Change of Control Provisions. (a) For purposes of this Letter Agreement, a "Change in Control" of the Company shall mean a change in control of a nature that would be required to be reported by it in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), whether or not the Company is then subject to such reporting requirement; provided, that, without limitation, such a change in control shall be deemed to have occurred if: (1) Any person (within the meaning of that term as used in Sections 13(d) and 14(d) of the Exchange Act (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing twenty percent (20%) or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that for purposes of this Agreement the term "Person" shall not include (i) the Company or any of its majority-owned subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company; or (2) The following individuals cease for any reason to constitute a majority of the number of directors then serving on the Board of Directors of the Company; individuals who, on the date hereof, are serving as directors on the Board and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company'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 on the date hereof or whose appointment, election or nomination for election was previously so approved, or (3) There is consummated a merger or consolidation of the Company or a subsidiary thereof with any other corporation, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding securities which represent immediately after such merger or consolidation at least 50% of the combined voting power of the voting securities of the entity surviving the merger or consolidation, (or the parent of such surviving entity) or the shareholders of the Company approve a plan of complete liquidation of the Company, or there is consummated the sale or other disposition of all or substantially all of the Company's assets. (b) If any of the events described above constituting a Change in Control of the Company shall have occurred, you shall be entitled to the benefits provided in Paragraph 7(f) hereof upon the termination of your employment during the term of this Letter Agreement unless such termination is (i) because of your death or disability, (ii) by the Company for Cause, (iii) by you other than for Good Reason, or (iv) on or after the date that you attain age sixty-five (65). In the event your employment with the Company is terminated for any reason prior to the occurrence of a Change in Control, you shall not be entitled to any benefits under this Paragraph 7; provided, however, that if your employment is terminated prior to a Change in Control without Cause at the direction of a person who has entered into an agreement with the Company, the consummation of which will constitute a Change in Control, your employment shall be deemed to have terminated following a Change in Control. Your entitlement to benefits under any of the Company's retirement plans will not adversely affect your rights to receive payments hereunder. (c) Termination by the Company of your employment for "Cause" shall mean termination upon (i) the willful and continued failure by you to substantially perform your duties with the Company (other than any such failure resulting from termination by you for Good Reason), after a demand for substantial performance is delivered to you that specifically identifies the manner in which the Company believes that you have not substantially performed your duties, and you have failed to resume substantial performance of your duties on a continuous basis within fourteen (14) days of receiving such demand, (ii) the willful engaging by you in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise or (iii) your conviction of any felony or conviction of a misdemeanor which impairs your ability substantially to perform your duties with the Company. For purposes of this paragraph, no act, or failure to act, on your part shall be deemed "willful" unless done, or omitted to be done, by you not in good faith and without reasonable belief that your action or omission was in the best interest of the Company.
Appears in 1 contract
Samples: Employment Agreement (Rti International Metals Inc)
Change of Control Provisions. Notwithstanding the foregoing and the provisions of Section 4(b) above, at the request of the Holder delivered at any time commencing on the earliest to occur of (aA) For purposes the public disclosure of any Change of Control, (B) the consummation of any Change of Control and (C) the Holder first becoming aware of any Change of Control through the date that is ninety (90) days after the public disclosure of the consummation of such Change of Control by the Company pursuant to a Report of Foreign Private Issuer on Form 6-K filed with the SEC, the Company or the Successor Entity (as the case may be) shall exchange this Warrant for consideration equal to the Black Scholes Value of such portion of this Letter AgreementWarrant subject to exchange (collectively, the “Aggregate Black Scholes Value”) in the form of, at the Company’s election (such election to pay in cash or by delivery of the Rights (as defined below), a "“Consideration Election”), either (I) rights (with a beneficial ownership limitation in the form of Section 1(f) hereof, mutatis mutandis) (collectively, the “Rights”), convertible in whole, or in part, at any time, without the requirement to pay any additional consideration, at the option of the Holder, into such Corporate Event Consideration applicable to such Change of Control equal in Control" value to the Aggregate Black Scholes Value (as determined in accordance with Section 2(b)(iv) above, but with the aggregate number of Successor Shares (as defined below) issuable upon conversion of the Rights to be determined in increments of 10% (or such greater percentage as the Holder may notify the Company from time to time) of the portion of the Aggregate Black Scholes Value attributable to such Successor Shares (the “Successor Share Value Increment”), with the aggregate number of Successor Shares issuable upon exercise of the Rights with respect to the first Successor Share Value Increment determined based on 70% of the Closing Bid Price of the Successor Shares on the date the Rights are issued and on each of the nine (9) subsequent Trading Days, in each case, the aggregate number of additional Successor Shares issuable upon exercise of the Rights shall be determined based upon a Successor Share Value Increment at 70% of the Closing Bid Price of the Successor Shares in effect for such corresponding Trading Day (such ten (10) Trading Day period commencing on, and including, the date the Rights are issued, the “Rights Measuring Period”)), or (II) in cash; provided, that the Company shall mean not consummate a change in control Change of a nature that would be required to be reported by it in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under Control if the Securities Exchange Act of 1934, as amended Corporate Event Consideration includes share capital or other equity interest (the "Exchange Act"), whether or not the Company is then subject to such reporting requirement; provided, thatincluding, without limitation, such a change Common Shares) (the “Successor Shares”) either in control shall be deemed to have occurred if:
(1) Any person (within an entity that is not listed on an Eligible Market or an entity in which the meaning of that term as used in Sections 13(d) and 14(d) daily share volume for the applicable Successor Shares for each of the Exchange Act twenty (a "Person"20) Trading Days prior to the date of consummation of such Change of Control is or becomes less than the "beneficial owner" (as defined aggregate number of Successor Shares issuable to the Holder upon conversion in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities full of the Company representing twenty percent applicable Rights (20%) or more without regard to any limitations on conversion therein, assuming the exercise in full of the combined voting power of the Company's then outstanding voting securities; provided, however, that for purposes of this Agreement the term "Person" shall not include (i) the Company or any of its majority-owned subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company; or
