Change of Control Severance. The provisions of this Paragraph 9 shall apply in lieu of, and expressly supersede, the provisions of Paragraph 7 regarding severance pay and benefits upon a termination of employment, if such termination of employment occurs within eighteen months after the occurrence of a Change of Control (as defined below). Upon a Post-Change of Control Termination, and provided you (I) enter into, do not revoke, and comply with the Release and (II) you comply with the Twelve-Month Restrictive Covenant (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary of the Date of Termination), WTAM will pay, in the manner set forth below, as severance to you (or in the case of your subsequent death, the legal representative of your estate or such other person or persons as you shall have designated by written notice to WTAM): (i) the sum of (A) 1.75 times the Annual Base Salary; (B) an amount determined by multiplying the Average Cash Incentive Compensation by the fraction obtained by dividing the number of days employed by the Company during the Termination Year by 365, and (C) 1.75 times the Average Cash Incentive Compensation. The amounts in this Paragraph 9(i) shall be paid in a lump sum on the first payroll date following the 30th day after the Date of Termination if permissible under Section 409A of the Code without being subject to additional tax, penalty or surcharge under Section 409A of the Code (it being understood that if a lump sum payment is not permissible thereunder, the amounts under this Paragraph 9(i) shall be paid in the same schedule as set forth in Paragraph 7 above); (ii) you shall be entitled to accelerated vesting of any unvested portion of any time-based equity award that would have vested in the twenty-one-month period following the Date of Termination as if no termination had occurred; and (iii) If you elect COBRA insurance coverage, WTAM directly will pay to you COBRA Premiums for twenty-one months following the Date of Termination, provided that WTAM’s payment obligation shall cease upon the expiration of your rights under COBRA or if you became reemployed and eligible for group health benefits. Furthermore, the Company agrees to maintain, for a period of at least six years after your termination, directors’ and officers’ liability insurance insuring you (in your capacity as an officer and/or director) and other officers and directors, with a limit of liability not less than the aggregate of the respective amounts set forth in the policy or policies maintained by the Company immediately prior to the Change of Control. Notwithstanding the foregoing, if you breach any of the provisions contained in Paragraph 4, all payments under this Paragraph 9 shall immediately cease, but you shall be entitled to retain any payments made to you prior to any breach by you of the provisions of Paragraph 4. However, if you shall breach the provisions of Paragraph 4(c), the Company shall be entitled to recover from you a pro-rata portion of the payments made to you under this Paragraph 9 that corresponds to the proportionate period of time that you were in breach of Paragraph 4(c). If you initiate or otherwise participate in any arbitration proceeding against the Company to enforce the rights and entitlements granted to you pursuant to this Paragraph 9 and you substantially prevail in such a proceeding, you shall be entitled to recover from the Company all of your costs of enforcement, including reasonable attorney’s fees and expenses.
Appears in 3 contracts
Samples: Employment Agreement (WisdomTree Investments, Inc.), Employment Agreement (WisdomTree Investments, Inc.), Employment Agreement (WisdomTree Investments, Inc.)
Change of Control Severance. The provisions of this Paragraph 9 shall apply in lieu of, and expressly supersede, the provisions of Paragraph 7 regarding severance pay and benefits upon a termination of employment, if such termination of employment occurs If within eighteen twelve (12) months after the occurrence of a Change of Control (as defined below). Upon a Post-Change of Control Terminationthe Company, and provided you (I) enter into, do not revoke, and comply the Company terminates Executive’s employment with the Release and (II) you comply Company for reasons other than Cause, death, or Disability or Executive resigns from his employment with the Twelve-Month Restrictive Covenant (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary of the Date of Termination)Company, WTAM Executive will pay, in the manner set forth below, as severance to you (or in the case of your subsequent death, the legal representative of your estate or such other person or persons as you shall have designated by written notice to WTAM):
(i) the sum of (A) 1.75 times the Annual Base Salary; (B) an amount determined by multiplying the Average Cash Incentive Compensation by the fraction obtained by dividing the number of days employed by the Company during the Termination Year by 365, and (C) 1.75 times the Average Cash Incentive Compensation. The amounts in this Paragraph 9(i) shall be paid in a lump sum on the first payroll date following the 30th day after the Date of Termination if permissible under Section 409A of the Code without being subject to additional tax, penalty or surcharge under Section 409A of the Code (it being understood that if a lump sum payment is not permissible thereunder, the amounts under this Paragraph 9(i) shall be paid in the same schedule as set forth in Paragraph 7 above);
(ii) you shall be entitled to accelerated vesting receive:
5.3.1 Continuing payments of any unvested portion severance pay (less applicable tax withholding) at the Company Salary rate multiplied by the percentage of any time-based equity award Executive’s total business days that would have vested were worked outside of the United States in the twenty-one-month period following the Date of Termination most recently completed fiscal year, as if no termination had occurred; and
(iii) If you elect COBRA insurance coverage, WTAM directly will pay to you COBRA Premiums for twenty-one months following the Date of Termination, provided that WTAM’s payment obligation shall cease upon the expiration of your rights under COBRA or if you became reemployed and eligible for group health benefits. Furthermore, the Company agrees to maintainthen in effect, for a period of at least six years after your terminationtwelve (12) months from the Termination Date, directors’ and officers’ liability insurance insuring you (payable in your capacity accordance with the Company’s normal payroll policies;
5.3.2 Vesting as an officer and/or director) and other officers and directors, with a limit of liability not less than the aggregate of the respective amounts set forth Termination Date of all unvested options granted to Executive, in the policy or policies maintained by event that the Company immediately prior terminates Executive's employment under the circumstances described in Section 5.3 or in the event that Executive resigns from his employment with the Company due to the a Constructive Termination within 12 months of a Change of Control. Notwithstanding the foregoing, if you breach any ; or vesting as of the provisions contained in Paragraph 4, all payments under this Paragraph 9 shall immediately cease, but you shall be entitled to retain any payments made to you prior to any breach by you Termination Date of fifty percent (50%) of the provisions unvested options granted to Executive, in the event that Executive resigns from his employment as described in Section 5.3;
5.3.3 Extension of Paragraph 4the exercise period enabling Executive to exercise his options through the first anniversary of the Termination Date; notwithstanding, in no case shall the exercise period be extended beyond the maximum term of the options. However, if you shall breach the provisions of Paragraph 4(c)Additionally, the Company shall be entitled to recover from you a pro-rata portion exercise period of the payments made options may not be extended beyond the later to you occur of (x) the fifteenth day of the third month after the options would have otherwise expired due to termination of Executive's employment, or (y) the end of the calendar year during which the options would have otherwise expired due to termination of Executive's employment; and
5.3.4 Company-paid continuation for Executive and his eligible dependents under this Paragraph 9 that corresponds to the proportionate period Company’s group medical, dental and vision plans as in effect for Executive on the day immediately preceding the Termination Date until the earlier of time that you were in breach of Paragraph 4(c). If you initiate twelve (12) months following the Termination Date or otherwise participate in any arbitration proceeding against the Company to enforce the rights date Executive becomes eligible for substantially similar coverage under another employer’s group medical, dental, and entitlements granted to you pursuant to this Paragraph 9 and you substantially prevail in such a proceeding, you shall be entitled to recover from the Company all of your costs of enforcement, including reasonable attorney’s fees and expensesvision plans.
