization, merger or consolidation; or (iii) the person that, as consummation of a result plan of the transaction, controls, directly or indirectly, complete liquidation of the Company or owns, directly of an agreement for the sale or indirectly, disposition by the Company (in one transaction or a series of transactions) of all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Companyassets.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 2 contracts
Samples: Employment Agreement (Airnet Systems Inc), Employment Agreement (Airnet Systems Inc)
Change in Control. (a) Change in Control means and includes each of the following:
(i) the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the CompanyControl" shall be deemed to have occurred if the following occurif:
(i) The any one person, or more than one person acting as a group, acquires (or has acquired during the 12 month period ending on the date of the most recent acquisition) ownership of stock of the Company enters into a written agreement or letter the Bank 2 possessing more than 50% of intent, the consummation of which would result in the occurrence of a Change in Control total voting power of the Company's or the Bank's stock; provided, however, it is expressly acknowledged by the Executive that this provision shall not be applicable to any person who is, as of the date of this agreement, a Director of the Company or the Bank;
(ii) Any person (including a majority of the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control members of the Company's or the Bank's Board of Directors is replaced during any 12 month period by directors whose appointment or election is not endorsed by a majority of the members of the Company's or the Bank's board prior to the date of the appointment or election;
(iii) Any person (other than an employee benefit plan a merger or consolidation where the holders of the Bank's or the Company's voting stock immediately prior to the effective date of such merger or consolidation own less than 50% of the voting stock of the entity surviving such merger or consolidation.
(iv) any one person, or more than one person acting as a trustee group, acquires (or other fiduciary holding securities under an employee benefit plan has acquired during the twelve month period ending on the date of the Companymost recent acquisition by such person or persons) who assets from the Bank that have a total fair market value greater than 50% of the total fair market value of all of the Bank's assets immediately before the acquisition or acquisitions; provided, however, transfer of assets which otherwise would satisfy the requirements of this subsection (iv) will not be treated as a change in the ownership of such assets if the assets are transferred to;
(A) an entity, 50% or more of the total value or voting power of which is owned, directly or becomes indirectly by the beneficial ownerCompany or the Bank;
(B) a person, or more than one person acting as a group, that owns, directly or indirectly, of securities of the Company representing 9.550% or more of the Company's then total value or voting power of all the outstanding stock of the Company or the Bank; or
(C) an entity, at least 50% of the total value or voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities power is owned, directly or indirectly by an additional five percentage points a person who owns, directly or more thereby beneficially owning 14.5indirectly, 50% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes total value or voting power of this Agreement, a Potential Change in Control all the outstanding stock of the Company has occurredBank. You agree thatNot withstanding the foregoing, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control shall not be deemed to occur as a result of any transaction which changes the jurisdiction of incorporation of the CompanyCompany or the Bank.
Appears in 2 contracts
Samples: Severance Compensation Agreement (CVB Financial Corp), Severance Compensation Agreement (CVB Financial Corp)
Change in Control. (i) In the event of a Change in Control, this award shall be subject to the definitive agreement governing such Change in Control. Such agreement, without the Employee’s consent and notwithstanding any provision to the contrary in this Agreement or the Plan, must provide for one of the following: (a) the assumption of this award by the surviving corporation or its parent; (b) the substitution by the surviving corporation or its parent of an award with substantially the same terms as this award; or (c) the cancellation of this award after payment to the Employee in Shares of an amount equal to the Performance Shares subject to this award at the time of the Change in Control means and includes each Control. In the event the definitive agreement does not provide for one of the following:
foregoing alternatives with respect to the treatment of this award, this award shall have the treatment specified in clause (ic) of the acquisitionpreceding sentence. The Committee may, directly or indirectlyin its sole discretion, by accelerate the vesting of this award in connection with any "of the foregoing alternatives. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events: (a) any “person" or "group" ” (as those terms are defined such term is used in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (0000 Xxx) becomes the "Exchange Act") and the rules thereunder) of "“beneficial ownership" owner” (as determined pursuant to defined in Rule 13d-3 under of the Exchange 1934 Act) ), directly or indirectly, of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% representing fifty percent (50%) or more of the combined total voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled represented by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's ’s then outstanding voting securities; provided, however, that if a person or group shall become (b) the beneficial owner of 25% or more consummation of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions sale or disposition by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets ’s assets; (c) a change in the composition of the Board occurring within a two-year period, as a result of which fewer than a majority of the directors are Incumbent Directors; or (zd) the acquisition consummation of assets a merger or stock consolidation of another entitythe Company with any other corporation, in each case other than a transaction
(A) merger or consolidation which results would result in the Company's voting securities of the Company outstanding immediately before the transaction prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company surviving entity or the person that, as a result its parent) at least fifty percent (50%) of the transaction, controls, directly or indirectly, total voting power represented by the Company or owns, directly or indirectly, all or substantially all voting securities of the Company's assets or otherwise succeeds to the business of the Company (the Company or such personsurviving entity or its parent outstanding immediately after such merger or consolidation. “Incumbent Directors” means directors who either (A) are Directors as of the effective date of the Plan, or (B) are elected, or nominated for election, to the "Successor Entity")) directly or indirectly, Board with the affirmative votes of at least a majority of the combined voting power Directors at the time of the Successor Entity's outstanding voting securities immediately after the transaction, and
such election or nomination (B) after which no person but will not include an individual whose election or group beneficially owns voting securities representing 25% nomination is in connection with an actual or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior threatened proxy contest relating to the consummation election of the transaction; or
(iv) directors to the Company's stockholders approve a liquidation or dissolution of the Company).
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 2 contracts
Samples: Performance Share Agreement (Polycom Inc), Performance Share Agreement (Polycom Inc)
Change in Control. (a) A "Change in Control means and includes each Control" of the followingCompany shall occur or be deemed to have occurred in the event that:
(i) the acquisition, directly or indirectly, by any "person" or "group" (, as those terms are defined such term is used in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act") and (a "Person") other than the rules thereunder) Company, any trustee or other fiduciary holding securities under an employee benefit plan of the Company, or any corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportion as their ownership of stock of the Company, acquires "beneficial ownership" (as determined pursuant to defined in Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% representing fifty percent (50%) or more of the combined voting power of the Company's then outstanding voting securities, securities (other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) than through an acquisition of voting securities by directly from the Company or a corporation owned, directly or indirectly by Company);
(ii) the stockholders of the Company in substantially the same proportions as their ownership approve a merger or consolidation of the stock of Company with any other corporation, other than (A) a merger or consolidation which would result in the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result surviving entity) more than fifty percent (50%) of the transaction, controls, directly or indirectly, combined voting power of the voting securities of the Company or ownssuch surviving entity outstanding immediately after such merger or consolidation, directly or indirectly, (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no "person" (as hereinabove defined) acquires more than fifty percent (50%) of the combined voting power of the Company's then outstanding securities; or
(iii) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Companyassets.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 2 contracts
Samples: Employment Agreement (Aztec Consulting Inc), Employment Agreement (Aztec Consulting Inc)
Change in Control. A “Change in Control” shall be deemed to have occurred in any one of the following events:
(a) Change in Control means and includes each of the following:
(i) the acquisition, directly or indirectly, by any "“person" or "group" (,” as those terms are defined such term is used in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act") and the rules thereunder) of "beneficial ownership" ”), (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of other than the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee any of its subsidiaries, or any trustee, fiduciary or other fiduciary person or entity holding securities under any employee benefit plan (or related trust) sponsored or maintained by trust of the Company or any person controlled by the Company or by any employee benefit plan of its subsidiaries), together with all Affiliates and Associates (or related trustas such terms are hereinafter defined) sponsored or maintained by the Company or any person controlled by the Companyof such person, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the “beneficial owner of 25% or more owner” (as such term is defined in Rule 13d-3 of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity"Exchange Act)) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.525% or more of the Company's then outstanding voting shares of common stock of the Company (the “Stock”) (other than as a result of an acquisition of securities carrying directly from the right to vote in elections Company); or
(b) Upon (A) the consummation of persons any consolidation or merger of the Company where the shareholders of the Company, immediately prior to the Board increases consolidation or merger, did not, immediately after the consolidation or merger, beneficially own (as such beneficial ownership term is defined in Rule 13d-3 of such the Exchange Act), directly or indirectly, shares representing in the aggregate more than 50% of the voting shares of the corporation issuing cash or securities in the consolidation or merger (or of its ultimate parent corporation, if any), (B) the consummation of any sale, lease, exchange or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the assets of the Company or (C) the completion of a liquidation or dissolution that has been approved by the stockholders of the Company . Notwithstanding the foregoing, a “Change in Control” shall not be deemed to have occurred for purposes of the foregoing clause (a) solely as the result of an acquisition of securities by an additional five percentage points or more thereby the Company which, by reducing the number of shares of Stock outstanding, increases the proportionate number of shares of Stock beneficially owning 14.5owned by any person to 25% or more of the shares of Stock then outstanding; provided, however, that if any such securities; or
person shall at any time following such acquisition of securities by the Company become the beneficial owner of any additional shares of Stock (ivother than pursuant to a stock split, stock dividend, or similar transaction) The Board adopts and such person immediately thereafter is the beneficial owner of 25% or more of the shares of Stock then outstanding, then a resolution “Change in Control” shall be deemed to have occurred for purposes of the effect that, for foregoing clause (a). For purposes of this Agreement, “Affiliate” and “Associate” shall have the respective meanings ascribed to such terms in Rule 12b-2 of the Exchange Act, as in effect on the date of this Agreement; provided, however, that no person who is a Potential Change in Control director or officer of the Company has occurred. You agree that, subject to the terms and conditions shall be deemed an Affiliate or an Associate of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ any other director or officer of the Company (solely as a result of his position as director or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control officer of the Company.