(2) The following individuals cease for any reason to constitute a majority of the number of directors then serving on the Board of Directors of the Company; individuals who, Rights on the date hereof, are serving as directors of issuance of the Rights and assuming the Closing Bid Price of the Successor Shares for each Trading Day in the Rights Measuring Period is the Closing Bid Price on the Board and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating Trading Day ended immediately prior to the election time of directors consummation of the CompanyChange of Control). The Company shall give the Holder written notice of each Consideration Election at least twenty (20) whose appointment Trading Days prior to the time of consummation of such Change of Control. Payment of such amounts or election delivery of the Rights, as applicable, shall be made by the Board Company (or nomination for election by at the Company's stockholders was approved by a vote of at least two-thirds (2/3’s direction) of to the directors then still in office who either were directors Holder on the later of (x) the second (2nd) Trading Day after the date hereof or whose appointmentof such request and (y) the date of consummation of such Change of Control (or, election or nomination for election was previously so approvedwith respect to any Right, or
(3if applicable, such later time that holders of Common Shares are initially entitled to receive Corporate Event Consideration with respect to the Common Shares of such holder). Any Corporate Event Consideration included in the Right, if any, pursuant to this Section 4(c) There is consummated a merger or consolidation pari passu with the Corporate Event Consideration to be paid to holders of Common Shares and the Company or shall not permit a subsidiary thereof with payment of any other corporation, other than a merger or consolidation which would result in Corporate Event Consideration to the holders of Common Shares without on or prior to such time delivering the voting securities of the Company outstanding immediately prior thereto holding securities which represent immediately after such merger or consolidation at least 50% of the combined voting power of the voting securities of the entity surviving the merger or consolidation, (or the parent of such surviving entity) or the shareholders of the Company approve a plan of complete liquidation of the Company, or there is consummated the sale or other disposition of all or substantially all of the Company's assets.
(b) If any of the events described above constituting a Change in Control of the Company shall have occurred, you shall be entitled Right to the benefits provided in Paragraph 7(f) hereof upon the termination of your employment during the term of this Letter Agreement unless such termination is (i) because of your death or disability, (ii) by the Company for Cause, (iii) by you other than for Good Reason, or (iv) on or after the date that you attain age sixty-five (65). In the event your employment with the Company is terminated for any reason prior to the occurrence of a Change in Control, you shall not be entitled to any benefits under this Paragraph 7; provided, however, that if your employment is terminated prior to a Change in Control without Cause at the direction of a person who has entered into an agreement with the Company, the consummation of which will constitute a Change in Control, your employment shall be deemed to have terminated following a Change in Control. Your entitlement to benefits under any of the Company's retirement plans will not adversely affect your rights to receive payments Holder hereunder.
(c) Termination by the Company of your employment for "Cause" shall mean termination upon (i) the willful and continued failure by you to substantially perform your duties with the Company (other than any such failure resulting from termination by you for Good Reason), after a demand for substantial performance is delivered to you that specifically identifies the manner in which the Company believes that you have not substantially performed your duties, and you have failed to resume substantial performance of your duties on a continuous basis within fourteen (14) days of receiving such demand, (ii) the willful engaging by you in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise or (iii) your conviction of any felony or conviction of a misdemeanor which impairs your ability substantially to perform your duties with the Company. For purposes of this paragraph, no act, or failure to act, on your part shall be deemed "willful" unless done, or omitted to be done, by you not in good faith and without reasonable belief that your action or omission was in the best interest of the Company.
Appears in 1 contract
Samples: Securities Purchase Agreement (Sundial Growers Inc.)
Change of Control Provisions. (a) For purposes of this Letter Agreement, a "Change in Control" of the Company shall mean a change in control of a nature that would be required to be reported by it in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), whether or not the Company is then subject to such reporting requirement; provided, that, without limitation, such a change in control shall be deemed to have occurred if:
(1) Any any person (within the meaning of that term as used in Sections 13(d) and 14(d) of the Exchange Act (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing twenty percent (20%) or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that for purposes of this Agreement the term "Person" shall not include (i) the Company or any of its majority-owned subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company; or
(2) The the following individuals cease for any reason to constitute a majority of the number of directors then serving on the Board of Directors of the Company; : individuals who, on the date hereof, are serving as directors on the Board and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company'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 on the date hereof or whose appointment, election or nomination for election was previously so approved, or
(3) There there is consummated a merger or consolidation of the Company or a subsidiary thereof with any other corporation, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding securities which represent immediately after such merger or consolidation at least 50% of the combined voting power of the voting securities of the entity surviving the merger or consolidation, (or the parent of such surviving entity) or the shareholders of the Company approve a plan of complete liquidation of the Company, or there is consummated the sale or other disposition of all or substantially all of the Company's assets.
(b) If any of the events described above constituting a Change in Control of the Company shall have occurred, you shall be entitled to the benefits provided in Paragraph 7(f) hereof upon the termination of your employment during the term of this Letter Agreement unless such termination is (i) because of your death or disability, (ii) by the Company for Cause, (iii) by you other than for Good Reason, or (iv) on or after the date that you attain age sixty-five (65). In the event your employment with the Company is terminated for any reason prior to the occurrence of a Change in Control, you shall not be entitled to any benefits under this Paragraph 7; provided, however, that if your employment is terminated prior to a Change in Control without Cause at the direction of a person who has entered into an agreement with the Company, the consummation of which will constitute a Change in Control, your employment shall be deemed to have terminated following a Change in Control. Your entitlement to benefits under any of the Company's retirement plans will not adversely affect your rights to receive payments hereunder.