Appears in 2 contracts
Samples: Employment Agreement (Wintegra Inc), Employment Agreement (Wintegra Inc)
Change of Control Severance. The provisions In addition to the rights of the Employee under the Company's employee benefit plans (paragraphs C of Section 3 above) but in lieu of any severance payment under paragraph F of this Paragraph 9 Section 4 above, if there is a Change in Control of the Company (as defined below) and the employment of the Employee is concurrently or subsequently terminated (a) by the Company without cause, (b) by the expiration of the Term of this Employment Agreement, or (c) by the resignation of the Employee because he has reasonably determined in good faith that his titles, authorities, responsibilities, salary, bonus opportunities or benefits have been materially diminished, that a material adverse change in his working conditions has occurred, that his services are no longer required in light of the Company's business plan, or the Company has breached this Employment Agreement, the Company shall apply in lieu ofpay the Employee, as a severance payment, at the time of such termination, the amount of Six Hundred Fifty Thousand Dollars ($650,000) together with the value of any accrued but unused vacation time, and expressly supersedethe amount of all accrued but previously unpaid base salary through the date of termination and shall provide him with all of this benefits under paragraph C of Section 3 above for the longer of six (6) months or the full unexpired Term of this Employment Agreement. If any such termination occurs at or after the substantial completion of the liquidation of the assets of the Company, the provisions severance payment shall be increased by adding Eighty-One Thousand Two Hundred Fifty Dollars ($81,250) to such amount. The Company shall promptly reimburse the Employee for the amount of Paragraph 7 regarding severance pay and benefits upon a termination of employment, if any expenses incurred prior to such termination by the Employee as required under paragraph F of employment occurs Section 3 above. For the purpose of this Employment Agreement, a Change in Control of the Company has occurred when: (a) any person (defined for the purposes of this paragraph G to mean any person within eighteen months after the occurrence meaning of Section 13 (d) of the Securities Exchange Act of 1934 (the "Exchange Act")), other than Neoprobe or an employee benefit plan created by its Board of Directors for the benefit of its employees, either directly or indirectly, acquires beneficial ownership (determined under Rule 13d-3 of the Regulations promulgated by the Securities and Exchange Commission under Section 13(d) of the Exchange Act) of securities issued by Neoprobe having fifteen percent (15%) or more of the voting power of all the voting securities issued by Neoprobe in the election of Directors at the next meeting of the holders of voting securities to be held for such purpose; (b) a majority of the Directors elected at any meeting of the holders of voting securities of Neoprobe are persons who were not nominated for such election by the Board of Directors or a duly constituted committee of the Board of Directors having authority in such matters; (c) the stockholders of Neoprobe approve a merger or consolidation of Neoprobe with another person other than a merger or consolidation in which the holders of Neoprobe's voting securities issued and outstanding immediately before such merger or consolidation continue to hold voting securities in the surviving or resulting corporation (in the same relative proportions to each other as existed before such event) comprising eighty percent (80%) or more of the voting power for all purposes of the surviving or resulting corporation; or (d) the stockholders of Neoprobe approve a transfer of substantially all of the assets of Neoprobe to another person other than a transfer to a transferee, eighty percent (80%) or more of the voting power of which is owned or controlled by Neoprobe or by the holders of Neoprobe's voting securities issued and outstanding immediately before such transfer in the same relative proportions to each other as existed before such event. The parties hereto agree that for the purpose of determining the time when a Change of Control (as defined below). Upon has occurred that if any transaction results from a Post-Change of Control Termination, and provided you (I) enter into, do not revoke, and comply with definite proposal that was made before the Release and (II) you comply with the Twelve-Month Restrictive Covenant (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary end of the Date Term of Termination)this Employment Agreement but which continued until after the end of the Term of this Employment Agreement and such transaction is consummated after the end of the Term of this Employment Agreement, WTAM will pay, in the manner set forth below, as severance to you (or in the case of your subsequent death, the legal representative of your estate or such other person or persons as you shall have designated by written notice to WTAM):
(i) the sum of (A) 1.75 times the Annual Base Salary; (B) an amount determined by multiplying the Average Cash Incentive Compensation by the fraction obtained by dividing the number of days employed by the Company during the Termination Year by 365, and (C) 1.75 times the Average Cash Incentive Compensation. The amounts in this Paragraph 9(i) transaction shall be paid in a lump sum on deemed to have occurred when the definite proposal was made for the purposes of the first payroll date following the 30th day after the Date sentence of Termination if permissible under this paragraph G of this Section 409A of the Code without being subject to additional tax, penalty or surcharge under Section 409A of the Code (it being understood that if a lump sum payment is not permissible thereunder, the amounts under this Paragraph 9(i) shall be paid in the same schedule as set forth in Paragraph 7 above);
(ii) you shall be entitled to accelerated vesting of any unvested portion of any time-based equity award that would have vested in the twenty-one-month period following the Date of Termination as if no termination had occurred; and
(iii) If you elect COBRA insurance coverage, WTAM directly will pay to you COBRA Premiums for twenty-one months following the Date of Termination, provided that WTAM’s payment obligation shall cease upon the expiration of your rights under COBRA or if you became reemployed and eligible for group health benefits. Furthermore, the Company agrees to maintain, for a period of at least six years after your termination, directors’ and officers’ liability insurance insuring you (in your capacity as an officer and/or director) and other officers and directors, with a limit of liability not less than the aggregate of the respective amounts set forth in the policy or policies maintained by the Company immediately prior to the Change of Control. Notwithstanding the foregoing, if you breach any of the provisions contained in Paragraph 4, all payments under this Paragraph 9 shall immediately cease, but you shall be entitled to retain any payments made to you prior to any breach by you of the provisions of Paragraph 4. However, if you shall breach the provisions of Paragraph 4(c), the Company shall be entitled to recover from you a pro-rata portion of the payments made to you under this Paragraph 9 that corresponds to the proportionate period of time that you were in breach of Paragraph 4(c). If you initiate or otherwise participate in any arbitration proceeding against the Company to enforce the rights and entitlements granted to you pursuant to this Paragraph 9 and you substantially prevail in such a proceeding, you shall be entitled to recover from the Company all of your costs of enforcement, including reasonable attorney’s fees and expenses.