Appears in 2 contracts
Samples: Executive Severance Agreement (Plug Power Inc), Executive Severance Agreement (Plug Power Inc)
Change in Control. (a) For purposes of this Agreement, a “Change in Control means and includes each of the followingControl” will occur:
(iA) Upon the acquisitionacquisition by any individual, entity or group, including any Person (as defined in the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”)), of beneficial ownership (as defined in Rule 13d‑3 promulgated under the Exchange Act), directly or indirectly, by any "person" or "group" of twenty (as those terms are defined in Sections 3(a)(9), 13(d20) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% percent or more of the combined voting power of the Company's then outstanding voting securitiescapital stock of Company that by its terms may be voted on all matters submitted to stockholders of Company generally (“Voting Stock”); provided, other thanhowever, that the following acquisitions shall not constitute a Change in Control:
1) Any acquisition directly from Company (Aexcluding any acquisition resulting from the exercise of a conversion or exchange privilege in respect of outstanding convertible or exchangeable securities unless such outstanding convertible or exchangeable securities were acquired directly from Company);
2) an Any acquisition by Company;
3) Any acquisition by an employee benefit plan (or related trust) sponsored or maintained by Company or any corporation controlled by Company; or
4) Any acquisition by any corporation pursuant to a trustee reorganization, merger or consolidation involving Company, if, immediately after such reorganization, merger or consolidation, each of the conditions described in clauses (1), (2) and (3) of subparagraph 3(a)(iii)(B) below shall be satisfied; and provided further that, for purposes of clause (2) immediately above, if (i) any Person (other fiduciary holding securities under than Company or any employee benefit plan (or related trust) sponsored or maintained by the Company or any person corporation controlled by the Company or by any employee benefit plan (or related trustCompany) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% twenty (20) percent or more of the combined voting power of the Company's then outstanding voting securities Voting Stock by reason of share acquisitions an acquisition of Voting Stock by the Company as described above Company, and (ii) such Person shall, after such share acquisitions acquisition by the Company, become the beneficial owner of any additional voting securities shares of the CompanyVoting Stock and such beneficial ownership is publicly announced, then such acquisition additional beneficial ownership shall constitute a Change in Control; or
(iiB) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) Upon the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, merger or business combination consolidation of Company, or (y) a sale sale, lease, exchange or other disposition transfer of all or substantially all of the assets of Company's assets ; excluding, however, any such reorganization, merger, consolidation, sale, lease, exchange or (zother transfer with respect to which, immediately after consummation of such transaction:
1) All or substantially all of the acquisition beneficial owners of assets or stock the Voting Stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities Company outstanding immediately before the prior to such transaction continuing continue to represent beneficially own, directly or indirectly (either by remaining outstanding or by being converted into voting securities of the Company or the person thatentity resulting from such transaction), as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company more than fifty (the Company or such person, the "Successor Entity")50) directly or indirectly, at least a majority percent of the combined voting power of the Successor Entity's outstanding voting securities of the entity resulting from such transaction (including, without limitation, Company or an entity which as a result of such transaction owns Company or all or substantially all of Company's property or assets, directly or indirectly) (the “Resulting Entity”) outstanding immediately after the such transaction, in substantially the same proportions relative to each other as their ownership immediately prior to such transaction; and
2) No Person (Bother than any Person that beneficially owned, immediately prior to such reorganization, merger, consolidation, sale or other disposition, directly or indirectly, Voting Stock representing twenty (20) after which no person percent or group more of the combined voting power of Company's then outstanding securities) beneficially owns voting securities representing 25% owns, directly or indirectly, twenty (20) percent or more of the combined voting power of the Successor then outstanding securities of the Resulting Entity; and
3) At least a majority of the members of the board of directors of the entity resulting from such transaction were members of the board of directors of Company (the “Board”) at the time of the execution of the initial agreement or action of the Board authorizing such reorganization, merger, consolidation, sale or other disposition; or
(C) Upon the consummation of a plan of complete liquidation or dissolution of Company; or
(D) When the Initial Directors cease for any reason to constitute at least a majority of the Board. For this purpose, an “Initial Director” shall mean those individuals serving as the directors of Company immediately after Company ceased to be wholly-owned by Xxxx Xxx Corporation; provided, however, that no person any individual who becomes a director of Company at or group shall be treated after the first annual meeting of stockholders of Company whose election, or nomination for purposes election by the Company’s stockholders, was approved by the vote of this clause (B) as beneficially owning 25% or more of combined voting power at least a majority of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of Initial Directors then comprising the Board (or by the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control nominating committee of the Company Board, if such committee is comprised of Initial Directors and has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(bauthority) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred been an Initial Director; and provided further, that no individual shall be deemed to be an Initial Director if the following occur:
such individual initially was elected as a director of Company as a result of: (i1) The Company enters into an actual or threatened solicitation by a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person Person (other than an employee benefit plan the Board) made for the purpose of opposing a solicitation by the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons Board with respect to the Board increases such beneficial ownership election or removal of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securitiesdirectors; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z2) any other actual or threatened solicitation of proxies or consents by or on behalf of any Person (other than the occurrence of a Change in Control of the CompanyBoard).
Appears in 2 contracts
Samples: Severance/Change in Control Agreement (Hanesbrands Inc.), Severance/Change in Control Agreement (Hanesbrands Inc.)
Change in Control. (a) For purposes hereof a "Section 9 Termination" shall have occurred if Executive's employment is terminated either (i) by Executive for any reason by duly notifying the Company of such termination prior to receiving from the Company a Notice of Termination for Good Cause, if any, or (ii) by the Company other than for Good Cause, at any time during the period beginning on the 120th day preceding the occurrence of a Change in Control means and includes each (hereinafter defined) of the followingCompany and ending on the second anniversary following the occurrence of a Change in Control of the Company. For purposes of this Agreement, a "Change in Control" of the Company shall be deemed to have occurred on the first of any of the following dates:
(i1) the acquisition, directly or indirectly, The acquisition by any "person" individual, entity or "group" group (as those terms are defined in Sections 3(a)(9), 13(dwithin the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")) and (a "Person"), of beneficial ownership (within the rules thereunder) meaning of "beneficial ownership" (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) of twenty percent (20%) or more of either (A) the then-outstanding shares of common stock of the Company (the "Outstanding Company Common Stock") or (B) the combined voting power of the then-outstanding voting securities of the Company entitled to vote generally in the election of directors (the "voting securitiesOutstanding Company Voting Securities") ); provided, however, that for purposes of this Subsection (1), the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securities, other than
following acquisitions shall not constitute a Change in Control: (A) any acquisition directly from the Company other than an acquisition by virtue of the exercise of a trustee or other fiduciary holding securities under conversion privilege unless the security being so converted was itself acquired directly from the Company, (B) any employee benefit plan (or related trust) sponsored or maintained acquisition by the Company or Company, (C) any person controlled by the Company or acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company Company, or any person corporation controlled by the Company, or
or (BD) an any acquisition of voting securities by the Company or a any corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause which complies with clauses (iiiA), (B) below that would not be a Change in Control under clause and (iiiC) of Subsection (3) of this Section 9(a); Notwithstanding the foregoing;
(2) Within any period of 24 consecutive months, neither individuals who, as of the following events shall Effective Date, constitute an the Board (the "acquisition" by Incumbent Board") cease for any person or group for purposes of this clause (a): an acquisition reason to constitute at least a majority of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securitiesBoard; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than individual becoming a director designated by a person who shall have entered into an agreement with subsequent to the Company to effect a transaction described in clauses (i) or (iii) of this Section) date hereof whose election by the Board election, or nomination for election election, by the Company's stockholders was approved by a vote of at least two-thirds a majority of the directors then still in office who either comprising the Incumbent Board shall be considered as though such individual were directors at the beginning a member of the two year period Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or whose threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) with respect to the election or nomination for election was previously so approved, cease for any reason to constitute removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a majority thereof; orPerson other than the Board;
(iii3) the consummation by the Company (whether directly involving Consummation of a reorganization, merger or consolidation of the Company or indirectly involving any direct or indirect subsidiary of the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or of the Company (z) the acquisition of assets or stock of another entitya "Business Combination"), in each case other than a transaction
unless, following, such Business Combination, (A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding all or by being converted into voting securities substantially all of the Company or individuals and entities who were the person thatbeneficial owners, as a result respectively, of the transaction, controlsOutstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than sixty percent (60%) of the then-outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (which shall include for these purposes, without limitation, a corporation which as a result of such transaction owns the Company or owns, directly or indirectly, all or substantially all of the Company's assets either directly or otherwise succeeds through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to the business such Business Combination of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such personcorporation resulting from such Business Combination) beneficially owns, the "Successor Entity")) directly or indirectly, twenty percent (20%) or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination, or the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors, except to the extent that such ownership existed with respect to the Company prior to the Business Combination, and (C) at least a majority of the combined voting power members of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more board of directors of the combined voting power corporation resulting from such Business Combination were members of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power Incumbent Board at the time of the Successor Entity solely as a result execution of the voting power held in the Company prior to the consummation initial agreement, or of the transactionaction of the Board, providing for such Business Combination; or
(iv4) Approval by the Company's stockholders approve of the Company of a complete liquidation or dissolution of the Company.
Company other than to a corporation which would satisfy the requirements of clauses (vA), (B) The Human Resources Committee and (C) of the Board Subsection (the "Committee"3) shall have full and final authorityof this Section 9(a), which shall be exercised in its discretion, to determine conclusively whether assuming for this purpose that such liquidation or dissolution was a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating theretoBusiness Combination.
(b) For purposes If a Section 9 Termination occurs, then notwithstanding the provisions of this AgreementSection 7 and 8 hereof, the Company shall continue to pay to Executive, as severance compensation, a "Potential Change in Control lump sum payment equal to the present value of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest product of (x) a date which is six months from the occurrence of such Potential Change in Control of the CompanySeverance Pay, multiplied by (y) three, calculated as if this amount was to be paid out in equal monthly installments over a period of thirty-six months, and using a discount rate equal to the termination prime rate of interest announced by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of deaththe Company's principal bank, or (z) if it has no such bank, published in the occurrence Wall Street Journal, on the date of a Change in Control of the Companytermination.
