Change of Control Fee. (i) In the event of a Change of Control Transaction during the Initial Term, any Automatic Renewal Term or the period from and including the Termination Date until the date that is the three (3) month anniversary of the Termination Date, the Company shall pay a fee in an amount equal to one percent (1.0%) of the aggregate Consideration in connection with the Change of Control Transaction (the “Change of Control Transaction Fee”). Any Change of Control Transaction Fee shall be payable at the closing of the Change of Control Transaction to which such Change of Control Transaction Fee relates. The term “Consideration” shall mean the total amount of cash and the fair market value of other property paid or payable (including amounts paid into escrow) to the Company, its subsidiaries and/or their respective shareholders in connection with the Change of Control Transaction, including amounts paid or payable to acquire unexercised or unconverted warrants, convertible securities, options or similar rights, whether or not vested, which shall be deemed to include the value of any options, warrants or convertible securities of the Company which are assumed by the acquiror or amended to provide that they are exercisable for or convertible into capital stock of the acquiror, plus, without duplication, the principal amount of all indebtedness for borrowed money or similar non-trade related liabilities (including on balance sheet pension deficits and any other quantified liabilities incurred or accrued in relation to pension obligations, guarantees or capitalized leases) (collectively, “Indebtedness”) of the Company and its subsidiaries outstanding immediately prior to consummation of the Change of Control Transaction or, in the case of a sale of assets, all Indebtedness of the Company and its subsidiaries assumed or refinanced by the acquiror. If a Change of Control Transaction, other than a sale of assets, results in a majority (but less than all) of the stock of the Company having been acquired, the Consideration shall be calculated pursuant to this Section 5(c)(i) as an acquisition of stock in which all of the stock of the Company had been acquired at a price equal to the highest price per share paid by the acquiror for any shares it acquired at the time of the Change of Control Transaction.
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Samples: External Management Agreement (DDR Corp), External Management Agreement (Retail Value Inc.), External Management Agreement (Retail Value Inc.)
Change of Control Fee. (i) In the event of a. If within 24 months following a Change of Control Transaction during of the Initial TermCompany, any Automatic Renewal Term the Executive terminates his employment with the Company with Good Reason, or the period from and including Company terminates the Termination Date until Executive’s employment without Cause, provided Executive complies with the release requirements of Section 7(F), the Executive will be entitled to a (1) cash payment equal to the sum of (i) two (2) times the Executive’s current Base Salary as of the date that is the three (3) month anniversary of the Termination Date, the Company shall pay a fee in an amount equal to one percent (1.0%) of the aggregate Consideration in connection with the Change of Control Transaction Control, and (ii) four (4) times the “Change of Control Transaction Fee”). Any Change of Control Transaction Fee shall be payable at maximum cash bonus that the closing Executive could have earned in the year of the Change of Control Transaction (collectively, the “Cash Payments”) and (2) except as otherwise provided in an award agreement, any equity or stock based awards previously granted to which such the Executive will become fully vested and exercisable and all restrictions on restricted awards will lapse. The Cash Payments shall be made in a single lump sum payment within 60 days of the date of the Executive’s Separation from Service. To the extent that any disputes arise involving the terms and conditions of this Agreement (or the termination of the Executive’s employment) following a Change of Control Transaction Fee relates. The term “Consideration” Control, the Executive shall mean be entitled to reimbursement by the total amount of cash Company for his reasonable attorneys’ fees and the fair market value of other property paid or payable (including amounts paid into escrow) to the Company, its subsidiaries and/or their respective shareholders legal fees and expenses incurred in connection with the Change of Control Transaction, including amounts paid contesting or payable disputing any such termination or seeking to acquire unexercised obtain or unconverted warrants, convertible securities, options enforce any right or similar rights, whether or not vested, which benefit provided for under this Agreement. Any such fees and expenses shall be deemed to include reimbursed by the value of any options, warrants or convertible securities Company as they are incurred. All reimbursements will be made no later than December 31 of the calendar year following the calendar year in which the expense was incurred. The amounts reimbursed in one taxable year will not affect the amounts eligible for reimbursement by Company which are assumed by the acquiror in a different taxable year. Executive may not elect to receive cash or amended to provide that they are exercisable for or convertible into capital stock any other benefit in lieu of the acquiror, plus, without duplication, the principal amount reimbursement of all indebtedness for borrowed money or similar non-trade related liabilities (including on balance sheet pension deficits legal fees and any other quantified liabilities incurred or accrued in relation to pension obligations, guarantees or capitalized leases) (collectively, “Indebtedness”) of the Company and its subsidiaries outstanding immediately prior to consummation of the Change of Control Transaction or, in the case of a sale of assets, all Indebtedness of the Company and its subsidiaries assumed or refinanced expenses provided by the acquirorthis Section 8(B). If Executive is entitled to a Change of Control Transaction, other than a sale of assets, results in a majority (but less than all) of the stock of the Company having been acquired, the Consideration shall be calculated payment pursuant to this Section 5(c)(i) as an acquisition 8, the Executive shall be ineligible for any payment due pursuant to Section 7.
b. For purposes of stock this Agreement, “Change of Control” shall mean a “change in which all the ownership or effective control of a corporation,” or a “change in the ownership of a substantial portion of the stock assets of a corporation” within the meaning of Code Section 409A (treating the Company as the relevant corporation) provided, however, that for purposes of determining a “change in the effective control,” “50 percent” shall be used instead of “30 percent” and for purposes of determining a “substantial portion of the Company had been acquired at a price equal to the highest price per share paid by the acquiror for any shares it acquired at the time assets of the Change corporation,” “85 percent” shall be used instead of Control Transaction“40 percent.”