Appears in 2 contracts
Samples: Employment Agreement (Neoprobe Corp), Employment Agreement (Neoprobe Corp)
Change of Control Severance. The provisions In the event that during the term of this Paragraph 9 shall apply Agreement the Company terminates the Employee’s employment without Cause or the Employee terminates the Employee’s employment for Good Reason, in lieu of, and expressly supersede, the provisions of Paragraph 7 regarding severance pay and benefits upon a termination of employment, if such termination of employment occurs each case within eighteen months after the occurrence of two years following a Change of Control (as defined below). Upon a Post-Change of Control Termination, and provided you (I) enter into, do not revoke, and comply with the Release and (II) you comply with the Twelve-Month Restrictive Covenant (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary of the Date of Termination), WTAM will pay, in the manner set forth below, as severance to you (or in the case of your subsequent deathControl, the legal representative of your estate or such other person or persons as you following provisions shall have designated by written notice to WTAM):apply:
(ia) The Company shall pay to the Employee an amount equal to the sum of (Ai) 1.75 times twenty-four (24) months of the Employee’s monthly base salary in effect on the date the Employee’s employment terminates, (ii) two hundred percent (200%) of the Employee’s Average Annual Base Salary; Cash Bonus, plus (Biii) an amount determined by multiplying the Average Cash Incentive Compensation if approved by the fraction obtained by dividing Compensation Committee of the number Board, a Pro Rata Portion of days employed by the Company during the Termination Year by 365Employee’s Average Annual Cash Bonus, and (C) 1.75 times the Average Cash Incentive Compensationif any. The amounts in this Paragraph 9(i) Subject to Section 9 below, payment shall be paid made in a lump sum on the first payroll date sixty (60) days following the 30th day after the Date of Termination if permissible under Section 409A Employee’s Separation from Service.
(b) The Employee and such of the Code without being subject to additional tax, penalty or surcharge under Section 409A Employee’s dependents as are participating as of the Code date of the Employee’s termination (it being understood that if a lump sum payment is not permissible thereunder, the amounts under this Paragraph 9(i“Covered Dependents”) shall be paid in the same schedule as set forth in Paragraph 7 above);
(ii) you shall be entitled to accelerated vesting the medical continuation benefits specified in Section 3(b) above for a maximum period equal to the number of any unvested portion of any time-based equity award that would have vested in months for which the twenty-one-month period following Company is obligated to pay the Date of Termination as if no termination had occurred; andEmployee’s base salary pursuant to Section 4(a) above.
(iiic) If you elect COBRA insurance coverage, WTAM directly All unvested stock options will pay to you COBRA Premiums for twenty-one months following fully vest on the Date date of Termination, provided that WTAMEmployee’s payment obligation shall cease upon the expiration termination of your rights under COBRA or if you became reemployed and eligible for group health benefitsemployment. Furthermore, the Company agrees to maintain, for a period of at least six years after your termination, directors’ and officers’ liability insurance insuring you (in your capacity as an officer and/or director) and other officers and directors, with a limit of liability not less than the aggregate of the respective amounts set forth in the policy or policies maintained All unvested restricted stock held by the Company immediately prior on the Employee’s behalf, all unvested stock rights awards, and all unvested performance share awards will fully vest on the date of the Employee’s termination of employment and will be distributed to the Employee within thirty (30) days of Employee’s Separation from Service.
(d) If the Employee’s unvested Equity Awards have been exchanged pursuant to Section 5(c) for the right to receive a contingent cash payment based on the Base Restricted Share Value or a contingent cash payment based on the Base Performance Share Value, subject to Section 9 below, the Employee shall receive a cash payment made in a lump sum sixty (60) days following the Employee’s Separation from Service equal to any portion of the unpaid Base Restricted Share Value and/or the unpaid Base Performance Share Value, as the case may be, that has not been paid pursuant to Section 5(c), together with accrued but unpaid interest at the Prime Rate on such unpaid amount from the date of the Change of ControlControl to the date of payment. Notwithstanding For the foregoingsake of clarity, if you breach any of Section 5(c) applies, the provisions contained in Paragraph 4, all payments under this Paragraph 9 shall immediately cease, but you Employee shall be entitled to retain any payments made to you prior to any breach by you of the provisions of Paragraph 4. However, if you shall breach the provisions of Paragraph 4(c), the Company shall be entitled to recover from you a pro-rata portion of the payments made to you under this Paragraph 9 that corresponds to the proportionate period of time that you were in breach of Paragraph 4(c). If you initiate or otherwise participate in any arbitration proceeding against the Company to enforce the rights and entitlements granted to you cash payment pursuant to this Paragraph 9 and you substantially prevail in such a proceeding, you Section 4(d) but shall be entitled not receive any stock pursuant to recover from the Company all of your costs of enforcement, including reasonable attorney’s fees and expensesSection 4(c).
Appears in 2 contracts
Samples: Severance and Change of Control Agreement (Regency Centers Corp), Severance and Change of Control Agreement (Regency Centers Corp)
Change of Control Severance. The provisions In the event that during the term of this Paragraph 9 shall apply Agreement the Company terminates the Employee’s employment without Cause or the Employee terminates the Employee’s employment for Good Reason, in lieu of, and expressly supersede, the provisions of Paragraph 7 regarding severance pay and benefits upon a termination of employment, if such termination of employment occurs each case within eighteen months after the occurrence of two (2) years following a Change of Control (as defined below). Upon a Post-Change of Control Termination, and provided you (I) enter into, do not revoke, and comply with the Release and (II) you comply with the Twelve-Month Restrictive Covenant (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary of the Date of Termination), WTAM will pay, in the manner set forth below, as severance to you (or in the case of your subsequent deathControl, the legal representative of your estate or such other person or persons as you following provisions shall have designated by written notice to WTAM):apply:
(ia) The Company shall pay to the Employee an amount equal to the sum of (Ai) 1.75 times twenty-four (24) months of the Employee’s monthly base salary in effect on the date the Employee’s employment terminates, (ii) two hundred percent (200%) of the Employee’s Average Annual Base Salary; (B) an amount determined by multiplying the Average Cash Incentive Compensation by the fraction obtained by dividing the number of days employed by the Company during the Termination Year by 365Bonus, and (Ciii) 1.75 times twenty-four (24) months of the Average Cash Incentive CompensationEmployee’s Medical Benefits. The amounts in this Paragraph 9(i) Subject to Section 11 below, payment shall be paid made in a lump sum on the first payroll date business day after sixty (60) days following the 30th day after Employee’s Separation from Service.
(b) All unvested stock options will fully vest on the Date of Termination if permissible under Section 409A date of the Code without being Employee’s termination of employment. All unvested restricted stock, all unvested stock rights awards, and all unvested performance share awards granted to the Employee will fully vest on the date of the Employee’s termination of employment and will be distributed to the Employee within thirty (30) days of Employee’s Separation from Service.