Appears in 2 contracts
Samples: Employment Agreement (Divine Inc), Employment Agreement (Divine Inc)
Change in Control. (a) For purposes of this Agreement, a “Change in Control means and includes each of the followingControl” will occur:
(iA) Upon the acquisitionacquisition by any individual, entity or group, including any Person (as defined in the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”)), of beneficial ownership (as defined in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, by any "person" or "group" of twenty (as those terms are defined in Sections 3(a)(9), 13(d20) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% percent or more of the combined voting power of the Company's then outstanding voting securitiescapital stock of Company that by its terms may be voted on all matters submitted to stockholders of Company generally (“Voting Stock”); provided, other thanhowever, that the following acquisitions shall not constitute a Change in Control:
1) Any acquisition directly from Company (Aexcluding any acquisition resulting from the exercise of a conversion or exchange privilege in respect of outstanding convertible or exchangeable securities unless such outstanding convertible or exchangeable securities were acquired directly from Company);
2) an Any acquisition by Company;
3) Any acquisition by an employee benefit plan (or related trust) sponsored or maintained by Company or any corporation controlled by Company; or
4) Any acquisition by any corporation pursuant to a trustee reorganization, merger or consolidation involving Company, if, immediately after such reorganization, merger or consolidation, each of the conditions described in clauses (1), (2) and (3) of subparagraph 3(a)(iii)(B) below shall be satisfied; and provided further that, for purposes of clause (2) immediately above, if (i) any Person (other fiduciary holding securities under than Company or any employee benefit plan (or related trust) sponsored or maintained by the Company or any person corporation controlled by the Company or by any employee benefit plan (or related trustCompany) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% twenty (20) percent or more of the combined voting power of the Company's then outstanding voting securities Voting Stock by reason of share acquisitions an acquisition of Voting Stock by the Company as described above Company, and (ii) such Person shall, after such share acquisitions acquisition by the Company, become the beneficial owner of any additional voting securities shares of the CompanyVoting Stock and such beneficial ownership is publicly announced, then such acquisition additional beneficial ownership shall constitute a Change in Control; or
(iiB) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) Upon the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, merger or business combination consolidation of Company, or (y) a sale sale, lease, exchange or other disposition transfer of all or substantially all of the assets of Company's assets ; excluding, however, any such reorganization, merger, consolidation, sale, lease, exchange or (zother transfer with respect to which, immediately after consummation of such transaction:
1) All or substantially all of the acquisition beneficial owners of assets or stock the Voting Stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities Company outstanding immediately before the prior to such transaction continuing continue to represent beneficially own, directly or indirectly (either by remaining outstanding or by being converted into voting securities of the Company or the person thatentity resulting from such transaction), as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company more than fifty (the Company or such person, the "Successor Entity")50) directly or indirectly, at least a majority percent of the combined voting power of the Successor Entity's outstanding voting securities of the entity resulting from such transaction (including, without limitation, Company or an entity which as a result of such transaction owns Company or all or substantially all of Company’s property or assets, directly or indirectly) (the “Resulting Entity”) outstanding immediately after the such transaction, in substantially the same proportions relative to each other as their ownership immediately prior to such transaction; and
2) No Person (Bother than any Person that beneficially owned, immediately prior to such reorganization, merger, consolidation, sale or other disposition, directly or indirectly, Voting Stock representing twenty (20) after which no person percent or group more of the combined voting power of Company’s then outstanding securities) beneficially owns voting securities representing 25% owns, directly or indirectly, twenty (20) percent or more of the combined voting power of the Successor then outstanding securities of the Resulting Entity; and
3) At least a majority of the members of the board of directors of the entity resulting from such transaction were members of the board of directors of Company (the “Board”) at the time of the execution of the initial agreement or action of the Board authorizing such reorganization, merger, consolidation, sale or other disposition; or
(C) Upon the consummation of a plan of complete liquidation or dissolution of Company; or
(D) When the Initial Directors cease for any reason to constitute at least a majority of the Board. For this purpose, an “Initial Director” shall mean those individuals serving as the directors of Company immediately after Company ceased to be wholly-owned by Sxxx Xxx Corporation; provided, however, that no person any individual who becomes a director of Company at or group shall be treated after the first annual meeting of stockholders of Company whose election, or nomination for purposes election by the Company’s stockholders, was approved by the vote of this clause (B) as beneficially owning 25% or more of combined voting power at least a majority of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of Initial Directors then comprising the Board (or by the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control nominating committee of the Company Board, if such committee is comprised of Initial Directors and has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(bauthority) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred been an Initial Director; and provided further, that no individual shall be deemed to be an Initial Director if the following occur:
such individual initially was elected as a director of Company as a result of: (i1) The Company enters into an actual or threatened solicitation by a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person Person (other than an employee benefit plan the Board) made for the purpose of opposing a solicitation by the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons Board with respect to the Board increases such beneficial ownership election or removal of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securitiesdirectors; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z2) any other actual or threatened solicitation of proxies or consents by or on behalf of any Person (other than the occurrence of a Change in Control of the CompanyBoard).
Appears in 2 contracts
Samples: Severance/Change in Control Agreement (Hanesbrands Inc.), Severance/Change in Control Agreement (Hanesbrands Inc.)
Change in Control. (a) A “Change in Control means and includes each Control” of the followingCompany shall be deemed to have occurred if any of the events set forth in any one of the following subparagraphs shall occur:
(i) the acquisition, directly or indirectly, The acquisition by any "person" individual, entity or "group" group (as those terms are defined in Sections 3(a)(9), 13(dwithin the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the U.S. Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act") and the rules thereunder”)) of "beneficial ownership" ownership (as determined pursuant to within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than 50% of either (y) the then-outstanding shares of Common Stock of the Company (the “Outstanding Company Common Stock”) or (z) the combined voting power of the then-outstanding voting securities of the Company entitled to vote generally in the election of directors ("voting securities"the “Outstanding Company Voting Securities”); provided, however, that for purposes of this subsection (i), the following acquisitions shall not constitute a Change of Control: (1) of the Company that represent 25% or more of the combined voting power of any acquisition directly from the Company's then outstanding voting securities, other than
(A2) an any acquisition by a trustee or other fiduciary holding securities under the Company, (3) any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person corporation controlled by the Company, or
or (B4) an any acquisition of voting securities by the Company or a any corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause which complies with clauses (1) and (2) of subsection (iii) below that would not be a Change in Control under clause of this definition;
(iii); Notwithstanding the foregoingii) Individuals who, neither as of the following events shall date hereof, constitute an "acquisition" by the Board (the “Incumbent Board”) cease for any person or group for purposes of this clause (a): an acquisition reason to constitute at least a majority of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securitiesBoard; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than individual becoming a director designated by a person who shall have entered into an agreement with subsequent to the Company to effect a transaction described in clauses (i) or (iii) of this Section) date hereof whose election by the Board election, or nomination for election by the Company's stockholders ’s stockholders, was approved by a vote of at least two-thirds a majority of the directors then still in office who either comprising the Incumbent Board shall be considered as though such individual were directors at the beginning a member of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; orIncumbent Board;
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) Consummation of (x) a merger, consolidation, reorganization, merger or business combination consolidation or (y) a sale or other disposition of all or substantially all of the Company's assets or of the Company (z) the acquisition of assets or stock of another entitya “Business Combination”), in each case other than a transaction
case, unless, following such Business Combination, (A1) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding all or by being converted into voting securities substantially all of the Company or individuals and entities who were the person thatbeneficial owners, as a result respectively, of the transaction, controlsOutstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of, respectively, the then-outstanding shares of common stock and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Company or owns, directly or indirectly, all or substantially all of the Company's ’s assets either directly or otherwise succeeds through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to the business such Business Combination, of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, and (the Company or such person, the "Successor Entity")2) directly or indirectly, at least a majority of the combined voting power members of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more board of directors of the combined voting power corporation resulting from such Business Combination were members of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power Incumbent Board at the time of the Successor Entity solely as a result execution of the voting power held in the Company prior to the consummation initial agreement, or of the transactionaction of the Board, providing for such Business Combination; or
(iv) Approval by the Company's stockholders approve of the Company of a complete liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intentclarification, the consummation of which would result in sale by the occurrence Company of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take subsidiary or to consider taking actions which if consummated would affiliate that employs Grantee shall not constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan none of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Companyevents set forth in Sections 10(c)(i)-(iv) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has have occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 2 contracts
Samples: Stock Appreciation Right Award Agreement (Belden Inc.), Stock Appreciation Right Award Agreement (Belden Inc.)
Change in Control. (a) A “Change in Control means and includes each Control” of the followingCompany shall be deemed to have occurred if any of the events set forth in any one of the following subparagraphs shall occur:
(i) the acquisition, directly or indirectly, The acquisition by any "person" individual, entity or "group" group (as those terms are defined in Sections 3(a)(9), 13(dwithin the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the U.S. Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act") and the rules thereunder”)) of "beneficial ownership" ownership (as determined pursuant to within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than 50% of either (y) the then-outstanding shares of Common Stock of the Company (the “Outstanding Company Common Stock”) or (z) the combined voting power of the then-outstanding voting securities of the Company entitled to vote generally in the election of directors ("voting securities"the “Outstanding Company Voting Securities”); provided, however, that for purposes of this subsection (i), the following acquisitions shall not constitute a Change of Control: (1) of the Company that represent 25% or more of the combined voting power of any acquisition directly from the Company's then outstanding voting securities, other than
(A2) an any acquisition by a trustee or other fiduciary holding securities under the Company, (3) any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person corporation controlled by the Company, or
or (B4) an any acquisition of voting securities by the Company or a any corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause which complies with clauses (1) and (2) of subsection (iii) below that would not be a Change in Control under clause of this definition;
(iii); Notwithstanding the foregoingii) Individuals who, neither as of the following events shall date hereof, constitute an "acquisition" by the Board (the “Incumbent Board”) cease for any person or group for purposes of this clause (a): an acquisition reason to constitute at least a majority of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securitiesBoard; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than individual becoming a director designated by a person who shall have entered into an agreement with subsequent to the Company to effect a transaction described in clauses (i) or (iii) of this Section) date hereof whose election by the Board election, or nomination for election by the Company's stockholders ’s stockholders, was approved by a vote of at least two-thirds a majority of the directors then still in office who either comprising the Incumbent Board shall be considered as though such individual were directors at the beginning a member of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; orIncumbent Board;
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) Consummation of (x) a merger, consolidation, reorganization, merger or business combination consolidation or (y) a sale or other disposition of all or substantially all of the Company's assets or of the Company (z) the acquisition of assets or stock of another entitya “Business Combination”), in each case other than a transaction
case, unless, following such Business Combination, (A1) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding all or by being converted into voting securities substantially all of the Company or individuals and entities who were the person thatbeneficial owners, as a result respectively, of the transaction, controlsOutstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of, respectively, the then-outstanding shares of common stock and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Company or owns, directly or indirectly, all or substantially all of the Company's ’s assets either directly or otherwise succeeds through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to the business such Business Combination, of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, and (the Company or such person, the "Successor Entity")2) directly or indirectly, at least a majority of the combined voting power members of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more board of directors of the combined voting power corporation resulting from such Business Combination were members of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power Incumbent Board at the time of the Successor Entity solely as a result execution of the voting power held in the Company prior to the consummation initial agreement, or of the transactionaction of the Board, providing for such Business Combination; or
(iv) Approval by the Company's stockholders approve of the Company of a complete liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intentclarification, the consummation of which would result in sale by the occurrence Company of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take subsidiary or to consider taking actions which if consummated would affiliate that employs Grantee shall not constitute a Change in Control if none of the Company;
(iiievents set forth in Sections 10(d)(i)-(iv) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has have occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 2 contracts
Samples: Stretch Achievement Stock Award Agreement (Belden Inc.), Performance Stock Unit Award Agreement (Belden Inc.)
