Change of Control Compensation. On only one occasion, in the event of a Change of Control of Employer during the Employment Term or within 6 months after a termination of the Employment Term by Employer pursuant to Sections 5(a)(i) or 5(a)(iii) in contemplation of such Change of Control or by Executive pursuant to Section 5(b)(i), Employer shall pay to Executive, within 30 days after the date of such Change of Control, in one lump sum, subject to withholding for applicable federal, state and local taxes, an amount equal to (a) if the Change of Control occurs before December 31, 1997, $700,000; and (b) if the Change of Control occurs after December 31, 1997, two times the sum of (i) Executive's Base Compensation for the prior calendar year and (ii) Executive's Bonus with respect to the prior calendar year, and any retention payments paid or payable to Executive within the twelve month period prior to the Change of Control, in each case, annualized if the Employment Term was less than a full year in such year (which, as of 12/19/97, totals $1.1 million) ("Change of Control Compensation"); provided, however, Executive may, at her election, and only at her election, (i) extend the otherwise effective duration of the covenants under Section 6(b) (excluding those relating to the private practice of law) by up to an additional 24 months, in exchange for a payment to her by Employer of $24,000 per month with respect to the first 12 months of such extension and $12,000 per month with respect to the next 12 months of such extension, payable in the same manner and at the same time as the Change of Control Compensation; and provided further that Executive agrees to and accepts an offsetting reduction, on a dollar-for-dollar basis, in the Change of Control Compensation and in no event shall the aggregate amount of such additional payments exceed the amount by which the Change of Control Compensation is so reduced or, in the alternative, (ii) elect to terminate the Employment Term pursuant to Section 5(b)(i), whereby the Termination Compensation payable in respect thereto shall reduce the Change of Control Compensation on a dollar-for-dollar basis by the amount of the Termination Compensation received by her. Any such election by Executive shall be made within thirty days after a Change of Control.
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Change of Control Compensation. On only one occasion, in the event of a Change of Control of Employer during the Employment Term or within 6 months after a termination of the Employment Term by Employer pursuant to Sections 5(a)(i) or 5(a)(iii) in contemplation of such Change of Control or by Executive pursuant to Section 5(b)(i), Employer shall pay to Executive, within 30 days after the date of such Change of Control, in one lump sum, subject to withholding for applicable federal, state and local taxes, an amount equal to (a) if the Change of Control occurs before December 31, 1997, $700,000; 700,000 and (b) if the Change of Control occurs after December 31, 1997, two times the sum of (i) Executive's Base Compensation for the prior calendar year and (ii) Executive's Bonus with respect to the prior calendar year, and any retention payments paid or payable to Executive within the twelve month period prior to the Change of Control, in each case, annualized if the Employment Term was less than a full year in such year (which, as of 12/19/97, totals $1.1 million) ("Change of Control Compensation"); provided, however, Executive may, at her election, and only at her election, (i) extend the otherwise effective duration of the covenants under Section 6(b) (excluding those relating to the private practice of law) by up to an additional 24 months, in exchange for a payment to her by Employer of $24,000 per month with respect to the first 12 months of such extension and $12,000 per month with respect to the next 12 months of such extension, payable in the same manner and at the same time as the Change of Control Compensation; and provided further that Executive agrees to and accepts an offsetting reduction, on a dollar-for-dollar basis, in the Change of Control Compensation and in no event shall the aggregate amount of such additional payments exceed the amount by which the Change of Control Compensation is so reduced or, in the alternative, (ii) elect to terminate the Employment Term pursuant to Section 5(b)(i), whereby the Termination Compensation payable in respect thereto shall reduce the Change of Control Compensation on a dollar-for-dollar basis by the amount of the Termination Compensation received by her. Any such election by Executive shall be made within thirty days after a Change of Control. For purposes of this Agreement, a "Change of Control" shall be deemed to have occurred if:
(a) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), other than (i) a trustee or other fiduciary holding securities under an employee benefit plan of the Company, (ii) a corporation owned directly or indirectly by the stockholders of Employer in substantially the same proportions as their ownership of stock of Employer, or controlled directly or indirectly by the stockholders of Employer, or (iii) Davix X. Xxxxxxxx xx any of his affiliates becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Employer representing 50% or more of the total voting power represented by Employer's then outstanding securities which vote generally in the election of directors (referred to herein as "Voting Securities"); or
(b) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board and any new directors whose election by the Board or nomination for election by Employer'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 period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority of the Board; or
(c) the stockholders of Employer approve a merger or consolidation of Employer with any other corporation, other than a merger or consolidation which would result in the Voting Securities of Employer outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 50% of the total voting power represented by the Voting Securities of Employer or such surviving entity outstanding immediately after such merger or consolidation, and such transaction is consummated; or
(d) the stockholders of Employer approve a plan of complete liquidation of Employer or an agreement for the sale, assignment, conveyance, transfer, lease or other disposition by Employer of (in one transaction or a series of transactions) all or substantially all of Employer's assets, and such transaction is consummated.