(c) If the Employee’s unvested Equity Awards have been exchanged pursuant to Section 6(c) for the right to receive a contingent cash payment based on the Base Restricted Share Value or a contingent cash payment based on the Base Performance Share Value, subject to additional taxSection 11 below, penalty or surcharge under Section 409A of the Code (it being understood that if Employee shall receive a cash payment made in a lump sum payment is on the first business day after sixty (60) days following the Employee’s Separation from Service equal to any portion of the unpaid Base Restricted Share Value and/or the unpaid Base Performance Share Value, as the case may be, that has not permissible thereunderbeen paid pursuant to Section 6(c), together with accrued but unpaid interest at the amounts under this Paragraph 9(iPrime Rate on such unpaid amount from the date of the Change of Control to the date of payment. For the sake of clarity, if Section 6(c) shall be paid in applies, then the same schedule as set forth in Paragraph 7 above);
(ii) you Employee shall be entitled to accelerated vesting of any unvested portion of any time-based equity award that would have vested in the twenty-one-month period following the Date of Termination as if no termination had occurred; and
(iii) If you elect COBRA insurance coverage, WTAM directly will pay to you COBRA Premiums for twenty-one months following the Date of Termination, provided that WTAM’s a cash payment obligation shall cease upon the expiration of your rights under COBRA or if you became reemployed and eligible for group health benefits. Furthermore, the Company agrees to maintain, for a period of at least six years after your termination, directors’ and officers’ liability insurance insuring you (in your capacity as an officer and/or director) and other officers and directors, with a limit of liability not less than the aggregate of the respective amounts set forth in the policy or policies maintained by the Company immediately prior to the Change of Control. Notwithstanding the foregoing, if you breach any of the provisions contained in Paragraph 4, all payments under this Paragraph 9 shall immediately cease, but you shall be entitled to retain any payments made to you prior to any breach by you of the provisions of Paragraph 4. However, if you shall breach the provisions of Paragraph 4(c), the Company shall be entitled to recover from you a pro-rata portion of the payments made to you under this Paragraph 9 that corresponds to the proportionate period of time that you were in breach of Paragraph 4(c). If you initiate or otherwise participate in any arbitration proceeding against the Company to enforce the rights and entitlements granted to you pursuant to this Paragraph 9 and you substantially prevail in such a proceeding, you Section (c) but shall be entitled not receive any stock pursuant to recover from the Company all of your costs of enforcement, including reasonable attorney’s fees and expensesSection (b).
Appears in 1 contract
Samples: Severance and Change of Control Agreement (Regency Centers Corp)
Change of Control Severance. The provisions of this Paragraph 9 shall apply in lieu of(a) If, and expressly supersede, the provisions of Paragraph 7 regarding severance pay and benefits upon a termination of employment, if such termination of employment occurs within eighteen twelve (12) months after the occurrence of a Change of Control (in Control, as defined belowin Section 11(c). Upon , there occurs a Post-Change of Control Termination, and provided you (Ias defined in Section 11(d), Employee shall receive as severance compensation a payment in an amount equal to all forms of compensation referred to in Sections 3(a) enter into, do not revoke, and comply with the Release and (IIb) you comply with above for two and one-half (2 1/2) years (the Twelve-Month Restrictive Covenant “Change of Control Termination Severance Period”), to the extent the Change in Control Termination occurs after April 30, 2013 (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary originally scheduled “Termination Date” of the Date First Amended Employment Agreement) and the Change in Control constitutes a “change in control event” within the meaning of Termination)Section 409A, WTAM will paypayable in a lump sum, including bonuses (calculated at 100% of target) but excluding ungranted stock options and restricted shares. In all other cases the severance compensation shall be paid in installments in accordance with Employer’s payroll cycle. Such payments shall be in addition to the manner payments and benefits set forth belowin Section 12 hereof. Additionally, as severance to you all unvested shares of restricted Common Stock, stock options and stock units then held by Employee (or including the 2012 PBRS but excluding the PVRS) shall automatically become fully vested (in the case of your subsequent deaththe 2012 PBRS assuming performance at maximum) and any and all restrictions thereon shall lapse immediately prior to the date of such Change of Control Termination. With respect to the PVRS, such shares will not continue to vest following any such Change of Control Termination, nor will they immediately become vested or exercisable immediately following any such Change of Control Termination except as may be specifically provided otherwise in writing related to the relevant grant. If required under section 409A of the Code, any payments which would otherwise be made to Employee during the first six (6) months following the date of the Change of Control Termination will be deferred and paid to Employee in a lump sum amount six (6) months following the date of the Change of Control Termination together with interest at the AFR on such date; provided, however, that any payments or benefits provided under this Section 11(a) that may be considered deferred compensation under section 409A of the Code but that do not exceed the Section 409A Limit (as defined in Section 7(b) above) and that qualify as separation pay under Treasury Regulation Section 1.409A-1(b)(9)(iii), may be paid within the first six (6) months following Employee’s Change of Control Termination under this Agreement; provided, further, that amounts that are exempt from section 409A under the “short-term deferral” exemption may also be paid within the first six (6) months following Employee’s Change in Control Termination under this Agreement. With respect to Change in Control Terminations occurring following the originally scheduled “Termination Date” of the First Amended Employment Agreement, installment payments hereunder shall be considered separate payments for purposes of section 409A. Additionally, to the extent permitted by law, Employer will provide Employee and his family health insurance coverage, through COBRA reimbursement, until the earlier of eighteen (18) months following such Change of Control Termination and the date that Employee starts other full-time employment.
(b) Employee’s eligibility to receive the benefits described in Section 11(a) shall be conditioned upon Employee’s executing and not revoking (within a period not to exceed twenty eight (28) days from when it is provided to him) Employer’s standard release agreement in which Employee, among other things, releases all claims against Employer. Such release must be irrevocably effective within sixty (60) days following the Change in Control Termination. Subject to the six (6) month delay above, the legal representative payments shall begin or be made on the sixtieth day following the Employee’s Change in Control Termination.
(c) A Change in Control of your estate Employer shall occur upon the happening of the earliest to occur of the following:
(1) 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) Employer, (ii) any trustee or such other person fiduciary holding securities under an employee benefit plan of Employer, (iii) any corporations owned, directly or persons indirectly, by the stockholders of Employer in substantially the same proportions as you shall have designated by written notice to WTAM):their ownership of stock, or (iv) an Existing Stockholder) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Employer representing 33% or more of the combined voting power of Employer’s then outstanding voting securities. For purposes of this subparagraph, an “Existing Stockholder” means:
(i) Xxxxxxx Xxxxxx, his wife, all the sum lineal descendents of Xxxxxxx Xxxxxx, his wife, their lineal descendants, and their spouses (so long as they remain spouses) and adopted children of such descendents; (ii) all trusts of the benefit of any persons described in clause (i) and trustees of such trusts; (iii) all legal representatives of any person or trust described in clauses (i) and (ii); and (iv) all partnership, corporation, limited liability companies or other entities controlled by the persons described in clauses (i), (ii) or (iii) (such persons referred to in this clause (A) 1.75 times the Annual Base Salarycollectively, “Xxxxxx Affiliates”); or
(B) an amount any other stockholder of Employer which, together with such stockholder’s affiliates, owns more than 5% of the common stock of Choice Hotels International, Inc. as of May 25, 2012, so long as the Xxxxxx Affiliates continue to own more common stock of Choice Hotels International, Inc. than such stockholder.
(2) Individuals constituting the Board of Directors on the Effective Date and the successors of such individuals (“Continuing Directors’) cease to constitute a majority of the Board of Directors. For this purpose, a director shall be a successor if and only if he or she was nominated by a Board of Directors (or a Nominating Committee thereof) on which individuals constituting the Board of Directors on the Effective Date and their successors (determined by multiplying the Average Cash Incentive Compensation by the fraction obtained by dividing the number prior application of days employed by the Company during the Termination Year by 365, and (Cthis sentence) 1.75 times the Average Cash Incentive Compensation. The amounts in this Paragraph 9(i) shall be paid in constituted a lump sum on the first payroll date following the 30th day after the Date of Termination if permissible under Section 409A of the Code without being subject to additional tax, penalty or surcharge under Section 409A of the Code (it being understood that if a lump sum payment is not permissible thereunder, the amounts under this Paragraph 9(i) shall be paid in the same schedule as set forth in Paragraph 7 above);majority.