Change in Control. For all purposes of this Agreement, a "Change in Control" shall mean:
(a) Change in Control means and includes each The acquisition by an individual, entity, or group (within the meaning of the following:
(iSection 13(d)(3) the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d14(d)(2) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")) and (a "Person"), of beneficial ownership (within the rules thereunder) meaning of "beneficial ownership" (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 2520% or more of the combined voting power of the Company's then outstanding voting securitiesshares of common stock of Access (the "Outstanding Access Common Stock"); provided, other than
however, that the following acquisitions shall not constitute a Change in Control: (Ai) any acquisition directly from Access (excluding an acquisition by virtue of the exercise of a trustee or other fiduciary holding securities under conversion privilege); (ii) any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company Access; or (iii) any person controlled acquisition by the Company, or
(B) an acquisition of voting securities by the Company or a any corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause subsection (iiic) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoingof this Section 12 if, neither upon consummation of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition transaction, all of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more conditions described in subsection (c) are satisfied;
(b) Individuals who, as of the combined voting power Effective Date hereof, constitute the Board of Directors (the Company's then outstanding voting securities"Incumbent Board") cease for any reason to constitute a majority of such Board; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than individual becoming a director designated by a person who shall have entered into an agreement with subsequent to the Company to effect a transaction described in clauses (i) or (iii) of this Section) Effective Date hereof whose election by the Board election, or nomination for election by the CompanyAccess's stockholders shareholders, was approved by a vote of at least two-thirds of the directors then still in office who either comprising the Incumbent Board shall be considered as though such individual were directors at the beginning a member of the two year period Incumbent Board, but excluding for this purpose any such individual whose initial assumption of office occurs as a result of either an actual or whose threatened election contest (as such terms are used in Rule 14a-ll of Regulation 14A promulgated under the Exchange Act) or nomination for election was previously so approved, cease for any reason to constitute other actual or threatened solicitation of proxies or consents by or on behalf of a majority thereofPerson other than the Board of Directors; or
(iiic) Approval by the shareholders of Access of either (1) a reorganization, merger, share exchange, or consolidation of Access by, with, or into any other corporation or (2) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or of Access (zany of the foregoing transactions, a "Reorganization"); provided, however, that approval by the shareholders of a Reorganization shall not constitute a Change in Control if, upon consummation of the Reorganization, each of the following conditions is satisfied:
(i) more than 60% of the acquisition then outstanding shares of assets or common stock of another entity, in each case other than a transaction
the corporation resulting from the Reorganization (A) which results including the transferee in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding case of a sale or by being converted into voting securities disposition of the Company or the person that, as a result of the transaction, controlsassets) is then beneficially owned, directly or indirectly, by all or substantially all of the Company individuals and entities who were beneficial owners of the Outstanding Access Common Stock immediately prior to the Reorganization in substantially the same proportions as their ownership, immediately prior to such transaction, of the Outstanding Access Common Stock;
(ii) no Person (excluding any employee benefit plan (or related trust) of Access) beneficially owns, directly or indirectly, all 20% or substantially all more of either (1) the then outstanding shares of common stock of the Company's assets corporation resulting from the Reorganization (including the transferee in the case of a sale or otherwise succeeds to disposition of assets), or (2) the business combined voting power of the Company then outstanding voting securities of such corporation entitled to vote generally in the election of directors; and
(the Company or such person, the "Successor Entity")iii) directly or indirectly, at least a majority of the combined voting power members of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more board of directors of the combined voting power corporation resulting from the Reorganization (including the transferee in the case of a sale or disposition of assets) were members of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power Incumbent Board at the time of the Successor Entity solely as a result execution of the voting power held in initial agreement providing for the Company prior to Reorganization. In the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence event of a Change in Control of Control, the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying Executive shall have the right to vote in elections of persons to assume any insurance contracts owned by the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, Employer which were acquired for purposes of this Agreement, a Potential Change in Control of insuring against the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (Executive’s death or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Companydisability.
Appears in 2 contracts
Samples: Employment Agreement (Access National Corp), Employment Agreement (Access National Corp)
Change in Control. (a) A Change in In Control means and includes each will be deemed to have occurred for purposes hereof, upon any one of the following:
following events: (i) any person (within the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined in meaning of Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")), other than the Company (including its subsidiaries, directors, and executive officers) and has become the rules thereunder) beneficial owner, within the meaning of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act, of fifty percent (50%) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of the Company's then outstanding Common Stock or equivalent in voting securities, other than
(A) an acquisition by a trustee power of any class or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition classes of the Company's outstanding securities by the Company which causes the Company's ordinarily entitled to vote in elections of directors ("voting securities beneficially owned by a person securities"); or group to represent 25% (ii) shares representing fifty percent (50%) or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions are purchased pursuant to a tender offer or exchange offer (other than an offer by the Company or its subsidiaries or affiliates); or (iii) as described above and shalla result of, after such share acquisitions by or in connection with, any tender offer or exchange offer, merger or other business combination, sale of assets, or contested election, or any combination of the foregoing transactions (a "Transaction"), the persons who were Directors of the Company before the Transaction shall cease to constitute a majority of the Board of the Company or of any successor to the Company; or (iv) following the Effective Date, become the beneficial owner Company is merged or consolidated with another corporation and as a result of any additional such merger or consolidation less than fifty percent (50%) of the outstanding voting securities of the surviving or resulting corporation shall then be owned in the aggregate by the former shareholders of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with (A) any party to such merger or consolidation, or (B) any affiliates of any such party; or (v) the Company to effect a transaction described in clauses transfers more than fifty percent (i) or (iii50%) of this Sectionits assets, or the last of a series of transfers results in the transfer of more than fifty percent (50%) whose election by of the Board or nomination for election assets of the Company, to another entity that is not wholly-owned by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) . For purposes of this Agreementsubsection (v), a "Potential Change in Control the determination of what constitutes fifty percent (50%) of the Company" assets of the Company shall be deemed made by the Board, as constituted immediately prior to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated events that would constitute a Change in Control of the Company;
if fifty percent (iii50%) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote assets were transferred in elections of persons connection with such events, in its sole discretion. Notwithstanding anything to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of contrary contained in this AgreementSection 7.2, a Potential Change in In Control shall not be deemed to have occurred for the purposes hereof, upon any of the following events: (1) the consummation of an IPO; or (2) the conversion of existing classes of Class A Stock and Preferred Stock of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Companyinto Common Stock.
Appears in 2 contracts
Samples: Employment Agreement (Physician Health Corp), Employment Agreement (Physician Health Corp)
Change in Control. (a) Change in Control means and includes each of the following:
(i) the acquisition, directly or indirectly, acquisition following the date hereof by any "individual, entity or group (a “person" or "group" (as those terms are defined in Sections 3(a)(9”), 13(dincluding any “person” within the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act") and ”), of beneficial ownership (within the rules thereunder) meaning of "beneficial ownership" (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either (A) the then outstanding shares of common stock of the Company (the “Outstanding Common Stock”) or (B) the combined voting power of the then outstanding securities of the Company entitled to vote generally in the election of directors ("voting securities"the “Outstanding Voting Securities”); excluding, however, the following: (1) any acquisition directly from the Company (excluding any acquisition resulting from the exercise of an exercise, conversion or exchange privilege unless the security being so exercised, converted or exchanged was acquired directly from the Company), (2) any acquisition by the Company, (3) any acquisition by an employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company, or (4) any acquisition by any corporation pursuant to a transaction which complies with clauses (A), (B) and (C) of subsection (iii) of this Section 1(a); provided further, that for purposes of clause (2), if any person (other than the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person corporation controlled by the Company) shall become the beneficial owner of 20% or more of the Outstanding Common Stock or 20% or more of the Outstanding Voting Securities by reason of an acquisition by the Company, and such person shall, after such acquisition by the Company, become the beneficial owner of any additional shares of the Outstanding Common Stock or any additional Outstanding Voting Securities and such beneficial ownership is publicly announced, such additional beneficial ownership shall constitute a Change in Control; or
(ii) the cessation of Incumbent Directors to comprise at least a majority of the Board; or
(iii) the consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company (a “Corporate Transaction”); excluding, however, a Corporate Transaction pursuant to which (A) all or substantially all of the individuals or entities who are the beneficial owners, respectively, of the Outstanding Common Stock and the Outstanding Voting Securities immediately prior to such Corporate Transaction will beneficially own, directly or indirectly, more than 50% of, respectively, the outstanding shares of common stock, and the combined voting power of the outstanding securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Corporate Transaction (including, without limitation, a corporation which as a result of such transaction owns, directly or indirectly, the Company or by all or substantially all of the Company’s assets) in substantially the same proportions relative to each other as their ownership, immediately prior to such Corporate Transaction, of the Outstanding Common Stock and the Outstanding Voting Securities, as the case may be, (B) no person (other than: the Company; any employee benefit plan (or related trust) sponsored or maintained by the Company or any person corporation controlled by the Company; the corporation resulting from such Corporate Transaction; and any person which beneficially owned, or
(B) an acquisition of voting securities by the Company or a corporation ownedimmediately prior to such Corporate Transaction, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Companyindirectly, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 2520% or more of the Outstanding Common Stock or the Outstanding Voting Securities, as the case may be) will beneficially own, directly or indirectly, 20% or more of, respectively, the outstanding shares of common stock of the corporation resulting from such Corporate Transaction or the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company corporation entitled to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results generally in the Company's voting securities outstanding immediately before the transaction continuing to represent election of directors and (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")C) directly or indirectly, Incumbent Directors will constitute at least a majority of the combined voting power members of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more board of directors of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transactioncorporation resulting from such Corporate Transaction; or
(iv) the Company's stockholders approve consummation of a plan of complete liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 1 contract
Samples: Director and Officer Indemnification Agreement (Microvast Holdings, Inc.)