(c) Termination by the Company of your employment for "Cause" shall mean termination upon (i) the willful and continued failure by you to substantially perform your duties with the Company (other than any such failure resulting from termination by you for Good Reason), after a demand for substantial performance is delivered to you that specifically identifies the manner in which the Company believes that you have not substantially performed your duties, and you have failed to resume substantial performance of your duties on a continuous basis within fourteen (14) days of receiving such demand, (ii) the willful engaging by you in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise or (iii) your conviction of any felony or conviction of a misdemeanor which impairs your ability substantially to perform your duties with the Company. For purposes of this paragraph, no act, or failure to act, on your part shall be deemed "willful" unless done, or omitted to be done, by you not in good faith and without reasonable belief that your action or omission was in the best interest of the Company.such
Appears in 1 contract
Samples: Employment Agreement (Rti International Metals Inc)
Change of Control Provisions. (a) Notwithstanding the terms of Section 6(f), if following a Change of Control (as defined below) the employment of the Executive is terminated without Cause or the Executive terminates his employment for Good Reason, then the Executive shall be entitled to (i) receive, and the Company shall pay to the Executive without setoff, counterclaim or other withholding, except as set forth in Section 4(d), an amount (in addition to any salary, benefits or other sums due the Executive through the Termination Date) equal to 5.25 times the Base Salary; and (ii) a continuation of medical and life insurance benefits until the third anniversary of the Termination Date, as if he had remained an active employee. Any amount becoming payable under Section 9(a)(i) shall be paid in immediately available funds within ten business days following the Termination Date.
(b) Notwithstanding the terms of Section 4(b), immediately following a Change of Control, any stock options required to be issued pursuant to Section 4(b) shall be immediately issued, vest and become immediately exercisable.
(c) For the purposes of this Letter Agreement, a "Change in of Control" shall mean the occurrence of any of the following: (i) the sale, lease, transfer, conveyance or other disposition, in one or a series of related transactions, of all or substantially all of the assets of the Company shall mean a change to any "person" or "group" (as such terms are used in control of a nature that would be required to be reported by it in response to Item 6(eSections 13(d)(3) and 14(d)(2) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), whether (ii) any person or not the Company is then subject to such reporting requirement; provided, that, without limitation, such a change in control shall be deemed to have occurred if:
(1) Any person (within the meaning of that term as used in Sections 13(d) and 14(d) of the Exchange Act (a "Person") group is or becomes the "beneficial owner" (as defined in Rule Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be deemed to have "beneficial ownership" of all shares that any such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of securities more than 40% of the Company representing twenty percent (20%) or more of the combined total voting power of the Company's then outstanding voting securities; provided, however, that for purposes of this Agreement the term "Person" shall not include (i) the Company or any of its majority-owned subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan stock of the Company Company, including by way of merger, consolidation or any otherwise (other than affiliates of its subsidiariesApollo Management, L.P., or The Blackstone Group, L.P., acting individually or as a group), or (iii) an underwriter temporarily holding securities pursuant to an offering during any period of two consecutive years, individuals who at the beginning of such securities, period constituted the Board (together with any new directors whose election by such Board or (iv) a corporation owned, directly or indirectly, whose nomination for election by the stockholders of the Company in substantially was approved by a vote of a majority of the same proportions as their ownership of stock directors of the Company; or
(2, then still in office, who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) The following individuals cease for any reason to constitute a majority of the number of directors Board, then serving on the Board of Directors of the Company; individuals who, on the date hereof, are serving as directors on the Board and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company'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 on the date hereof or whose appointment, election or nomination for election was previously so approved, or
(3) There is consummated a merger or consolidation of the Company or a subsidiary thereof with any other corporation, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding securities which represent immediately after such merger or consolidation at least 50% of the combined voting power of the voting securities of the entity surviving the merger or consolidation, (or the parent of such surviving entity) or the shareholders of the Company approve a plan of complete liquidation of the Company, or there is consummated the sale or other disposition of all or substantially all of the Company's assetsoffice.
(b) If any of the events described above constituting a Change in Control of the Company shall have occurred, you shall be entitled to the benefits provided in Paragraph 7(f) hereof upon the termination of your employment during the term of this Letter Agreement unless such termination is (i) because of your death or disability, (ii) by the Company for Cause, (iii) by you other than for Good Reason, or (iv) on or after the date that you attain age sixty-five (65). In the event your employment with the Company is terminated for any reason prior to the occurrence of a Change in Control, you shall not be entitled to any benefits under this Paragraph 7; provided, however, that if your employment is terminated prior to a Change in Control without Cause at the direction of a person who has entered into an agreement with the Company, the consummation of which will constitute a Change in Control, your employment shall be deemed to have terminated following a Change in Control. Your entitlement to benefits under any of the Company's retirement plans will not adversely affect your rights to receive payments hereunder.
(c) Termination by the Company of your employment for "Cause" shall mean termination upon (i) the willful and continued failure by you to substantially perform your duties with the Company (other than any such failure resulting from termination by you for Good Reason), after a demand for substantial performance is delivered to you that specifically identifies the manner in which the Company believes that you have not substantially performed your duties, and you have failed to resume substantial performance of your duties on a continuous basis within fourteen (14) days of receiving such demand, (ii) the willful engaging by you in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise or (iii) your conviction of any felony or conviction of a misdemeanor which impairs your ability substantially to perform your duties with the Company. For purposes of this paragraph, no act, or failure to act, on your part shall be deemed "willful" unless done, or omitted to be done, by you not in good faith and without reasonable belief that your action or omission was in the best interest of the Company.