(ii3) you shall be entitled to accelerated vesting The stockholders of Employer approve a plan of merger or consolidation (“Combination”) with any unvested portion other corporation or legal person, other than a Combination which would result in stockholders of any time-based equity award that would have vested in the twenty-one-month period following the Date of Termination as if no termination had occurred; and
(iii) If you elect COBRA insurance coverage, WTAM directly will pay to you COBRA Premiums for twenty-one months following the Date of Termination, provided that WTAM’s payment obligation shall cease upon the expiration of your rights under COBRA or if you became reemployed and eligible for group health benefits. Furthermore, the Company agrees to maintain, for a period of at least six years after your termination, directors’ and officers’ liability insurance insuring you (in your capacity as an officer and/or director) and other officers and directors, with a limit of liability not less than the aggregate of the respective amounts set forth in the policy or policies maintained by the Company Employer immediately prior to such Combination owning, immediately thereafter, more than sixty-five percent (65%) of the combined voting power of either the surviving entity or the entity owning directly or indirectly all of the common stock, or its equivalent, of the surviving entity; provided, however, that if stockholder approval is not required for such Combination, the Change in Control shall occur upon the consummation of Control. Notwithstanding such Combination.
(4) The stockholders of Employer approve a plan of complete liquidation of Employer or an agreement for the foregoingsale or disposition by Employer of all or substantially all of Employer’s stock and/or assets, or accept a tender offer for substantially all of Employer’s stock (or any transaction having a similar effect); provided, however, that if you breach any of the provisions contained in Paragraph 4, all payments under this Paragraph 9 shall immediately cease, but you shall be entitled to retain any payments made to you prior to any breach by you of the provisions of Paragraph 4. However, if you shall breach the provisions of Paragraph 4(c)stockholder approval is not required for such transaction, the Company Change in Control shall be entitled to recover from you a pro-rata portion occur upon consummation of the payments made to you under this Paragraph 9 that corresponds to the proportionate period of time that you were in breach of Paragraph 4(c). If you initiate or otherwise participate in any arbitration proceeding against the Company to enforce the rights and entitlements granted to you pursuant to this Paragraph 9 and you substantially prevail in such a proceeding, you shall be entitled to recover from the Company all of your costs of enforcement, including reasonable attorney’s fees and expensestransaction.
Appears in 1 contract
Samples: Employment Agreement (Choice Hotels International Inc /De)
Change of Control Severance. The provisions In the event that during the term of this Paragraph 9 shall apply Agreement the Company terminates the Employee’s employment without Cause or the Employee terminates the Employee’s employment for Good Reason, in lieu of, and expressly supersede, the provisions of Paragraph 7 regarding severance pay and benefits upon a termination of employment, if such termination of employment occurs each case within eighteen months after the occurrence of two years following a Change of Control (as defined below). Upon a Post-Change of Control Termination, and provided you (I) enter into, do not revoke, and comply with the Release and (II) you comply with the Twelve-Month Restrictive Covenant (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary of the Date of Termination), WTAM will pay, in the manner set forth below, as severance to you (or in the case of your subsequent deathControl, the legal representative of your estate or such other person or persons as you following provisions shall have designated by written notice to WTAM):apply:
(ia) The Company shall pay to the Employee an amount equal to the sum of (Ai) 1.75 times thirty-six (36) months of the Employee’s monthly base salary in effect on the date the Employee’s employment terminates, (ii) three hundred percent (300%) of the Employee’s Average Annual Base Salary; Cash Bonus, plus (Biii) an amount determined by multiplying the Average Cash Incentive Compensation if approved by the fraction obtained by dividing Compensation Committee of the number Board, a Pro Rata Portion of days employed by the Company during the Termination Year by 365Employee’s Average Annual Cash Bonus, and (C) 1.75 times the Average Cash Incentive Compensationif any. The amounts in this Paragraph 9(i) Subject to Section 9 below, payment shall be paid made in a lump sum on the first payroll date sixty (60) days following the 30th day after the Date of Termination if permissible under Section 409A Employee’s Separation from Service.
(b) The Employee and such of the Code without being subject to additional tax, penalty or surcharge under Section 409A Employee’s dependents as are participating as of the Code date of the Employee’s termination (it being understood that if a lump sum payment is not permissible thereunder, the amounts under this Paragraph 9(i“Covered Dependents”) shall be paid in the same schedule as set forth in Paragraph 7 above);
(ii) you shall be entitled to accelerated vesting the medical continuation benefits specified in Section 3(b) above for a maximum period equal to the number of any unvested portion of any time-based equity award that would have vested in months for which the twenty-one-month period following Company is obligated to pay the Date of Termination as if no termination had occurred; andEmployee’s base salary pursuant to Section 4(a) above.
(iiic) If you elect COBRA insurance coverage, WTAM directly All unvested stock options will pay to you COBRA Premiums for twenty-one months following fully vest on the Date date of Termination, provided that WTAMEmployee’s payment obligation shall cease upon the expiration termination of your rights under COBRA or if you became reemployed and eligible for group health benefitsemployment. Furthermore, the Company agrees to maintain, for a period of at least six years after your termination, directors’ and officers’ liability insurance insuring you (in your capacity as an officer and/or director) and other officers and directors, with a limit of liability not less than the aggregate of the respective amounts set forth in the policy or policies maintained All unvested restricted stock held by the Company immediately prior on the Employee’s behalf, all unvested stock rights awards, and all unvested performance share awards will fully vest on the date of the Employee’s termination of employment and will be distributed to the Employee within thirty (30) days of Employee’s Separation from Service.
(d) If the Employee’s unvested Equity Awards have been exchanged pursuant to Section 5(c) for the right to receive a contingent cash payment based on the Base Restricted Share Value or a contingent cash payment based on the Base Performance Share Value, subject to Section 9 below, the Employee shall receive a cash payment made in a lump sum sixty (60) days following the Employee’s Separation from Service equal to any portion of the unpaid Base Restricted Share Value and/or the unpaid Base Performance Share Value, as the case may be, that has not been paid pursuant to Section 5(c), together with accrued but unpaid interest at the Prime Rate on such unpaid amount from the date of the Change of ControlControl to the date of payment. Notwithstanding For the foregoingsake of clarity, if you breach any of Section 5(c) applies, the provisions contained in Paragraph 4, all payments under this Paragraph 9 shall immediately cease, but you Employee shall be entitled to retain any payments made to you prior to any breach by you of the provisions of Paragraph 4. However, if you shall breach the provisions of Paragraph 4(c), the Company shall be entitled to recover from you a pro-rata portion of the payments made to you under this Paragraph 9 that corresponds to the proportionate period of time that you were in breach of Paragraph 4(c). If you initiate or otherwise participate in any arbitration proceeding against the Company to enforce the rights and entitlements granted to you cash payment pursuant to this Paragraph 9 and you substantially prevail in such a proceeding, you Section 4(d) but shall be entitled not receive any stock pursuant to recover from the Company all of your costs of enforcement, including reasonable attorney’s fees and expensesSection 4(c).