Change in Control. (a) For purposes hereof a "Section 9 Termination" shall have occurred if Executive's employment is terminated either (i) by Executive for any reason by duly notifying the Company of such termination prior to receiving from the Company a Notice of Termination for Good Cause, if any, or (ii) by the Company other than for Good Cause, at any time during the period beginning on the 120th day preceding the occurrence of a Change in Control means and includes each (hereinafter defined) of the followingCompany and ending on the second anniversary following the occurrence of a Change in Control of the Company. For purposes of this Agreement, a "Change in Control" of the Company shall be deemed to have occurred on the first of any of the following dates:
(i1) the acquisition, directly or indirectly, The acquisition by any "person" individual, entity or "group" group (as those terms are defined in Sections 3(a)(9), 13(dwithin the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")) and (a "Person"), of beneficial ownership (within the rules thereunder) meaning of "beneficial ownership" (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) of twenty percent (20%) or more of either (A) the then-outstanding shares of common stock of the Company (the "Outstanding Company Common Stock") or (B) the combined voting power of the then-outstanding voting securities of the Company entitled to vote generally in the election of directors (the "voting securitiesOutstanding Company Voting Securities") ); provided, however, that for purposes of this Subsection (1), the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securities, other than
following acquisitions shall not constitute a Change in Control: (A) any acquisition directly from the Company other than an acquisition by virtue of the exercise of a trustee or other fiduciary holding securities under conversion privilege unless the security being so converted was itself acquired directly from the Company, (B) any employee benefit plan (or related trust) sponsored or maintained acquisition by the Company or Company, (C) any person controlled by the Company or acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company Company, or any person corporation controlled by the Company, or
or (BD) an any acquisition of voting securities by the Company or a any corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause which complies with clauses (iiiA), (B) below that would not be a Change in Control under clause and (iiiC) of Subsection (3) of this Section 9(a); Notwithstanding the foregoing;
(2) Within any period of 24 consecutive months, neither individuals who, as of the following events shall Effective Date, constitute an the Board (the "acquisition" by Incumbent Board") cease for any person or group for purposes of this clause (a): an acquisition reason to constitute at least a majority of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securitiesBoard; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than individual becoming a director designated by a person who shall have entered into an agreement with subsequent to the Company to effect a transaction described in clauses (i) or (iii) of this Section) date hereof whose election by the Board election, or nomination for election election, by the Company's stockholders was approved by a vote of at least two-thirds a majority of the directors then still in office who either comprising the Incumbent Board shall be considered as though such individual were directors at the beginning a member of the two year period Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or whose threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) with respect to the election or nomination for election was previously so approved, cease for any reason to constitute removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a majority thereof; orPerson other than the Board;
(iii3) the consummation by the Company (whether directly involving Consummation of a reorganization, merger or consolidation of the Company or indirectly involving any direct or indirect subsidiary of the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or of the Company (z) the acquisition of assets or stock of another entitya "Business Combination"), in each case other than a transaction
unless, following, such Business Combination, (A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding all or by being converted into voting securities substantially all of the Company or individuals and entities who were the person thatbeneficial owners, as a result respectively, of the transaction, controlsOutstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than sixty percent (60%) of the then-outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (which shall include for these purposes, without limitation, a corporation which as a result of such transaction owns the Company or owns, directly or indirectly, all or substantially all of the Company's assets either directly or otherwise succeeds through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to the business such Business Combination of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such personcorporation resulting from such Business Combination) beneficially owns, the "Successor Entity")) directly or indirectly, twenty percent (20%) or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination, or the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors, except to the extent that such ownership existed with respect to the Company prior to the Business Combination, and (C) at least a majority of the combined voting power members of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more board of directors of the combined voting power corporation resulting from such Business Combination were members of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power Incumbent Board at the time of the Successor Entity solely as a result execution of the voting power held in the Company prior to the consummation initial agreement, or of the transactionaction of the Board, providing for such Business Combination; or
(iv4) Approval by the Company's stockholders approve of the Company of a complete liquidation or dissolution of the Company.
Company other than to a corporation which would satisfy the requirements of clauses (vA), (B) The Human Resources Committee and (C) of the Board Subsection (the "Committee"3) shall have full and final authorityof this Section 9(a), which shall be exercised in its discretion, to determine conclusively whether assuming for this purpose that such liquidation or dissolution was a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating theretoBusiness Combination.
(b) For purposes If a Section 9 Termination occurs, then notwithstanding the provisions of this AgreementSection 7 and 8 hereof, the Company shall continue to pay to Executive, as severance compensation, a "Potential Change in Control lump sum payment equal to the present value of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest product of (x) a date which is six months from the occurrence of such Potential Change in Control of the CompanySeverance Pay, multiplied by (y) five, calculated as if this amount was to be paid out in equal monthly installments over a period of sixty months, and using a discount rate equal to the termination prime rate of interest announced by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of deaththe Company's principal bank, or (z) if it has no such bank, published in the occurrence Wall Street Journal, on the date of a Change in Control of the Companytermination.
Appears in 1 contract
Samples: Employment Agreement (Divine Inc)
Change in Control. (a) In the event of an occurrence of a Change in Control means and includes each (as defined below) within 1 year, the Company will pay Executive a bonus payment equal to $350,000 on the date of an occurrence of a Change in Control.
(b) For the following:
purposes of this Agreement, "Change in Control" shall mean: (i) the acquisition, directly or indirectly, by any "person" or "group" (as those such terms are defined used in Sections 3(a)(9), Section 13(d) and 14(d) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act") and )), who is or becomes the rules thereunder) of "beneficial ownershipowner" (as determined pursuant to defined in Rule 13d-3 under the Exchange Act) ), directly or indirectly, of securities entitled to vote generally in of Automotive Industries Holding, Inc. (the election of directors ("voting securitiesParent") of the Company that represent 25representing 20% or more of the combined voting power of the CompanyParent's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) Parent or (iii) of this Section) whose election by the Board J2R Corporation, Onex Corporation and their affiliates or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect thatParent and, for purposes of this Agreement, a Potential no Change in Control shall be deemed to have occurred as a result of the Company has occurred. You agree that"beneficial ownership," or changes therein, subject of the Company's securities by any of the foregoing), (ii) there shall be consummated (A) any consolidation or merger of the Parent in which the Parent is not the surviving or continuing corporation or pursuant to which shares of the Parent's capital stock would be converted into cash, securities or other property, other than a merger of the Parent in which the holders of the Parent's capital stock immediately prior to the terms and conditions of this Agreement, merger have (directly or indirectly) at least an 80% ownership interest in the event outstanding capital stock of the surviving corporation immediately after the merger, or (B) any sale, lease, exchange or other transfer (in one transaction or a Potential Change in Control series of related transactions) of all, or substantially all, of the assets of the Parent or the Company, (iii) the stockholders of the Parents or the Company approve any plan or proposal for the liquidation or dissolution of the Company, you will remain or (iv) as the result of, or in connection with, any cash tender offer, exchange offer, merger or other business combination, sale of assets, proxy or consent solicitation (other than by the employ board of directors of the Company Parent (the "Parent Board"), contested election or substantial stock accumulation (a "Control Transaction"), the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control members of the Company, (y) Parent Board immediately prior to the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of first public announcement relating to such Control Transaction shall thereafter cease to constitute a Change in Control majority of the CompanyParent Board.
Appears in 1 contract
Change in Control. (a) A "Change in Control means and includes each Control" shall be deemed to have occurred as of the followingdate on which either of the following events occur:
(i) the acquisition, directly or indirectly, by If any "person" or "group" group of persons", which person or group of persons are not part of present Management and are acting in concert (as those terms are defined the term "person" is used in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")) and becomes the rules thereunder) of "beneficial ownershipowner" (as determined pursuant to defined in Rule 13d-3 promulgated under the Exchange Act) directly or indirectly of securities of the Corporation representing thirty (30%) percent or more of the combined voting power of the Corporation's then outstanding securities; or,
(ii) If at any time there shall be a change in the composition of the Corporation's Board of Directors resulting in a majority of such Directors as of the date hereof no longer constituting such a majority; provided, however, that in making any such determination as to change in composition, there shall be excluded any change where the new Director was elected by or upon the recommendation of such present majority; or
(iii) If the approval by the stockholders of the Corporation of a reorganization, merger or consolidation, in each case, with respect to which persons who were stockholders of the Corporation immediately prior to such reorganization, merger or consolidation do not, immediately thereafter, own more than fifty (50%) percent of the combined voting power of the reorganized, merged or consolidated Corporation's then outstanding securities entitled to vote generally in the election of directors ("voting securities") or with respect to a liquidation or dissolution of the Company that represent 25% Corporation or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the CompanyCorporation's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transactionassets; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which There shall be exercised in its discretion, to determine conclusively whether a Change in of Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and as defined by any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written other agreement or letter of intent, plan to which the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who Corporation is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Companyparty.