Appears in 1 contract
Samples: Employment Agreement (Global Water Resources, Inc.)
Change of Control Fee. (i) In the event of A. If within 24 months following a Change of Control Transaction during of the Initial TermCompany, any Automatic Renewal Term the Executive terminates his employment with the Company with Good Reason, or the period from and including Company terminates the Termination Date until Executive’s employment without Cause, provided Executive complies with the release requirements of Section 7(F), the Executive will be entitled to (1) a cash payment equal to the sum of (i) two (2) times the Executive’s current Base Salary as of the date that is the three (3) month anniversary of the Termination Date, the Company shall pay a fee in an amount equal to one percent (1.0%) of the aggregate Consideration in connection with the Change of Control Transaction Control, and (ii) four (4) times the “Change of Control Transaction Fee”). Any Change of Control Transaction Fee shall be payable at maximum cash bonus that the closing Executive could have earned in the year of the Change of Control Transaction (collectively, the “Cash Payments”) and (2) except as otherwise provided in an award agreement, any equity or stock based awards previously granted to which such the Executive will become fully vested and exercisable and all restrictions on restricted awards will lapse. The Cash Payments shall be made in a single lump sum payment within 60 days of the date of the Executive’s Separation from Service. To the extent that any disputes arise involving the terms and conditions of this Agreement (or the termination of the Executive’s employment) following a Change of Control Transaction Fee relatesControl, the Executive shall be entitled to reimbursement by the Company for his reasonable attorneys’ fees and other legal fees and expenses incurred in connection with contesting or disputing any such termination or seeking to obtain or enforce any right or benefit provided for under this Agreement. Any such fees and expenses shall be reimbursed by the Company as they are incurred. All reimbursements will be made no later than December 31 of the calendar year following the calendar year in which the expense was incurred. The term amounts reimbursed in one taxable year will not affect the amounts eligible for reimbursement by Company in a different taxable year. Executive may not elect to receive cash or any other benefit in lieu of the reimbursement of legal fees and expenses provided by this Section 8(A). If Executive is entitled to a payment pursuant to this Section 8, the Executive shall be ineligible for any payment due pursuant to Section 7.
B. For purposes of this Agreement, “ConsiderationChange of Control” shall mean (i) a “change in the total amount ownership or effective control of cash a corporation” within the meaning of Code Section 409A (treating the Company as the relevant corporation) provided, however, that for purposes of determining a “change in the effective control,” “50 percent” shall be used instead of “30 percent,” (ii) a “change in the ownership of a substantial portion of the assets of a corporation” within the meaning of Code Section 409A (treating the Company as the relevant corporation) provided, however, that for purposes of determining a “substantial portion of the assets of the corporation,” “85 percent” shall be used instead of “40 percent,” or (iii) individuals who, as of the Effective Date of this Agreement constitute the Board and individuals whose election or nomination for election as a member of the fair market value Board of Directors was approved by the directors then in office (the “Incumbent Directors”) cease for any reason to constitute at least a majority of the Board, provided, however, that no individual initially elected or nominated as a director of the Company as a result of an actual or threatened election contest (as described in Rule 14a-11 under the Exchange Act) (“Election Contest”) or other property paid actual or payable threatened solicitation of proxies or consents by or on behalf of any “person” (including amounts paid into escrowas such term is defined in Section 3(a)(9) to of the Company, its subsidiaries and/or their respective shareholders Exchange Act and as used in connection with Section 13(d)(3) and 14(d)(2) of the Change of Control TransactionExchange Act) other than the Board (“Proxy Contest”), including amounts paid by reason of any agreement intended to avoid or payable to acquire unexercised settle any Election Contest or unconverted warrantsProxy Contest, convertible securities, options or similar rights, whether or not vested, which shall be deemed an Incumbent Director (unless specifically deemed to include the value be an Incumbent Director by a vote of any options, warrants or convertible securities at least a majority of the Company which are assumed by Incumbent Directors before the acquiror or amended to provide that they are exercisable for or convertible into capital stock date of the acquirorappointment or election). Notwithstanding the foregoing, plus, without duplication, the principal amount of all indebtedness for borrowed money or similar non-trade related liabilities (including on balance sheet pension deficits and any other quantified liabilities incurred or accrued in relation payment that is subject to pension obligations, guarantees or capitalized leases) (collectively, “Indebtedness”) Section 409A of the Company and its subsidiaries outstanding immediately prior Code that is to consummation of the Change of Control Transaction or, in the case of a sale of assets, all Indebtedness of the Company and its subsidiaries assumed or refinanced by the acquiror. If be made upon a Change of Control Transaction, other than shall only be made upon an event that constitutes a sale of assets, results change in a majority (but less than all) of the stock of the Company having been acquired, the Consideration shall be calculated pursuant to this Section 5(c)(i) ownership or control as an acquisition of stock described in which all of the stock of the Company had been acquired at a price equal to the highest price per share paid by the acquiror for any shares it acquired at the time of the Change of Control TransactionTreasury Regulation 1.409A-3(i)(5).
Appears in 1 contract
Samples: Employment Agreement (Global Water Resources, Inc.)