Appears in 1 contract
Change of Control Provisions. (a) For purposes of this Letter Agreement, a "Change in Control" of the Company shall mean a change in control of a nature that would be required to be reported by it in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), whether or not the Company is then subject to such reporting requirement; provided, that, without limitation, such a change in control shall be deemed to have occurred if:
(1) Any person (within the meaning of that term as used in Sections 13(d) and 14(d) of the Exchange Act (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing twenty percent (20%) or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that for purposes of this Agreement the term "Person" shall not include (i) the Company or any of its majority-owned subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of Mr. Xxxxx X. Xxxxxxx May 20, 1997 Page 4 the Company in substantially the same proportions as their ownership of stock of the Company, (v) USX Corporation; or
(2) The following individuals cease for any reason to constitute a majority of the number of directors then serving on the Board of Directors of the Company; individuals who, on the date hereof, are serving as directors on the Board and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company'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 on the date hereof or whose appointment, election or nomination for election was previously so approved, or
(3) There is consummated a merger or consolidation of the Company or a subsidiary thereof with any other corporation, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding securities which represent immediately after such merger or consolidation at least 50% of the combined voting power of the voting securities of the entity surviving the merger or consolidation, (or the parent of such surviving entity) or the shareholders of the Company approve a plan of complete liquidation of the Company, or there is consummated the sale or other disposition of all or substantially all of the CompanyCorporation's assets.
(b) If any of the events described above constituting a Change in Control of the Company shall have occurred, you shall be entitled to the benefits provided in Paragraph 7(f) hereof upon the termination of your employment during the term of this Letter Agreement unless such termination is (i) because of your death or disability, (ii) by the Company for Cause, (iii) by you other than for Good Reason, or (iv) on or after the date that you attain age sixty-five (65). In the event your employment with the Company is terminated for any reason prior to the occurrence of a Change in Control, you shall not be entitled to any benefits under this Paragraph 7; provided, however, that if your employment is terminated prior to a Change in Control without Cause at the direction of a person who has entered into an agreement with the Company, the consummation of which will constitute a Change in Control, your employment shall be deemed to have terminated following a Change in Control. Your entitlement to benefits under any of the Company's retirement plans will not adversely affect your rights to receive payments hereunder.
(c) Termination by the Company of your employment for "Cause" shall mean termination upon (i) the willful and continued failure by you to substantially perform your duties with the Company (other than any such failure resulting from termination by you for Good Reason), after a demand for substantial performance is delivered to you that specifically identifies the manner in which the Company believes that you have not substantially performed your duties, and you have failed to resume substantial performance of your duties on a continuous basis within fourteen (14) days of receiving such demand, (ii) the willful engaging by you in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise or (iii) your conviction of any felony or conviction of a misdemeanor which impairs your ability substantially to perform your duties with the Company. For purposes of this paragraph, no act, or failure to act, on your part shall be deemed "willful" unless done, or omitted to be done, by you not in good faith and without reasonable belief that your action or omission was in the best interest of the Company.
Appears in 1 contract
Change of Control Provisions. (a) For purposes of this Letter Agreement, a "“Change in Control" ” of the Company shall mean a change in control of a nature that would be required to be reported by it in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”), whether or not the Company is then subject to such reporting requirement; provided, that, without limitation, such a change in control shall be deemed to have occurred if:
(1) Any person (within the meaning of that term as used in Sections 13(d) and 14(d) of the Exchange Act (a "“Person"”) is or becomes the "“beneficial owner" ” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing twenty percent (20%) or more of the combined voting power of the Company's ’s then outstanding voting securities; provided, however, that for purposes of this Agreement the term "“Person" ” shall not include (i) the Company or any of its majority-owned subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company; , or
(2) The following individuals cease for any reason to constitute a majority of the number of directors then serving on the Board of Directors of the Company; individuals who, on the date hereof, are serving as directors on the Board and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election of directors of the Company) whose appointment or 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 on the date hereof or whose appointment, election or nomination for election was previously so approved, or
(3) There is consummated a merger or consolidation of the Company or a subsidiary thereof with any other corporation, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding securities which represent immediately after such merger or consolidation at least 50% of the combined voting power of the voting securities of the entity surviving the merger or consolidation, (or the parent of such surviving entity) or the shareholders of the Company approve a plan of complete liquidation of the Company, or there is consummated the sale or other disposition of all or substantially all of the Company's Corporation’s assets.
(b) If any of the events described above constituting a Change in Control of the Company shall have occurred, you shall be entitled to the benefits provided in Paragraph 7(f) hereof upon the termination of your employment during the term of this Letter Agreement unless such termination is (i) because of your death or disability, (ii) by the Company for Cause, (iii) by you other than for Good Reason, or (iv) on or after the date that you attain age sixty-five (65). In the event your employment with the Company is terminated for any reason prior to the occurrence of a Change in Control, you shall not be entitled to any benefits under this Paragraph 7; provided, however, that if your employment is terminated prior to a Change in Control without Cause at the direction of a person who has entered into an agreement with the Company, the consummation of which will constitute a Change in Control, your employment shall be deemed to have terminated following a Change in Control. Your entitlement to benefits under any of the Company's ’s retirement plans will not adversely affect your rights to receive payments hereunder.
(c) Termination by the Company of your employment for "“Cause" ” shall mean termination upon (i) the willful and continued failure by you to substantially perform your duties with the Company (other than any such failure resulting from termination by you for Good Reason), after a demand for substantial performance is delivered to you that specifically identifies the manner in which the Company believes that you have not substantially performed your duties, and you have failed to resume substantial performance of your duties on a continuous basis within fourteen (14) days of receiving such demand, (ii) the willful engaging by you in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise or (iii) your conviction of any felony or conviction of a misdemeanor which impairs your ability substantially to perform your duties with the Company. For purposes of this paragraph, no act, or failure to act, on your part shall be deemed "“willful" ” unless done, or omitted to be done, by you not in good faith and without reasonable belief that your action or omission was in the best interest of the Company.