Appears in 1 contract
Samples: Key Employee Severance Pay Agreement (Met Pro Corp)
Change in Control. A "Change in Control" shall be deemed to have occurred in any one of the following events:
(a) Change in Control means and includes each of the following:
(i) the acquisition, directly or indirectly, by any "person" or "group" (as those terms are such term is defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act")) and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of other than the Company's then outstanding voting securities, other than
(A) an acquisition by a any trustee or other fiduciary holding securities under any an employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by trust of the Company, or
(B) an acquisition of voting securities by the Company or a any corporation owned, directly or indirectly indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company) becomes a "beneficial owner" (as such term is defined in Rule 13d-3 promulgated under the Act), or
(C) an acquisition directly or indirectly, of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause Company representing at least twenty five percent (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% %) or more of the combined voting power of the Company's then outstanding voting securities; provided;
(b) persons who, howeveras of March 19, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of 1997, constituted the Company's then outstanding voting securities by reason Board (the "Incumbent Board") cease for any reason, including without limitation, as a result of share acquisitions by a tender offer, proxy contest, merger or similar transaction, to constitute at least a majority of the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner Board of any additional voting securities Directors of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During provided that any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than person becoming a director designated by a person who shall have entered into an agreement with of the Company subsequent to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or March 19, 1997 whose election or nomination for election was previously so approved, cease for any reason to constitute approved by at least a majority thereofof the directors then comprising the Incumbent Board shall, for purposes of this Agreement, be considered a member of the Incumbent Board; or
(iiic) the consummation by stockholders of the Company shall approve (whether directly involving i) any consolidation or merger of the Company or indirectly involving its subsidiaries where the Company through one stockholders of the Company, immediately prior to the consolidation or merger, would not, immediately after the consolidation or merger, beneficially own (as such term is defined in Rule 13d-3 under the Act), directly or indirectly, shares representing in the aggregate 80% or more intermediariesof the voting shares of the corporation issuing cash or securities in the consolidation or merger (or of its ultimate parent corporation, if any), (ii) of (x) a mergerany sale, consolidationlease, reorganization, or business combination or (y) a sale exchange or other disposition transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or (iii) any plan or proposal for the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 1 contract
Samples: Change in Control Protection Agreement (Boston Private Financial Holdings Inc)
Change in Control. (a) In the event a Change in Control means and includes each (as hereafter defined) occurs related to Bank or Alliance Data, Bank or Alliance Data shall require that the person or entity obtaining such control shall continue to perform all of the following:
duties, obligations and responsibilities: (i) of Bank under this Agreement including, but not limited to, the acquisitionService Standards, directly Operating Procedures and Marketing Fund; or indirectly(ii) of Bank, by Alliance Data or their Affiliate under the Purchase Agreement and any of the Transaction Documents (as defined in the Purchase Agreement) to which Bank, Alliance Data or the Affiliate is a party or is otherwise bound. For purposes of this Agreement, a "Change in Control" shall be deemed to have occurred as of the date (i) any "person" or "group" (as those such terms are defined used in Sections 3(a)(9), 13(d) and 14(dSection 13(d)(3) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")) (other than Welsh Xxxxxx Xxxxxxxx & Xxxxx partnerships and partners of Limited Brands, Inc. and its affiliates) is or becomes the rules thereunder) of "beneficial ownershipowner" (as determined pursuant to defined in Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") ), directly or indirectly, of the Company that represent equity interests of Bank or Alliance Data representing twenty-five percent (25% %) or more of the combined voting power of the CompanyBank's or Alliance Data's then outstanding voting securitiesequity interests, other than
and within one (A1) an acquisition by a trustee year after the "person" or other fiduciary holding securities under any employee benefit plan "group" becomes the beneficial owner of twenty-five percent (or related trust25%) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of Bank or Alliance Data (the Company's then outstanding voting securities; provided"Trigger Date"), however, that if a person the managers or group shall become the beneficial owner of 25% or more members of the combined voting power Board of Bank or Alliance Data immediately prior to the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall Trigger Date cease to constitute a Change in Control; or
majority of such Board, (ii) During the consummation of a consolidation or merger of Bank or Alliance Data in which Bank or Alliance Data is not the surviving or continuing entity, or pursuant to which the equity interests of Bank or Alliance Data would be converted into cash, equity interests of any period other entity (except a direct or indirect wholly owned subsidiary of two consecutive yearsAlliance Data) or other property, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by merger of Bank or Alliance Data in which the holders of Bank's or Alliance Data's equity interests immediately prior to the merger have (directly or indirectly) at least a person who shall have entered into an agreement with fifty one percent (51%) ownership interest in the Company to effect a transaction described in clauses (i) outstanding equity interests of the surviving entity immediately after the merger, or (iii) the sale, lease, exchange or other transfer (in one transaction or a series of this Sectionrelated transactions) whose election by the Board of all, or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds substantially all, of the directors then still in office who either were directors at the beginning assets of the two year period Bank or whose election Alliance Data to any other entity (except a direct or nomination for election was previously so approvedindirect wholly owned subsidiary of Alliance Data), cease except for any reason to constitute sale, lease exchange or transfer resulting from any action taken by any creditor of Bank or Alliance Data in enforcing its rights or remedies against any assets of Bank or Alliance Data in which such creditor holds a majority thereofsecurity interest; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve any enforcement action being taken by any federal regulator naming a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Companyreceiver for, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectlyotherwise taking control, of securities of the Company representing 9.5% Bank or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the CompanyAlliance Data.
Appears in 1 contract
Samples: Private Label Credit Card Program Agreement (Stage Stores Inc)
Change in Control. (a) Change in A Change-in-Control means and includes each shall mean any of the following:
(i) the acquisitiondissolution or liquidation of the Company;
(ii) a merger, directly consolidation, reorganization or indirectly, by similar transaction involving the Company (A) in which the Company is not the surviving corporation(s) or other surviving entity(ies) or (B) which results in the Company becoming the wholly-owned subsidiary of another corporation(s) or other entity(ies) (any "person" or "group" transaction of the type specified in this clause (as those terms are defined in Sections 3(a)(9B) a “Parent Transaction”), 13(d) and 14(d) unless the existing stockholders of the Company beneficially own (within the meaning of Rule l3d-3 promulgated under the Securities Exchange Act of 1934 as amended (the "“Exchange Act"”)) and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election aggregate immediately following the consummation of directors ("voting securities") of the Company that represent 25such transaction more than 50% or more of the combined voting power of the Company's then all classes of outstanding voting securities, securities of the successor(s) to the Company (in the case of a transaction referred to in clause (B) above) or of the corporation(s) or other than
entity(ies) whose voting securities are issued to the existing stockholders in such transaction (in the case of a transaction referred to in clause (A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition above);
(iii) a sale of voting securities by all or substantially all of the Company or a corporation owned, directly or indirectly by the stockholders assets of the Company to another corporation(s) or other entity(ies) as determined in substantially accordance with the same proportions as their ownership applicable law of the stock State of the Company, orDelaware;
(Civ) an acquisition any other transaction (including a merger, consolidation, reorganization or similar transaction) that results in any corporation(s) or other entity(ies) beneficially owning (within the meaning of voting securities pursuant to a Rule 13d-3 promulgated under the Exchange Act) immediately following the consummation of such transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25more than 50% or more of the combined voting power of all classes of outstanding voting securities of (A) the corporation(s) (including, to the extent applicable, the Company's , or other entity whose voting securities are issued to the existing stockholders of the Company in such transaction or (B) if no such issuance is made in such transaction, the Company, provided, however, that Change-in-Control shall not mean any transaction in which the existing stockholders of the Company prior to the transaction are the same as the stockholders of the Company after the transaction, notwithstanding that the existing stockholders’ relative ownership percentages have changed; or
(v) the Board members then outstanding serving on the Effective Date (“Incumbent Board Members”) ceasing for any reason to constitute (A) at any time prior to the consummation of a Parent Transaction, a majority of the Board or a majority of the board of directors, board of managers or other governing body of any successor to the Company or (B) at any time following the consummation of a Parent Transaction, a majority of the board of directors, board of managers or other governing body of the corporation or other entity whose voting securitiessecurities are issued to the existing stockholders of the Company in such transaction; provided, however, that if any individual becoming a person or group shall become the beneficial owner of 25% or more member of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning Board or of such periodboard of directors, constitute board of managers or other governing body, as the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with case may be, subsequent to the Company to effect a transaction described in clauses (i) or (iii) of this Section) Effective Date whose election by the Board appointment or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group Incumbent Board Members shall be treated deemed to be an Incumbent Board Member for purposes of this clause (B) as beneficially owning 25% or more v), but excluding, for such purposes, any such individual whose initial assumption of combined voting power of the Successor Entity solely office occurs as a result of an actual or threatened election contest with respect to the voting power held election or removal of directors (or managers or other members of any such governing body) or other actual or threatened solicitation of proxies or consents by or on behalf of someone other than the Board or such board of directors, board of managers or other governing body, as the case may be. Notwithstanding anything herein to the contrary, following the occurrence of a Change-in- Control, the determination of whether or not subsequent Change-in-Control has occurred will be made by replacing (i) references to “Effective Date” in the Company prior definition thereof with references to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control immediately prior Change-in-Control, and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person references to existing stockholders (including the Companyor any variation thereof) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons with references to the Board increases such beneficial ownership stockholders immediately following the preceding Change-in-Control. For the avoidance of such securities by an additional five percentage points or doubt, more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, than one Change-in-Control may occur for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 1 contract
Samples: Employment Agreement (Broadview Networks Holdings Inc)
Change in Control. (a) Change in Control means and includes each of the following:
(i) the acquisition, directly or indirectly, acquisition by any "individual, entity or group (a “person" or "group" (as those terms are defined in Sections 3(a)(9”), 13(dincluding any “person” within the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act") and ”), of beneficial ownership (within the rules thereunder) meaning of "beneficial ownership" (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of 20% or more of either (A) the then outstanding shares of common stock of the Company (the “Outstanding Common Stock”) or (B) the combined voting power of the then outstanding securities of the Company entitled to vote generally in the election of directors ("voting securities"the “Outstanding Voting Securities”); excluding, however, the following: (1) any acquisition directly from the Company (excluding any acquisition resulting from the exercise of an exercise, conversion or exchange privilege unless the security being so exercised, converted or exchanged was acquired directly from the Company), (2) any acquisition by the Company, (3) any acquisition by an employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company, or (4) any acquisition by any corporation pursuant to a transaction which complies with clauses (A), (B) and (C) of subsection (iii) of this Section 1(a); provided further, that for purposes of clause (2), if any person (other than the Company that represent 25% or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person corporation controlled by the Company) shall become the beneficial owner, directly or indirectly, of 20% or more of the Outstanding Common Stock or 20% or more of the Outstanding Voting Securities by reason of an acquisition by the Company, and such person shall, after such acquisition by the Company, become the beneficial owner of any additional shares of the Outstanding Common Stock or any additional Outstanding Voting Securities and such beneficial ownership is publicly announced, such additional beneficial ownership shall constitute a Change in Control; or
(ii) the cessation of Incumbent Directors to comprise at least a majority of the Board; or
(iii) the consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company (a “Corporate Transaction”); excluding, however, a Corporate Transaction pursuant to which (A) all or substantially all of the individuals or entities who are the beneficial owners, respectively, of the Outstanding Common Stock and the Outstanding Voting Securities immediately prior to such Corporate Transaction will beneficially own, directly or indirectly, more than 80% of, respectively, the outstanding shares of common stock, and the combined voting power of the outstanding securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Corporate Transaction (including, without limitation, a corporation which as a result of such transaction owns, directly or indirectly, the Company or by all or substantially all of the Company’s assets) in substantially the same proportions relative to each other as their ownership, immediately prior to such Corporate Transaction, of the Outstanding Common Stock and the Outstanding Voting Securities, as the case may be, (B) no person (other than: the Company; any employee benefit plan (or related trust) sponsored or maintained by the Company or any person corporation controlled by the Company; the corporation resulting from such Corporate Transaction; and any person which beneficially owned, or
(B) an acquisition of voting securities by the Company or a corporation ownedimmediately prior to such Corporate Transaction, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Companyindirectly, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 2520% or more of the Outstanding Common Stock or the Outstanding Voting Securities, as the case may be) will beneficially own, directly or indirectly, 20% or more of, respectively, the outstanding shares of common stock of the corporation resulting from such Corporate Transaction or the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company corporation entitled to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results generally in the Company's voting securities outstanding immediately before the transaction continuing to represent election of directors and (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")C) directly or indirectly, Incumbent Directors will constitute at least a majority of the combined voting power members of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more board of directors of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transactioncorporation resulting from such Corporate Transaction; or
(iv) the Company's stockholders approve consummation of a plan of complete liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.