Appears in 1 contract
Samples: Severance and Change of Control Agreement (Regency Centers Corp)
Change of Control Severance. The provisions In addition to the rights of the Executive under the Company’s employee benefit plans (paragraph C of Section 3 above) but in lieu of any severance payment under paragraph F of this Paragraph 9 shall apply in lieu of, and expressly supersede, the provisions of Paragraph 7 regarding severance pay and benefits upon a termination of employmentSection 4 above, if such termination of employment occurs within eighteen months after the occurrence of there is a Change in Control of Control the Company (as defined below). Upon a Post-Change of Control Termination, ) during the Term and provided you within six (I6) enter into, do not revoke, and comply with months thereafter the Release and (II) you comply with the Twelve-Month Restrictive Covenant (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary employment of the Date of Termination), WTAM will pay, in the manner set forth below, as severance to you (Executive is concurrently or in the case of your subsequent death, the legal representative of your estate or such other person or persons as you shall have designated by written notice to WTAM):
subsequently terminated (i) by the sum Company without cause, (ii) by the expiration of the Term, or (iii) by the resignation of the Executive because he has reasonably determined in good faith that his titles, authorities, responsibilities, salary, bonus opportunities or benefits have been materially diminished, that a material adverse change in his working conditions has occurred, or the Company has breached this Agreement (clause (iii) of the first paragraph of this Section 4(G) shall mean “Good Reason”), the Company shall pay the Executive, as a severance payment, at the time of such termination, in an amount equal to (A) 1.75 times the Annual Executive’s Base Salary; , as in effect at the time of such termination, during the Severance Period as if the Executive had not been terminated and remained an employee of the Company through the expiration of such period, (B) a bonus equal to one (1) year of Base Salary (as in effect on the date of termination) plus an amount determined by multiplying the Average Cash Incentive Compensation by the fraction obtained by dividing the number additional two months of days employed by Base Salary for every fully completed year of Executive’s service to the Company payable in equal bi-monthly installments during the Termination Year by 365Severance Period, and one (1) year of Bonus (as maximum allowable in effect on the date of termination) plus an additional two months of prorated bonus for every fully completed year of Executive’s service to the Company payable in equal bi-monthly installments during the Severance Period, (C) 1.75 times without duplication to (B), the Average Cash Incentive Compensationunpaid bonus, if any, for the year in which the termination occurs, prorated to the date of termination of Executive’s employment, to be paid at the time the Company pays bonuses to other senior executives of the Company and (D) the remaining unvested stock options from 3(D) shall vest immediately. The amounts in this Paragraph 9(i) Company shall be paid in a lump sum on promptly reimburse the first payroll date following Executive for the 30th day after the Date amount of Termination if permissible under Section 409A any expenses incurred prior to such termination of the Code without being subject to additional tax, penalty or surcharge Executive as required under paragraph F of Section 409A of the Code (it being understood that if a lump sum payment is not permissible thereunder, the amounts under this Paragraph 9(i) shall be paid in the same schedule as set forth in Paragraph 7 3 above);
(ii) you shall be entitled to accelerated vesting of any unvested portion of any time-based equity award that would have vested in the twenty-one-month period following the Date of Termination as if no termination had occurred; and
(iii) If you elect COBRA insurance coverage, WTAM directly will pay to you COBRA Premiums for twenty-one months following the Date of Termination, provided that WTAM’s payment obligation shall cease upon the expiration of your rights under COBRA or if you became reemployed and eligible for group health benefits. Furthermore, the Company agrees to maintain, for a period of at least six years after your termination, directors’ and officers’ liability insurance insuring you (in your capacity as an officer and/or director) and other officers and directors, with a limit of liability not less than the aggregate of the respective amounts set forth in the policy or policies maintained by the Company immediately prior to the Change of Control. Notwithstanding the foregoing, if you breach any before the Executive may resign pursuant to clause (iii) of this paragraph, the Executive shall deliver to the Company a written notice of the provisions contained Executive’s intent to terminate his employment thereunder, and the Company shall have been given a reasonable opportunity to cure any such act, omission or condition within thirty (30) days after the Company’s receipt of such notice. For the purpose of this Agreement, a Change in Paragraph 4Control of the Company has occurred when: (a) any person (defined for the purposes of this paragraph G to mean any person within the meaning of Section 13(d) of the Exchange Act), other than Navidea, an employee benefit plan created by its Board of Directors for the benefit of its employees, or a participant in a transaction approved by its Board for the principal purpose of raising additional capital, either directly or indirectly, or an Affiliate of such participant, acquires beneficial ownership (determined under Rule 13d-3 of the regulations promulgated under Section 13(d) of the Exchange Act) of securities issued by Navidea having thirty percent (30%) or more of the voting power of all payments the voting securities issued by Navidea in the election of directors at the next meeting of the holders of voting securities to be held for such purpose; (b) a majority of the directors elected at any meeting of the holders of voting securities of Navidea are persons who were not nominated for such election by the Board or a duly constituted committee of the Board having authority in such matters; (c) the stockholders of Navidea approve a merger or consolidation of Navidea with another person other than a merger or consolidation in which the holders of Navidea’s voting securities issued and outstanding immediately before such merger or consolidation continue to hold voting securities in the surviving or resulting corporation (in the same relative proportions to each other as existed before such event) comprising eighty percent (80%) or more of the voting power for all purposes of the surviving or resulting corporation; or (d) the stockholders of Navidea approve a transfer of substantially all of the assets of Navidea to another person other than: (i) a transfer to a transferee, eighty percent (80%) or more of the voting power of which is owned or controlled by Navidea or by the holders of Navidea’s voting securities issued and outstanding immediately before such transfer in the same relative proportions to each other as existed before such event, or (ii) a transfer following which Navidea continues the operation of one or more lines of business that were operated by Navidea prior to the transfer, and a class of Navidea’s common stock remains registered under this Paragraph 9 shall immediately ceaseSection 12 of the Exchange Act. The Parties agree that for the purpose of determining the time when a Change of Control has occurred that if any transaction results from a definite proposal that was made before the end of the Term but which continued until after the end of the Term and such transaction is consummated after the end of the Term, but you such transaction shall be entitled deemed to retain any payments have occurred when the definite proposal was made to you prior to any breach by you for the purposes of the provisions first sentence of Paragraph this paragraph G of Section 4. HoweverNotwithstanding the foregoing, if you shall breach before the provisions Executive may resign pursuant to clause (iii) of Paragraph 4(cthe first paragraph of this Section 4(G), the Executive shall deliver to the Company a written notice of the Executive’s intent to terminate his employment thereunder, and the Company shall be entitled have been given a reasonable opportunity to recover from you a pro-rata portion cure any such act, omission or condition within thirty (30) days after the Company’s receipt of the payments made to you under this Paragraph 9 that corresponds to the proportionate period of time that you were in breach of Paragraph 4(c). If you initiate or otherwise participate in any arbitration proceeding against the Company to enforce the rights and entitlements granted to you pursuant to this Paragraph 9 and you substantially prevail in such a proceeding, you shall be entitled to recover from the Company all of your costs of enforcement, including reasonable attorney’s fees and expensesnotice.