Appears in 1 contract
Samples: Employment Agreement (Rti International Metals Inc)
Change of Control Provisions. (a) For purposes The Transaction will constitute a “Change of this Letter Agreement, a "Change in Control" ” within the meaning of the Statement of Resolution. In connection with such Change of Control, Purchaser shall cause the Company shall mean a change in control to make the “Change of a nature that would be Control Offer” required to be reported by it in response to Item 6(eparagraph (g)(i) of Schedule 14A the Statement of Regulation 14A promulgated under Resolution; provided, however, that, in the Securities Exchange Act event that on the Closing Date, Purchaser causes the Company to issue a notice of 1934redemption with respect to an available option to redeem the Series D Preferred Stock pursuant to paragraph (e)(i)(A) or (e)(i)(C) of the Statement of Resolution, then Purchaser shall not be requested to initiate such a “Change of Control Offer”.
(b) The Transaction will constitute a “Change of Control” within the meaning of the Company’s indenture with The Bank of New York dated as amended of April 7, 2000 (as amended, the “Indenture”) relating to the Company’s 10.25% Senior Subordinated Notes due 2010, Series B (the "Exchange Act"“10.25% Notes”). In connection with such Change of Control, whether or not Purchaser shall cause the Company is then subject to such reporting requirementmake the “Change of Control Offer” required by section 4.16 of the Indenture; provided, that, without limitationin the event that on the Closing Date, such Purchaser causes the Company to issue a change in control shall be deemed notice of redemption with respect to have occurred if:
(1) Any person (within an available option to redeem the meaning of that term as used in Sections 13(d) and 14(d10.25% Notes pursuant to paragraph 6(a) of the Exchange Act (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act)such notes, directly or indirectly, of securities of the Company representing twenty percent (20%) or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that for purposes of this Agreement the term "Person" shall not include (i) the Company or any of its majority-owned subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company; or
(2) The following individuals cease for any reason to constitute a majority of the number of directors then serving on the Board of Directors of the Company; individuals who, on the date hereof, are serving as directors on the Board and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company'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 on the date hereof or whose appointment, election or nomination for election was previously so approved, or
(3) There is consummated a merger or consolidation of the Company or a subsidiary thereof with any other corporation, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding securities which represent immediately after such merger or consolidation at least 50% of the combined voting power of the voting securities of the entity surviving the merger or consolidation, (or the parent of such surviving entity) or the shareholders of the Company approve a plan of complete liquidation of the Company, or there is consummated the sale or other disposition of all or substantially all of the Company's assets.
(b) If any of the events described above constituting a Change in Control of the Company shall have occurred, you shall be entitled to the benefits provided in Paragraph 7(f) hereof upon the termination of your employment during the term of this Letter Agreement unless such termination is (i) because of your death or disability, (ii) by the Company for Cause, (iii) by you other than for Good Reason, or (iv) on or after the date that you attain age sixty-five (65). In the event your employment with the Company is terminated for any reason prior to the occurrence of a Change in Control, you Purchaser shall not be entitled required to any benefits under this Paragraph 7; provided, however, that if your employment is terminated prior to initiate such a “Change in of Control without Cause at the direction of a person who has entered into an agreement with the Company, the consummation of which will constitute a Change in Control, your employment shall be deemed to have terminated following a Change in Control. Your entitlement to benefits under any of the Company's retirement plans will not adversely affect your rights to receive payments hereunderOffer.”
(c) Termination by The Transaction will constitute an “Event of Default” under Section 7(k) of the Company Credit Agreement. In connection with the consummation of your employment for "Cause" shall mean termination upon the Transaction, Purchaser will make appropriate arrangements so that, simultaneously with such consummation, (i) all amounts outstanding under the willful and continued failure by you to substantially perform your duties with the Company (other than any such failure resulting from termination by you for Good Reason), after a demand for substantial performance is delivered to you that specifically identifies the manner Credit Agreement shall have been paid in which the Company believes that you have not substantially performed your duties, and you have failed to resume substantial performance of your duties on a continuous basis within fourteen (14) days of receiving such demand, full or (ii) there will not be an Event of Default under the willful engaging by you Credit Agreement in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise or (iii) your conviction of any felony or conviction of a misdemeanor which impairs your ability substantially to perform your duties with the Company. For purposes of this paragraph, no act, or failure to act, on your part shall be deemed "willful" unless done, or omitted to be done, by you not in good faith and without reasonable belief that your action or omission was in the best interest consequence of the CompanyTransaction.
Appears in 1 contract
Change of Control Provisions. (a) For purposes of this Letter Agreement, a "Change in Control" of the Company shall mean a change in control of a nature that would be required to be reported by it in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), whether or not the Company is then subject to such reporting requirement; provided, that, without limitation, such a change in control shall be deemed to have occurred if:
(1) Any person (within the meaning of that term as used in Sections 13(d) and 14(d) of the Exchange Act (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing twenty percent (20%) or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that for purposes of this Agreement the term "Person" shall not include (i) the Company or any of its majority-owned subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company; or
(2) The following individuals cease for any reason to constitute a majority of the number of directors then serving on the Board of Directors of the Company; individuals who, on the date hereof, are serving as directors on the Board and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company'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 on the date hereof or whose appointment, election or nomination for election was previously so approved, or
(3) There is consummated a merger or consolidation of the Company or a subsidiary thereof with any other corporation, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding securities which represent immediately after such merger or consolidation at least 50% of the combined voting power of the voting securities of the entity surviving the merger or consolidation, (or the parent of such surviving entity) or the shareholders of the Company approve a plan of complete liquidation of the Company, or there is consummated the sale or other disposition of all or substantially all of the Company's assets.