Appears in 1 contract
Samples: Director and Officer Indemnification Agreement (Great Elm Group, Inc.)
Change in Control. (a) Change For purposes of this Agreement, a "change in Control control" means and includes each the occurrence of any one of the followingfollowing events:
(i) individuals who, on January 21, 1997, constitute the acquisitionBoard (the "Incumbent Directors") cease for any reason to constitute at least a majority of the Board, directly provided that any person becoming a director subsequent to January 21, 1997, whose election or indirectlynomination for election was approved by a vote of at least three-fourths (3/4) of the Incumbent Directors then on the Board (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without written objection to such nomination) shall be an Incumbent Director; provided, however, that no individual elected or nominated as a director of the Company initially as a result of an actual or threatened election contest with respect to directors or as a result of any other actual or threatened solicitation of proxies or consents by or on behalf of any person other than the Board shall be deemed to be an Incumbent Director;
(ii) any Person is or becomes a "person" or "groupbeneficial owner" (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) ), directly or indirectly, of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25representing 20% or more of the combined voting power of the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securitiesVoting Securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as event described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
this paragraph (ii) During shall not be deemed to be a change in control by virtue of any period of two consecutive years, individuals who, at the beginning following acquisitions: (A) by any underwriter temporarily holding securities pursuant to an offering of such periodsecurities, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (B) pursuant to a Non-Qualifying Transaction (as defined in paragraph (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or));
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganizationshare exchange or similar form of corporate transaction involving the Company or any of its Subsidiaries that requires the approval of the Company's stockholders, whether for such transaction or business combination the issuance of securities in the transaction (a "Business Combination"), unless immediately following such Business Combination: (A) more than 60% of the total voting power of (x) the corporation resulting from such Business Combination (the "Surviving Corporation"), or (y) a sale or other disposition of all or substantially all of if applicable, the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, ultimate parent corporation that directly or indirectly, the Company or owns, directly or indirectly, all or substantially all indirectly has beneficial ownership of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25100% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in securities eligible to elect directors of the Surviving Corporation (the "Parent Corporation"), is represented by Company Voting Securities that were outstanding immediately prior to the consummation of the transaction; such Business Combination (or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, if applicable, is represented by shares into which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the such Company has occurred Voting Securities were converted pursuant to the above definitionsuch Business Combination), and such voting power among the date of holders thereof is in substantially the occurrence same proportion as the voting power of such Change in Control and any incidental matters relating thereto.
Company Voting Securities among the holders thereof immediately prior to the Business Combination, (bB) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any no person (other than an any employee benefit plan of sponsored or maintained by the CompanySurviving Corporation or the Parent Corporation), or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.520% or more of the Company's then total voting power of the outstanding voting securities carrying eligible to elect directors of the right Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation) and (C) at least two-thirds (2/3) of the members of the board of directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation) were Incumbent Directors at the time of the Board's approval of the execution of the initial agreement providing for such Business Combination (any Business Combination which satisfies all of the criteria specified in (A), (B) and (C) above shall be deemed to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securitiesbe a "Non-Qualifying Transaction"); or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control stockholders of the Company has occurred. You agree that, subject to approve a plan of complete liquidation or dissolution of the terms and conditions Company or a sale of this Agreement, in the event of a Potential Change in Control all or substantially all of the Company's assets. Notwithstanding the foregoing, you will remain a change in the employ control of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest shall not be deemed to occur solely because any person acquires beneficial ownership of (x) a date which is six months from the occurrence of such Potential Change in Control more than 20% of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), Company Voting Securities as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control result of the Companyacquisition of Company Voting Securities by the Company which reduces the number of Company Voting Securities outstanding; provided, that if after such acquisition by the Company such person becomes the beneficial owner of additional Company Voting Securities that increases the percentage of outstanding Company Voting Securities beneficially owned by such person, a change in control of the Company shall then occur.
Appears in 1 contract
Samples: Change in Control Severance Agreement (First Horizon National Corp)
Change in Control. (a) Upon a Change in Control means and includes each of the followingCompany, the Board of Directors may, in its discretion, accelerate the vesting on all unvested Shares.
(b) Upon a Change in Control where the Company is not the surviving corporation (or survives only as a subsidiary of another corporation), the Board may, in addition to any action taken pursuant to clause (a) above, take one or a combination of the following actions: (i) replace all outstanding Awards that are not vested with comparable Awards by the surviving corporation (or a parent or subsidiary of the surviving corporation), or (ii) exchange outstanding unvested Shares for a payment by the Company in cash.
(c) For purpose of this Agreement, a “Change in Control” of the Company means the determination (which may be made effective as of a particular date specified by the Board) by the Board, made by a majority vote that a Change in Control has occurred, or is about to occur. Such a change shall not include, however, a restructuring, reorganization, merger, or other change in capitalization in which the persons who own an interest in the Company on the date hereof (the “Current Owners”) (or any individual or entity which receives from a Current Owner an interest in the Company through will or the laws of descent and distribution) maintain more than a 50% voting or economic interest in the resultant entity. Regardless of the vote of the Board or whether or not the Board votes, a Change in Control shall be deemed to have occurred as of the first day if any one or more of the following subsections shall have been satisfied:
(i) the acquisition, directly or indirectly, by any "person" or "group" Any person (as those terms are defined other than a person in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") control of the Company that represent 25% or more as of the combined voting power effective date of the Company's then outstanding voting securitiesthis Agreement, or other than
(A) an acquisition by than a trustee or other fiduciary holding securities under any employee an Grantee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by of the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, company owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company), or
(C) an acquisition becomes the beneficial owner, directly or indirectly, of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause Company representing more than thirty-five percent (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more 35%) of the combined voting power of the Company's ’s then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or;
(ii) During any period of two consecutive years, individuals who, at as of the beginning effective date of such periodthis Agreement, constitute constituted the Board together with (the “Incumbent Board”) cease for any new director(s) (other than reasons to constitute at least a majority of the Board; provided, that any person becoming a director designated by a person who shall have entered into an agreement with subsequent to the Company to effect a transaction described in clauses (i) or (iii) effective date of this Section) Agreement, whose election by the Board election, or nomination for election by the Company's stockholders ’s shareholders, was approved by a vote of at least two-thirds three quarters of the directors then still in office who either were directors at comprising the beginning of the two year period or whose Incumbent Board (other than an election or nomination of an individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the directors of the Company) shall be, for election was previously so approvedpurposes of this Agreement, cease for any reason to constitute considered as though such person were a majority thereof; member of the Incumbent Board, or
(iii) the consummation by The stockholders of the Company approve:
(whether directly involving 1) A plan of complete liquidation of the Company or indirectly involving Company;
(2) An agreement for the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets ’s assets; or
(iv) A merger, consolidation, or (z) reorganization of the acquisition of assets Company with or stock of another entityinvolving any other company, in each case other than a transaction
(A) which results merger, consolidation, or reorganization that would result in the Company's voting securities of the Company outstanding immediately before the transaction prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")surviving entity) directly or indirectly, at least a majority 50% of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurssurviving entity) until the earliest of (x) a date which is six months from the occurrence of outstanding immediately after such Potential Change in Control of the Companymerger, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of deathconsolidation, or (z) the occurrence of a Change in Control of the Companyreorganization.
Appears in 1 contract
Samples: Restricted Stock Award Agreement (YTB International, Inc.)