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Change of Control Compensation. On only one occasion, in the event of a Change of Control of Employer during the Employment Term or within 6 months after a termination of the Employment Term by Employer pursuant to Sections 5(a)(i) or 5(a)(iii) in contemplation of such Change of Control or by Executive pursuant to Section 5(b)(i), Employer shall pay to Executive, within 30 days after the date of such Change of Control, in one lump sum, subject to withholding for applicable federal, state and local taxes, an amount equal to the lesser of (a) if the Change of Control occurs before December 31, 1997, $700,000; 2,595,000 and (b) if the Change of Control occurs after December 31, 1997, two 2.99 times the sum of (i) Executive's Base Compensation for the prior calendar year and "base amount" (ii) Executive's Bonus with respect to the prior calendar year, and any retention payments paid or payable to Executive within the twelve month period prior to the Change of Control, as such term is used in each case, annualized if the Employment Term was less than a full year in such year (which, as of 12/19/97, totals $1.1 millionCode Section 280G) ("Change of Control Compensation"); provided, however, Executive may, at her election, and only at her election, (i) extend the otherwise effective duration of the covenants under Section 6(b) (excluding those relating to the private practice of law) by up to an additional 24 months, in exchange for a payment to her by Employer of $24,000 per month with respect to the first 12 months of such extension and $12,000 per month with respect to the next 12 months of such extension, payable that in the same manner and at the same time as event that tax is imposed on Executive under Code Section 4999 that would not have been imposed had Executive not received the Change of Control Compensation; and provided further that Executive agrees to and accepts an offsetting reduction, on a dollar-for-dollar basis, in the amount of the Change of Control Compensation shall be increased such that the actual net after-tax amount, taking into account such increase and in no event shall the aggregate federal and state income tax and the tax imposed by Code Section 4999 on such increase, equals the hypothetical net after-tax amount of such additional payments exceed the amount by which that Executive would have received if the Change of Control Compensation was not increased and no tax was imposed by Code Section 4999 as a result of the Change of Control Compensation. For purposes of this Agreement, a "Change of Control" shall be deemed to have occurred if:
(a) any "person" (as such term is so reduced orused in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, in as amended (the alternative"Exchange Act")), other than (i) a trustee or other fiduciary holding securities under an employee benefit plan of the Company, (ii) elect to terminate a corporation owned directly or indirectly by the Employment Term pursuant to Section 5(b)(istockholders of Employer in substantially the same proportions as their ownership of stock of Employer, or controlled directly or indirectly by the stockholders of Employer, or (iii) Davix X. Xxxxxxxx xx any of his affiliates becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), whereby directly or indirectly, of securities of Employer representing 50% or more of the Termination Compensation payable total voting power represented by Employer's then outstanding securities which vote generally in respect thereto shall reduce the Change election of Control Compensation on a dollar-for-dollar basis directors (referred to herein as "Voting Securities"); or
(b) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board and any new directors whose election by the amount Board or nomination for election by Employer's stockholders was approved by a vote of at least two-thirds of the Termination Compensation received directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority of the Board; or
(c) the stockholders of Employer approve a merger or consolidation of Employer with any other corporation, other than a merger or consolidation which would result in the Voting Securities of Employer outstanding immediately prior thereto continuing to represent (either by her. Any remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 50% of the total voting power represented by the Voting Securities of Employer or such election surviving entity outstanding immediately after such merger or consolidation, and such transaction is consummated; or
(d) the stockholders of Employer approve a plan of complete liquidation of Employer or an agreement for the sale, assignment, conveyance, transfer, lease or other disposition by Executive shall be made within thirty days after Employer of (in one transaction or a Change series of Controltransactions) all or substantially all of Employer's assets, and such transaction is consummated.