(b) If any of the events described above constituting a Change in Control of the Company shall have occurred, you shall be entitled to the benefits provided in Paragraph 7(f) hereof upon the termination of your employment during the term of this Letter Agreement unless such termination is (i) because of your death or disability, (ii) by the Company for Cause, (iii) by you other than for Good Reason, or (iv) on or after the date that you attain age sixty-five (65). In the event your employment with the Company is terminated for any reason prior to the occurrence of a Change in Control, you shall not be entitled to any benefits under this Paragraph 7; provided, however, that if your employment is terminated prior to a Change in Control without Cause at the direction of a person who has entered into an agreement with the Company, the consummation of which will constitute a Change in Control, your employment shall be deemed to have terminated following a Change in Control. Your entitlement to benefits under any of the Company's retirement plans will not adversely affect your rights to receive payments hereunder.
(c) Termination by the Company of your employment for "Cause" shall mean termination upon (i) the willful and continued failure by you to substantially perform your duties with the Company (other than any such failure resulting from termination by you for Good Reason), after a demand for substantial performance is delivered to you that specifically identifies the manner in which the Company believes that you have not substantially performed your duties, and you have failed to resume substantial performance of your duties on a continuous basis within fourteen (14) days of receiving such demand, (ii) the willful engaging by you in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise or (iii) your conviction of any felony or conviction of a misdemeanor which impairs your ability substantially to perform your duties with the Company. For purposes of this paragraph, no act, or failure to act, on your part shall be deemed "willful" unless done, or omitted to be done, by you not in good faith and without reasonable belief that your action or omission was in the best interest of the Company.securities
Appears in 1 contract
Samples: Employment Agreement (Rti International Metals Inc)
Change of Control Provisions. (a) For purposes of this Letter Agreement, a "Change in Control" of the Company shall mean a change in control of a nature that would be required to be reported by it in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), whether or not the Company is then subject to such reporting requirement; provided, that, without limitation, such a change in control shall be deemed to have occurred if:
(1) Any any person (within the meaning of that term as used in Sections 13(d) and 14(d) of the Exchange Act (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing twenty percent (20%) or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that for purposes of this Agreement the term "Person" shall not include (i) the Company or any of its majority-owned subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company; or
(2) The the following individuals cease for any reason to constitute a majority of the number of directors then serving on the Board of Directors of the Company; : individuals who, on the date hereof, are serving as directors on the Board and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company'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 on the date hereof or whose appointment, election or nomination for election was previously so approved, or
(3) There there is consummated a merger or consolidation of the Company or a subsidiary thereof with any other corporation, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding securities which represent immediately after such merger or consolidation at least 50% of the combined voting power of the voting securities of the entity surviving the merger or consolidation, (or the parent of such surviving entity) or the shareholders of the Company approve a plan of complete 5 [LOGO] RTI INTERNATIONAL METALS, INC. liquidation of the Company, or there is consummated the sale or other disposition of all or substantially all of the Company's assets.
(b) In the event of a Change in Control of the Company, you may, at your sole option, terminate your employment with the Company within the initial 90 calendar days from the occurrence of such Change in Control (a "Sole Option" termination). If your employment is involuntarily terminated by the Company other than for Cause within such initial 90 calendar day period, if you elect a Sole Option termination, or if, after the first 90 calendar days following a Change in Control you terminate for Good Reason, you shall not be required to remain in the Company's employ, and the benefits set forth in paragraph 8(g) shall be applicable.
(c) If any of the events described above constituting a Change in Control of the Company shall have occurred, you shall be entitled to the benefits provided in Paragraph 7(fparagraph 8(g) hereof upon the termination of your employment during the term of this Letter Agreement unless such termination is (i) because of your death or disability, (ii) by the Company for Cause, (iii) by you other than for Good ReasonReason after the first 90 calendar days after a Change in Control has occurred, or (iv) on or after the date that you attain age sixty-five (65). In the event your employment with the Company is terminated for any reason prior to the occurrence of a Change in Control, you shall not be entitled to any benefits under this Paragraph 7paragraph 8; provided, however, that if your employment is terminated prior to a Change in Control without Cause at the direction of a person who has entered into an agreement with the Company, the consummation of which will constitute a Change in Control, your employment shall be deemed to have terminated following a Change in Control. Your entitlement to benefits under any of the Company's retirement plans will not adversely affect your rights to receive payments hereunder.
(cd) Termination by the Company of your employment for "Cause" shall mean termination upon (i) the willful and continued failure by you to substantially perform your duties with the Company (other than any such failure resulting from a Sole Option termination by you within the first 90 calendar days after a Change in Control has occurred or thereafter for Good Reason), after a demand for substantial performance is delivered to you that specifically identifies the manner in which the Company believes that you have not substantially performed your duties, and you have failed to resume substantial performance of your duties on a continuous basis within fourteen (14) days of receiving such demand, (ii) the willful engaging by you in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise or (iii) your conviction of any felony or conviction of a misdemeanor which impairs your ability substantially to perform your duties with the Company. For purposes of this paragraph, no act, or failure 6 [LOGO] RTI INTERNATIONAL METALS, INC. to act, on your part shall be deemed "willful" unless done, or omitted to be done, by you not in good faith and without reasonable belief that your action or omission was in the best interest of the Company.