Appears in 1 contract
Samples: Employment Agreement (Navidea Biopharmaceuticals, Inc.)
Change of Control Severance. The provisions of this Paragraph 9 shall apply in lieu of(a) If, and expressly supersede, the provisions of Paragraph 7 regarding severance pay and benefits upon a termination of employment, if such termination of employment occurs within eighteen twelve (12) months after the occurrence of a Change of Control (in Control, as defined belowin Section 11(c). Upon , there occurs a Post-Change of Control Termination, and provided you (I) enter into, do not revoke, and comply with the Release and (II) you comply with the Twelve-Month Restrictive Covenant (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary of the Date of Terminationas defined in Section 11(d), WTAM will pay, in the manner set forth below, Employee shall receive as severance compensation a payment in an amount equal to you (or in the case of your subsequent death, the legal representative of your estate or such other person or persons as you shall have designated by written notice to WTAM):
(i) if such Change of Control Termination occurs within two (2) years of the sum Effective Date, all forms of compensation referred to in Sections 3(a) through 3(g) and Section 3(k) above for three (A3) 1.75 times years after the Annual Base Salarydate of such Change of Control Termination, payable in installments in accordance with Employer’s payroll cycle, including bonuses (calculated based only on the actual payout of the EPS portion of the bonus as all Employer’s officers receive in a given year) but excluding ungranted stock options and restricted shares; or (Bii) an if such Change of Control Termination occurs more than two (2) years after the Effective Date, all forms of compensation referred to in Sections 3(a) through 3(g) and Section 3(k) above for the longer of the remainder of the Term or two and one-half (2 1/2) years, payable in installments in accordance with Employer’s payroll cycle, including bonuses (calculated based only on the actual payout of the EPS portion of the bonus as all Employer’s officers receive in a given year) but excluding ungranted stock options and restricted shares. The period of time that Employee receives compensation pursuant to clause (i) or (ii) above shall be referred to as the “Change of Control Severance Period”. Moreover, all unvested shares of restricted Common Stock and stock options then held by Employee (except the Initial PBRS) shall automatically become fully vested and any and all restrictions thereon shall lapse immediately prior to the date of such Change of Control Termination. With respect to the Initial PBRS, if the Initial PBRS would otherwise be deemed to have vested pursuant to the terms set forth in Section 3(c)(iii) above, Employee will be entitled to vesting of a fraction of the Initial PBRS, the numerator of which is the amount determined by multiplying of time from the Average Cash Incentive Compensation by Effective Date until the fraction obtained by dividing date of Change of Control Termination (rounded to the nearest whole number of days employed by years) and the Company denominator of which is five (5) years. With respect to the PVRS, such shares will not continue to vest following any such Change of Control Termination, nor will they immediately become vested or exercisable immediately following any such Change of Control Termination. If required under section 409A of the Code, any payments which would otherwise be made to Employee during the first six (6) months following the date of the Change of Control Termination Year by 365, will be deferred and (C) 1.75 times the Average Cash Incentive Compensation. The amounts in this Paragraph 9(i) shall be paid to Employee in a lump sum on the first payroll date amount six (6) months following the 30th day after date of the Date Change of Control Termination if permissible together with interest at the AFR on such date; provided, however, that any payments or benefits provided under this Section 11(a) that may be considered deferred compensation under section 409A of the Code without being subject to additional tax, penalty or surcharge under but that do not exceed the Section 409A Limit (as defined in Section 7(b) above) and that qualify as separation pay under Treasury Regulation Section 1.409A-1(b)(9)(iii), may be paid within the first six (6) months following Employee’s Change of the Code (it being understood that if a lump sum payment is not permissible thereunder, the amounts Control Termination under this Paragraph 9(iAgreement. Additionally, Employer will provide Employee and his family health insurance coverage, through COBRA reimbursement, until the earlier of eighteen (18) months following such Change of Control Termination and the date that Employee starts other full-time employment.
(b) Employee’s right to receive the benefits described in Section 11(a) shall be paid conditioned upon Employee’s executing Employer’s standard release agreement in which Employee releases all claims against Employer.
(c) A Change in Control of Employer shall occur upon the same schedule happening of the earliest to occur of the following:
(1) Any “person” as set forth such term is used in Paragraph 7 above);
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (other than (i) Employer, (ii) you shall be entitled to accelerated vesting any trustee or other fiduciary holding securities under an employee benefit plan of any unvested portion of any time-based equity award that would have vested in the twenty-one-month period following the Date of Termination as if no termination had occurred; and
Employer, (iii) If you elect COBRA insurance coverageany corporations owned, WTAM directly will pay to you COBRA Premiums for twenty-one months following or indirectly, by the Date stockholders of TerminationEmployer in substantially the same proportions as their ownership of stock, provided that WTAM’s payment obligation shall cease upon the expiration of your rights under COBRA or if you became reemployed (iv) Stxxxxx Xxxxxx, his wife, their lineal descendants, and eligible for group health benefits. Furthermore, the Company agrees to maintain, for a period of at least six years after your termination, directors’ and officers’ liability insurance insuring you their spouses (in your capacity so long as an officer and/or directorthey remain spouses) and other officers and directors, with a limit the estate of liability not less than the aggregate any of the respective amounts set forth foregoing persons, and any partnership, trust, corporation or other entity to the extent shares of common stock (or their equivalent) are considered to be beneficially owned by any of the persons or estates referred to in the policy foregoing provisions of this Section 11(c) or policies maintained any transferee thereof) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Employer representing 33% or more of the combined voting power of Employer’s then outstanding voting securities.
(2) Individuals constituting the Board of Directors on the Effective Date and the successors of such individuals (“Continuing Directors’) cease to constitute a majority of the Board of Directors. For this purpose, a director shall be a successor if and only if he or she was nominated by a Board of Directors (or a Nominating Committee thereof) on which individuals constituting the Company Board of Directors on the Effective Date and their successors (determined by prior application of this sentence) constituted a majority.
(3) The stockholders of Employer approve a plan of merger or consolidation (“Combination”) with any other corporation or legal person, other than a Combination which would result in stockholders of Employer immediately prior to such Combination owning, immediately thereafter, more than sixty-five percent (65%) of the combined voting power of either the surviving entity or the entity owning directly or indirectly all of the common stock, or its equivalent, of the surviving entity; provided, however, that if stockholder approval is not required for such Combination, the Change in Control shall occur upon the consummation of Control. Notwithstanding such Combination.