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Change of Control Compensation. On only one occasion, in the event of a Change of Control of Employer during the Employment Term or within 6 months after a termination of the Employment Term by Employer pursuant to Sections 5(a)(i) or 5(a)(iii) in contemplation of such Change of Control or by Executive pursuant to Section 5(b)(i), Employer shall pay to Executive, within 30 days after the date of such Change of Control, in one lump sum, subject to withholding for applicable federal, state and local taxes, an amount equal to the lesser of (a) if the Change of Control occurs before December 31, 1997, $700,000; 385,000 and (b) if the Change of Control occurs after December 31, 1997, two 2.99 times the sum of (i) Executive's Base Compensation for the prior calendar year and "base amount" (ii) Executive's Bonus with respect to the prior calendar year, and any retention payments paid or payable to Executive within the twelve month period prior to the Change of Control, as such term is used in each case, annualized if the Employment Term was less than a full year in such year (which, as of 12/19/97, totals $1.1 millionCode Section 280G) ("Change of Control Compensation"); provided, however, Executive maythat in the event that such amount when aggregated with any other amounts that are or, at her electionabsent this provision, and only at her election, would be "parachute payments" (ias such term is used in Code Section 280G) extend the otherwise effective duration of the covenants under Section 6(b) (excluding those relating to the private practice of law) by up to an additional 24 months, in exchange for a payment to her by Employer of $24,000 per month with respect to Executive exceeds 2.99 times Executive's base amount, then the first 12 months amount of such extension and $12,000 per month with respect to the next 12 months of such extension, payable in the same manner and at the same time as the Change of Control Compensation; and provided further that Executive agrees to and accepts an offsetting reduction, on a dollar-for-dollar basis, in the Change of Control Compensation and in no event shall be reduced such that when aggregated with such other amounts, the aggregate amount shall not exceed 2.99 times Executive's base amount if and only if the net after-tax amount received by Executive, taking into account such reduction, exceeds the net after-tax amount, taking into account any additional tax as a result of such additional payments exceed the application of Code Section 4999, that Executive would have received if the amount by which of the Change of Control Compensation had not been reduced. For purposes of this Agreement, a "Change of Control" shall be deemed to have occurred if:
(a) any "person" (as such term is so reduced orused in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, in as amended (the alternative"Exchange Act")), other than (i) a trustee or other fiduciary holding securities under an employee benefit plan of the Company, (ii) elect to terminate a corporation owned directly or indirectly by the Employment Term pursuant to Section 5(b)(istockholders of Employer in substantially the same proportions as their ownership of stock of Employer, or controlled directly or indirectly by the stockholders of Employer, or (iii) Davix X. Xxxxxxxx xx any of his affiliates becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), whereby directly or indirectly, of securities of Employer representing 50% or more of the Termination Compensation payable total voting power represented by Employer's then outstanding securities which vote generally in respect thereto shall reduce the Change election of Control Compensation on a dollar-for-dollar basis directors (referred to herein as "Voting Securities"); or
(b) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board and any new directors whose election by the amount Board or nomination for election by Employer's stockholders was approved by a vote of at least two-thirds of the Termination Compensation received directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority of the Board; or
(c) the stockholders of Employer approve a merger or consolidation of Employer with any other corporation, other than a merger or consolidation which would result in the Voting Securities of Employer outstanding immediately prior thereto continuing to represent (either by her. Any remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 50% of the total voting power represented by the Voting Securities of Employer or such election surviving entity outstanding immediately after such merger or consolidation, and such transaction is consummated; or
(d) the stockholders of Employer approve a plan of complete liquidation of Employer or an agreement for the sale, assignment, conveyance, transfer, lease or other disposition by Executive shall be made within thirty days after Employer of (in one transaction or a Change series of Controltransactions) all or substantially all of Employer's assets, and such transaction is consummated.