Appears in 1 contract
Samples: Employment Agreement (Rti International Metals Inc)
Change of Control Provisions. Notwithstanding the foregoing and the provisions of Section 4(b) above, at the request of the Holder delivered at any time commencing on the earliest to occur of (aA) For purposes the public disclosure of any Change of Control, (B) the consummation of any Change of Control and (C) the Holder first becoming aware of any Change of Control through the date that is ninety (90) days after the public disclosure of the consummation of such Change of Control by the Company pursuant to a Report of Foreign Private Issuer on Form 6-K filed with the SEC, the Company or the Successor Entity (as the case may be) shall exchange this Warrant for consideration equal to the Black Scholes Value of such portion of this Letter AgreementWarrant subject to exchange (collectively, the “Aggregate Black Scholes Value”) in the form of, at the Company’s election (such election to pay in cash or by delivery of the Rights (as defined below), a "“Consideration Election”), either (I) rights (with a beneficial ownership limitation in the form of Section 1(f) hereof, mutatis mutandis) (collectively, the “Rights”), convertible in whole, or in part, at any time, without the requirement to pay any additional consideration, at the option of the Holder, into such Corporate Event Consideration applicable to such Change of Control equal in Control" value to the Aggregate Black Scholes Value (as determined in accordance with Section 2(b)(iv) above, but with the aggregate number of Successor Shares (as defined below) issuable upon conversion of the Rights to be determined in increments of 10% (or such greater percentage as the Holder may notify the Company from time to time) of the portion of the Aggregate Black Scholes Value attributable to such Successor Shares (the “Successor Share Value Increment”), with the aggregate number of Successor Shares issuable upon exercise of the Rights with respect to the first Successor Share Value Increment determined based on 70% of the Closing Bid Price of the Successor Shares on the date the Rights are issued and on each of the nine (9) subsequent Trading Days, in each case, the aggregate number of additional Successor Shares issuable upon exercise of the Rights shall be determined based upon a Successor Share Value Increment at 70% of the Closing Bid Price of the Successor Shares in effect for such corresponding Trading Day (such ten (10) Trading Day period commencing on, and including, the date the Rights are issued, the “Rights Measuring Period”)), or (II) in cash; provided, that the Company shall mean not consummate a change in control Change of a nature that would be required to be reported by it in response to Item 6(eControl if the Corporate Event Consideration includes share capital or other equity interest (including Common Shares) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), whether “Successor Shares”) either in an entity that is not listed on an Eligible Market or not an entity in which the Company is then subject to such reporting requirement; provided, that, without limitation, such a change in control shall be deemed to have occurred if:
(1) Any person (within daily share volume for the meaning of that term as used in Sections 13(d) and 14(d) applicable Successor Shares for each of the Exchange Act twenty (a "Person"20) Trading Days prior to the date of consummation of such Change of Control is or becomes less than the "beneficial owner" (as defined aggregate number of Successor Shares issuable to the Holder upon conversion in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities full of the Company representing twenty percent applicable Rights (20%) or more without regard to any limitations on conversion therein, assuming the exercise in full of the combined voting power of the Company's then outstanding voting securities; provided, however, that for purposes of this Agreement the term "Person" shall not include (i) the Company or any of its majority-owned subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company; or
(2) The following individuals cease for any reason to constitute a majority of the number of directors then serving on the Board of Directors of the Company; individuals who, Rights on the date hereof, are serving as directors of issuance of the Rights and assuming the Closing Bid Price of the Successor Shares for each Trading Day in the Rights Measuring Period is the Closing Bid Price on the Board and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating Trading Day ended immediately prior to the election time of directors consummation of the CompanyChange of Control). The Company shall give the Holder written notice of each Consideration Election at least twenty (20) whose appointment Trading Days prior to the time of consummation of such Change of Control. Payment of such amounts or election delivery of the Rights, as applicable, shall be made by the Board Company (or nomination for election by at the Company's stockholders was approved by a vote of at least two-thirds (2/3’s direction) of to the directors then still in office who either were directors Holder on the later of (x) the second (2nd) Trading Day after the date hereof or whose appointmentof such request and (y) the date of consummation of such Change of Control (or, election or nomination for election was previously so approvedwith respect to any Right, or
(3if applicable, such later time that holders of Common Shares are initially entitled to receive Corporate Event Consideration with respect to the Common Shares of such holder). Any Corporate Event Consideration included in the Right, if any, pursuant to this Section 4(c) There is consummated a merger or consolidation pari passu with the Corporate Event Consideration to be paid to holders of Common Shares and the Company or shall not permit a subsidiary thereof with payment of any other corporation, other than a merger or consolidation which would result in Corporate Event Consideration to the holders of Common Shares without on or prior to such time delivering the voting securities Right to the Holder hereunder. The Company shall not consummate any Change of Control unless, upon consummation of such Change of Control, the Company outstanding immediately prior thereto holding securities which represent immediately after such merger or consolidation at least 50% of the combined voting power of the voting securities of the entity surviving the merger or consolidationhas either (x) paid off, (or the parent of such surviving entity) or the shareholders of the Company approve a plan of complete liquidation of the Companyin full, or there is consummated the sale or other disposition of all or substantially all of the Company's assets.
First Lien Indebtedness or (by) If any obtained the written consent of the events described above constituting a Change in Control holders of the Company shall have occurred, you shall be entitled all First Lien Indebtedness that will remain outstanding thereafter to the benefits provided in Paragraph 7(f) hereof upon the termination of your employment during the term of this Letter Agreement unless such termination is (i) because of your death or disability, (ii) by the Company for Cause, (iii) by you other than for Good Reason, or (iv) on or after the date that you attain age sixty-five (65). In the event your employment with the Company is terminated for any reason prior payments to the occurrence of a Change Holder set forth in Control, you shall not be entitled Section 4(c) below without regard to any benefits under this Paragraph 7; provided, however, that if your employment is terminated prior subordination thereof to a Change in Control without Cause at the direction of a person who has entered into an agreement with the Company, the consummation of which will constitute a Change in Control, your employment shall be deemed to have terminated following a Change in Control. Your entitlement to benefits under such First Lien Indebtedness or any of the Company's retirement plans will not adversely affect your rights to receive payments hereunder.