Change in Control. (a) For purposes of this Agreement, a "Change in Control means and includes each Control" of the following:
(i) Company shall be deemed to have occurred upon the acquisition, directly or indirectly, by date any "person" or "group" (as those such terms are defined used in Sections 3(a)(9), Section 13(d) and 14(d) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act") and )), other than the rules thereunder) Company or any "person" who on the date hereof is a director or officer of the Company, is or becomes the "beneficial ownershipowner" (as determined pursuant to defined in Rule 13d-3 under the Exchange Act), directly or indirectly, (a) as a passive investor without Board or other representation, of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent representing 25% or more of the combined voting power of the Company's then outstanding voting securities, (b) or in any other than
(A) an acquisition by a trustee or other fiduciary holding capacity of securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25representing 15% or more of the combined voting power of the Company's then outstanding securities, in a transaction which was not approved in advance by the Board. For the purposes of this Agreement, in the event any "person" or "group" (as such terms are used in Section 13(d) and 14(d) of the Exchange Act), other than the Company or any "person" who on the date hereof is a director or officer of the Company, (i) commences a proxy solicitation to acquire the right to vote more than 15% of the combined voting power of the Company's outstanding securities; provided, however, that if (ii) commences a person tender or group shall become exchange offer subject to Section 14(d) (1) of the Exchange Act to acquire the beneficial owner ownership of 25securities representing 15% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the acquires beneficial ownerownership, directly or indirectly, of securities of the Company representing 9.55% or more of the combined voting power of the Company's then outstanding voting securities carrying securities, which proxy solicitation or tender or exchange offer or acquisition of beneficial ownership was not approved in advance by the right to vote in elections of persons to Board, and the Board increases in response to such proxy solicitation or tender or exchange offer or when such proxy solicitation or tender or exchange offer is ongoing or in response to and within one (1) year of such acquisition of beneficial ownership approves a transaction which results in any person or group (including but not limited to such person or group who initiated the proxy solicitation, tender or exchange offer or who made such acquisition of such beneficial ownership but specifically excluding the Company or any "person" who is on the date hereof a director or officer of the Company) acquiring beneficial ownership of, directly or indirectly, securities by an additional five percentage points or more thereby beneficially owning 14.5of the Company representing 15% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control combined voting power of the Company has occurred. You agree that, subject to the terms and conditions of this Agreement, Company's outstanding securities or which results in the event sale, lease, transfer, exchange or other transfer (in one transaction or a series of a Potential Change in Control related transactions) of all, or substantially all of the assets of the Company, you will remain in the employ of the Company (or the subsidiary thereof by which you are employed at the date then such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, (y) the termination by you of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Company.transaction shall not be considered
Appears in 1 contract
Change in Control. A “Change in Control” shall be deemed to have occurred upon the occurrence of any one of the following events:
(a) Change in Control means and includes each of the following:
(i) the acquisition, directly or indirectly, by any "“person" or "group" (,” as those terms are defined such term is used in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange “Act"”) and the rules thereunder) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% or more of the combined voting power of other than the Company's then outstanding voting securities, other than
(A) an acquisition by a trustee any of its subsidiaries, or any trustee, fiduciary or other fiduciary person or entity holding securities under any employee benefit plan (or related trust) sponsored or maintained by trust of the Company or any person controlled by of its subsidiaries), together with all “affiliates” and “associates” (as such terms are defined in Rule 12b-2 under the Company or by any employee benefit plan (or related trustAct) sponsored or maintained by the Company or any person controlled by the Companyof such person, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(C) an acquisition of voting securities pursuant to a transaction described in clause (iii) below that would not be a Change in Control under clause (iii); Notwithstanding the foregoing, neither of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition of the Company's securities by the Company which causes the Company's voting securities beneficially owned by a person or group to represent 25% or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of 25% or more of the combined voting power of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction
(A) which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto.
(b) For purposes of this Agreement, a "Potential Change in Control of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the “beneficial owner” (as such term is defined in Rule 13d-3 under the Act), directly or indirectly, of securities of the Company representing 9.5% 25 percent or more of the combined voting power of the Company's ’s then outstanding voting securities carrying having the right to vote in elections an election of persons to the Board increases (“Voting Securities”) (in such beneficial ownership case other than as a result of such an acquisition of securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securitiesdirectly from the Company); or
(ivb) The Board adopts a resolution to the effect that, for purposes consummation of this Agreement, a Potential Change in Control (i) any consolidation or merger of the Company has occurred. You agree that, subject to where the terms and conditions of this Agreement, in the event of a Potential Change in Control stockholders of the Company, you will remain immediately prior to the consolidation or merger, would not, immediately after the consolidation or merger, beneficially own (as such term is defined in Rule 13d-3 under the Act), directly or indirectly, shares representing in the employ aggregate more than 25 percent of the voting shares of the Company issuing cash or securities in the consolidation or merger (or of its ultimate parent corporation, if any), or (ii) any sale or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control assets of the Company. Notwithstanding the foregoing, a “Change in Control” shall not be deemed to have occurred for purposes of the foregoing clause (ya) solely as the termination result of an acquisition of securities by you the Company that, by reducing the number of your employment shares of Voting Securities outstanding, increases the proportionate number of shares of Voting Securities beneficially owned by reasons any person to 25 percent or more of Disability or Retirement the combined voting power of all then outstanding Voting Securities; provided, however, that if any person referred to in this sentence shall thereafter become the beneficial owner of any additional shares of Voting Securities (at your normal retirement age)other than pursuant to a stock split, as defined in Subsection 3(a) or your termination by reason of deathstock dividend, or (zsimilar transaction or as a result of an acquisition of securities directly from the Company) and immediately thereafter beneficially owns 25 percent or more of the occurrence combined voting power of all then outstanding Voting Securities, then a “Change in Control Control” shall be deemed to have occurred for purposes of the Companyforegoing clause (a).
Appears in 1 contract
Samples: Change in Control Agreement (Brookline Bancorp Inc)
Change in Control. (a) For purposes of this Agreement, Change in of Control means and includes each the occurrence of any of the followingfollowing events:
(i) the acquisition, directly The accumulation in any number of related or indirectly, unrelated transactions by any "person" or "group" person of beneficial ownership (as those terms are defined such term is used in Sections 3(a)(9)Rule 13d-3, 13(d) and 14(d) of promulgated under the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act") and the rules thereunder”)) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 25% 50 percent or more of the combined total voting power of the Company's then outstanding ’s voting securitiesstock; provided that for purposes of this subsection (a), other than
a Change in Control will not be deemed to have incurred if the accumulation of 50 percent or more of the voting power of the Company’s voting stock results from any acquisition of voting stock (Ai) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or Company, (ii) by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(B) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company’s subsidiaries, or
or (Ciii) an acquisition of voting securities by any person pursuant to a merger, consolidation, reorganization or other transaction described in clause (iiia “Business Combination”) below that would not be cause a Change in Control under clause subsection (iii); Notwithstanding ii) below;
(ii) A consummation of a Business Combination, unless, immediately following that Business Combination, substantially all the foregoing, neither persons who were the beneficial owners of the following events shall constitute an "acquisition" by any person or group for purposes of this clause (a): an acquisition voting stock of the Company's securities by the Company which causes the Company's voting securities immediately prior to that Business Combination beneficially owned by a person own, directly or group to represent 25% or more indirectly, at least 50 percent of the combined voting power of the voting stock of the entity resulting from that Business Combination (including, without limitation, an entity that as a result of that transaction owns the Company's then outstanding voting securities; provided, howeveror all or substantially all of the Company assets, that if a person either directly or group shall become the beneficial owner of 25% through one or more subsidiaries) in substantially the same proportions relative to each other as the ownership, immediately prior to that Business Combination, of the combined voting power stock of the Company's then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change in Control; or
(ii) During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clauses (i) or (iii) of this Section) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or;
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a A sale or other disposition of all or substantially all of the Company's assets or of the Company except pursuant to a Business Combination that would not cause a Change in Control under subsection (zii) the acquisition of assets or stock of another entity, in each case other above;
(iv) At any time less than a transaction
(A) which results in majority of the Company's voting securities outstanding immediately before members of the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities Board of Directors of the Company or any entity resulting from any Business Combination are Incumbent Board Members;
(v) Approval by the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business shareholders of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least of a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 25% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (B) as beneficially owning 25% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company's stockholders approve a complete liquidation or dissolution of the Company.
(v) The Human Resources Committee of the Board (the "Committee") shall have full and final authority, which shall be exercised in its discretion, except pursuant to determine conclusively whether a Business Combination that would not cause a Change in Control under subsection (ii) above;
(vi) Any other transaction or event that the Board of Directors of the Company has occurred pursuant to the above definition, and the date of the occurrence of such identifies as a Change in Control and any incidental matters relating thereto.for purposes of this Agreement; or
(bvii) For purposes of this Agreement, (x) an “Incumbent Board Member” shall mean any individual, other than the Executive, who either is (a) a "Potential Change in Control member of the Company Board of Directors as of the Effective Date or (b) a member who becomes a member of the Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter ’s Board of intent, the consummation of which would result in the occurrence of a Change in Control of the Company;
(ii) Any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the Company, or a trustee or other fiduciary holding securities under an employee benefit plan of the Company) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 9.5% or more of the Company's then outstanding voting securities carrying the right to vote in elections of persons Directors subsequent to the Board increases such beneficial ownership of such securities by an additional five percentage points or more thereby beneficially owning 14.5% or more of such securities; or
(iv) The Board adopts a resolution to the effect that, for purposes Effective Date of this Agreement, whose election or nomination by the Company’s shareholders, was approved by a Potential Change in Control vote of at least a majority of the then Incumbent Board Members (either by specific vote or by approval of a proxy statement of the Company has occurred. You agree thatin which that person is named as a nominee for director, subject without objection to that nomination), but excluding, for that purpose, any individual whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14A-11 of the Exchange Act) with respect to the terms and conditions election or removal of this Agreement, in the event directors or other actual threatened solicitation of a Potential Change in Control proxies or consents by or on behalf of the Company, you will remain in the employ person other than a board of the Company (or the subsidiary thereof by which you are employed at the date such Potential Change in Control occurs) until the earliest of (x) a date which is six months from the occurrence of such Potential Change in Control of the Company, directors and (y) the termination by you a person means any individual, corporation, partnership, limited liability company, joint venture, incorporated or unincorporated association, joint-stock company, trusts, unincorporated organization or any other entity of your employment by reasons of Disability or Retirement (at your normal retirement age), as defined in Subsection 3(a) or your termination by reason of death, or (z) the occurrence of a Change in Control of the Companyany kind.
Appears in 1 contract