Appears in 1 contract
Change of Control Compensation. On only one occasion, in the event of a Change of Control of Employer during the Employment Term or within 6 months after a termination of the Employment Term by Employer pursuant to Sections 5(a)(i) or 5(a)(iii) in contemplation of such Change of Control or by Executive pursuant to Section 5(b)(i), Employer shall pay to Executive, within 30 days after the date of such Change of Control, in one lump sum, subject to withholding for applicable federal, state and local taxes, an amount equal to the lesser of (a) if the Change of Control occurs before December 31, 1997, $700,000; 310,000 and (b) if the Change of Control occurs after December 31, 1997, two 2.99 times the sum of (i) Executive's Base Compensation for the prior calendar year and "base amount" (ii) Executive's Bonus with respect to the prior calendar year, and any retention payments paid or payable to Executive within the twelve month period prior to the Change of Control, as such term is used in each case, annualized if the Employment Term was less than a full year in such year (which, as of 12/19/97, totals $1.1 millionCode Section 280G) ("Change of Control Compensation"); provided, however, Executive maythat in the event that such amount when aggregated with any other amounts that are or, at her electionabsent this provision, and only at her election, would be "parachute payments" (ias such term is used in Code Section 280G) extend the otherwise effective duration of the covenants under Section 6(b) (excluding those relating to the private practice of law) by up to an additional 24 months, in exchange for a payment to her by Employer of $24,000 per month with respect to Executive exceeds 2.99 times Executive's base amount, then the first 12 months amount of such extension and $12,000 per month with respect to the next 12 months of such extension, payable in the same manner and at the same time as the Change of Control Compensation; and provided further that Executive agrees to and accepts an offsetting reduction, on a dollar-for-dollar basis, in the Change of Control Compensation and in no event shall be reduced such that when aggregated with such other amounts, the aggregate amount shall not exceed 2.99 times Executive's base amount if and only if the net after-tax amount received by Executive, taking into account such reduction, exceeds the net after-tax amount, taking into account any additional tax as a result of such additional payments exceed the application of Code Section 4999, that Executive would have received if the amount by which of the Change of Control Compensation had not been reduced. For purposes of this Agreement, a "Change of Control" shall be deemed to have occurred if:
(a) any "person" (as such term is so reduced orused in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, in as amended (the alternative"Exchange Act")), other than (i) a trustee or other fiduciary holding securities under an employee benefit plan of the Company, (ii) elect to terminate a corporation owned directly or indirectly by the Employment Term pursuant to Section 5(b)(istockholders of Employer in substantially the same proportions as their ownership of stock of Employer, or controlled directly or indirectly by the stockholders of Employer, or (iii) Davix X. Xxxxxxxx xx any of his affiliates becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), whereby directly or indirectly, of securities of Employer representing 50% or more of the Termination Compensation payable total voting power represented by Employer's then outstanding securities which vote generally in respect thereto shall reduce the Change election of Control Compensation on a dollar-for-dollar basis directors (referred to herein as "Voting Securities"); or
(b) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board and any new directors whose election by the amount Board or nomination for election by Employer's stockholders was approved by a vote of at least two-thirds of the Termination Compensation received directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority of the Board; or
(c) the stockholders of Employer approve a merger or consolidation of Employer with any other corporation, other than a merger or consolidation which would result in the Voting Securities of Employer outstanding immediately prior thereto continuing to represent (either by her. Any remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 50% of the total voting power represented by the Voting Securities of Employer or such election surviving entity outstanding immediately after such merger or consolidation, and such transaction is consummated; or
(d) the stockholders of Employer approve a plan of complete liquidation of Employer or an agreement for the sale, assignment, conveyance, transfer, lease or other disposition by Executive shall be made within thirty days after Employer of (in one transaction or a Change series of Controltransactions) all or substantially all of Employer's assets, and such transaction is consummated.
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