(c) Termination by the Company of your employment for "Cause" shall mean termination upon (i) the willful and continued failure by you to substantially perform your duties with the Company (other than any such failure resulting from termination by you for Good Reason), after a demand for substantial performance is delivered to you that specifically identifies the manner in which the Company believes that you have not substantially performed your duties, and you have failed to resume substantial performance of your duties on a continuous basis within fourteen (14) days of receiving such demand, (ii) the willful engaging by you in conduct which is demonstrably and materially injurious to the Company, monetarily term or otherwise or (iii) your conviction of any felony or conviction of a misdemeanor which impairs your ability substantially to perform your duties with the Company. For purposes of this paragraph, no act, or failure to act, on your part shall be deemed "willful" unless done, or omitted to be done, by you not in good faith and without reasonable belief that your action or omission was condition in the best interest of the CompanyIntercreditor Agreements.
Appears in 1 contract
Samples: Securities Restructuring Agreement (Sundial Growers Inc.)
Change of Control Provisions. (a) For purposes of this Letter Agreement, The Transaction will constitute a "Change in of Control" within the meaning of the Statement of Resolution. In connection with such Change of Control, Purchaser shall cause the Company shall mean a change in control to make the "Change of a nature that would be Control Offer" required to be reported by it in response to Item 6(eparagraph (g)(i) of Schedule 14A the Statement of Regulation 14A promulgated under Resolution; provided, however, that, in the Securities Exchange Act event that on the Closing Date, Purchaser causes the Company to issue a notice of 1934redemption with respect to an available option to redeem the Series D Preferred Stock pursuant to paragraph (e)(i)(A) or (e)(i)(C) of the Statement of Resolution, then Purchaser shall not be requested to initiate such a "Change of Control Offer".
(b) The Transaction will constitute a "Change of Control" within the meaning of the Company's indenture with The Bank of New York dated as amended of April 7, 2000 (as amended, the "Indenture") relating to the Company's 10.25% Senior Subordinated Notes due 2010, Series B (the "Exchange Act10.25% Notes"). In connection with such Change of Control, whether or not Purchaser shall cause the Company is then subject to such reporting requirementmake the "Change of Control Offer" required by section 4.16 of the Indenture; provided, that, without limitationin the event that on the Closing Date, such Purchaser causes the Company to issue a change in control shall be deemed notice of redemption with respect to have occurred if:
(1) Any person (within an available option to redeem the meaning of that term as used in Sections 13(d) and 14(d10.25% Notes pursuant to paragraph 6(a) of the Exchange Act (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act)such notes, directly or indirectly, of securities of the Company representing twenty percent (20%) or more of the combined voting power of the Company's then outstanding voting securities; provided, however, that for purposes of this Agreement the term "Person" shall not include (i) the Company or any of its majority-owned subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company; or
(2) The following individuals cease for any reason to constitute a majority of the number of directors then serving on the Board of Directors of the Company; individuals who, on the date hereof, are serving as directors on the Board and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company'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 on the date hereof or whose appointment, election or nomination for election was previously so approved, or
(3) There is consummated a merger or consolidation of the Company or a subsidiary thereof with any other corporation, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding securities which represent immediately after such merger or consolidation at least 50% of the combined voting power of the voting securities of the entity surviving the merger or consolidation, (or the parent of such surviving entity) or the shareholders of the Company approve a plan of complete liquidation of the Company, or there is consummated the sale or other disposition of all or substantially all of the Company's assets.
(b) If any of the events described above constituting a Change in Control of the Company shall have occurred, you shall be entitled to the benefits provided in Paragraph 7(f) hereof upon the termination of your employment during the term of this Letter Agreement unless such termination is (i) because of your death or disability, (ii) by the Company for Cause, (iii) by you other than for Good Reason, or (iv) on or after the date that you attain age sixty-five (65). In the event your employment with the Company is terminated for any reason prior to the occurrence of a Change in Control, you Purchaser shall not be entitled required to any benefits under this Paragraph 7; provided, however, that if your employment is terminated prior to initiate such a "Change in of Control without Cause at the direction of a person who has entered into an agreement with the Company, the consummation of which will constitute a Change in Control, your employment shall be deemed to have terminated following a Change in Control. Your entitlement to benefits under any of the Company's retirement plans will not adversely affect your rights to receive payments hereunderOffer."
(c) Termination by The Transaction will constitute an "Event of Default" under Section 7(k) of the Company Credit Agreement. In connection with the consummation of your employment for "Cause" shall mean termination upon the Transaction, Purchaser will make appropriate arrangements so that, simultaneously with such consummation, (i) all amounts outstanding under the willful and continued failure by you to substantially perform your duties with the Company (other than any such failure resulting from termination by you for Good Reason), after a demand for substantial performance is delivered to you that specifically identifies the manner Credit Agreement shall have been paid in which the Company believes that you have not substantially performed your duties, and you have failed to resume substantial performance of your duties on a continuous basis within fourteen (14) days of receiving such demand, full or (ii) there will not be an Event of Default under the willful engaging by you Credit Agreement in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise or (iii) your conviction of any felony or conviction of a misdemeanor which impairs your ability substantially to perform your duties with the Company. For purposes of this paragraph, no act, or failure to act, on your part shall be deemed "willful" unless done, or omitted to be done, by you not in good faith and without reasonable belief that your action or omission was in the best interest consequence of the CompanyTransaction.
Appears in 1 contract