(4) The stockholders of Employer approve a plan of complete liquidation of Employer or an agreement for the foregoingsale or disposition by Employer of all or substantially all of Employer’s stock and/or assets, or accept a tender offer for substantially all of Employer’s stock (or any transaction having a similar effect); provided, however, that if you breach any of the provisions contained in Paragraph 4, all payments under this Paragraph 9 shall immediately cease, but you shall be entitled to retain any payments made to you prior to any breach by you of the provisions of Paragraph 4. However, if you shall breach the provisions of Paragraph 4(c)stockholder approval is not required for such transaction, the Company Change in Control shall be entitled to recover from you a pro-rata portion occur upon consummation of the payments made to you under this Paragraph 9 that corresponds to the proportionate period of time that you were in breach of Paragraph 4(c). If you initiate or otherwise participate in any arbitration proceeding against the Company to enforce the rights and entitlements granted to you pursuant to this Paragraph 9 and you substantially prevail in such a proceeding, you shall be entitled to recover from the Company all of your costs of enforcement, including reasonable attorney’s fees and expensestransaction.
Appears in 1 contract
Samples: Employment Agreement (Choice Hotels International Inc /De)
Change of Control Severance. The provisions of this Paragraph 9 shall apply in lieu of(a) If, and expressly supersede, the provisions of Paragraph 7 regarding severance pay and benefits upon a termination of employment, if such termination of employment occurs within eighteen twelve (12) months after the occurrence of a Change of Control (in Control, as defined belowin Section 11(c). Upon , there occurs a Post-Change of Control Termination, and provided you (Ias defined in Section 11(d), Employee shall receive as severance compensation a payment in an amount equal to all forms of compensation referred to in Sections 3(a) enter into, do not revoke, and comply with the Release and (IIb) you comply with above for two and one-half (2 1/2) years (the Twelve-Month Restrictive Covenant “Change of Control Termination Severance Period”), to the extent the Change in Control Termination occurs after April 30, 2013 (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary originally scheduled “Termination Date” of the Date First Amended Employment Agreement) and the Change in Control constitutes a “change in control event” within the meaning of Termination)Section 409A, WTAM will paypayable in a lump sum, including bonuses (calculated at 100% of target) but excluding ungranted stock options and restricted shares. In all other cases the severance compensation shall be paid in installments in accordance with Employer’s payroll cycle. Such payments shall be in addition to the manner payments and benefits set forth belowin Section 12 hereof. Additionally, as severance to you all unvested shares of restricted Common Stock, stock options and stock units then held by Employee (or including the 2012 PBRS but excluding the PVRS) shall automatically become fully vested (in the case of your subsequent deaththe 2012 PBRS assuming performance at maximum) and any and all restrictions thereon shall lapse immediately prior to the date of such Change of Control Termination. With respect to the PVRS, such shares will not continue to vest following any such Change of Control Termination, nor will they immediately become vested or exercisable immediately following any such Change of Control Termination except as may be specifically provided otherwise in writing related to the legal representative relevant grant. If required under section 409A of your estate or such other person or persons as you shall have designated by written notice the Code, any payments which would otherwise be made to WTAM):
(i) the sum of (A) 1.75 times the Annual Base Salary; (B) an amount determined by multiplying the Average Cash Incentive Compensation by the fraction obtained by dividing the number of days employed by the Company Employee during the first six (6) months following the date of the Change of Control Termination Year by 365, will be deferred and (C) 1.75 times the Average Cash Incentive Compensation. The amounts in this Paragraph 9(i) shall be paid to Employee in a lump sum on the first payroll date amount six (6) months following the 30th day after date of the Date Change of Control Termination if permissible together with interest at the AFR on such date; provided, however, that any payments or benefits provided under this Section 11(a) that may be considered deferred compensation under section 409A of the Code without being subject to additional tax, penalty or surcharge under but that do not exceed the Section 409A Limit (as defined in Section 7(b) above) and that qualify as separation pay under Treasury Regulation Section 1.409A-1(b)(9)(iii), may be paid within the first six (6) months following Employee’s Change of Control Termination under this Agreement; provided, further, that amounts that are exempt from section 409A under the “short-term deferral” exemption may also be paid within the first six (6) months following Employee’s Change in Control Termination under this Agreement. With respect to Change in Control Terminations occurring following the originally scheduled “Termination Date” of the Code First Amended Employment Agreement, installment payments hereunder shall be considered separate payments for purposes of section 409A. Additionally, to the extent permitted by law, Employer will provide Employee and his family health insurance coverage, through COBRA reimbursement, until the earlier of eighteen (it being understood 18) months following such Change of Control Termination and the date that if a lump sum payment is not permissible thereunder, Employee starts other full-time employment.
(b) Employee’s eligibility to receive the amounts under this Paragraph 9(ibenefits described in Section 11(a) shall be paid conditioned upon Employee’s executing and not revoking (within a period not to exceed twenty eight (28) days from when it is provided to him) Employer’s standard release agreement in which Employee, among other things, releases all claims against Employer. Such release must be irrevocably effective within sixty (60) days following the same schedule Change in Control Termination. Subject to the six (6) month delay above, the payments shall begin or be made on the sixtieth day following the Employee’s Change in Control Termination.
(c) A Change in Control of Employer shall occur upon the happening of the earliest to occur of the following:
(1) Any “person” as set forth such term is used in Paragraph 7 above);
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (other than (i) Employer, (ii) you shall be entitled to accelerated vesting any trustee or other fiduciary holding securities under an employee benefit plan of any unvested portion of any time-based equity award that would have vested in the twenty-one-month period following the Date of Termination as if no termination had occurred; and
Employer, (iii) If you elect COBRA insurance coverageany corporations owned, WTAM directly will pay to you COBRA Premiums for twenty-one months following or indirectly, by the Date stockholders of TerminationEmployer in substantially the same proportions as their ownership of stock, provided that WTAM’s payment obligation shall cease upon or (iv) an Existing Stockholder) becomes the expiration “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of your rights under COBRA securities of Employer representing 33% or if you became reemployed and eligible for group health benefits. Furthermore, the Company agrees to maintain, for a period of at least six years after your termination, directors’ and officers’ liability insurance insuring you (in your capacity as an officer and/or director) and other officers and directors, with a limit of liability not less than the aggregate more of the respective amounts set forth in the policy or policies maintained by the Company immediately prior to the Change combined voting power of ControlEmployer’s then outstanding voting securities. Notwithstanding the foregoingFor purposes of this subparagraph, if you breach any of the provisions contained in Paragraph 4, all payments under this Paragraph 9 shall immediately cease, but you shall be entitled to retain any payments made to you prior to any breach by you of the provisions of Paragraph 4. However, if you shall breach the provisions of Paragraph 4(c), the Company shall be entitled to recover from you a pro-rata portion of the payments made to you under this Paragraph 9 that corresponds to the proportionate period of time that you were in breach of Paragraph 4(c). If you initiate or otherwise participate in any arbitration proceeding against the Company to enforce the rights and entitlements granted to you pursuant to this Paragraph 9 and you substantially prevail in such a proceeding, you shall be entitled to recover from the Company all of your costs of enforcement, including reasonable attorney’s fees and expenses.an “Existing Stockholder” means:
Appears in 1 contract
Samples: Employment Agreement
Change of Control Severance. The provisions of this Paragraph 9 shall apply in lieu of, and expressly supersede, If during the provisions of Paragraph 7 regarding severance pay and benefits upon a termination of employment, if such termination of employment occurs within eighteen months after the occurrence of Term a Change of Control occurs and if during the six (as defined below). Upon a Post-6) month period immediately following such Change of Control Terminationthe Executive’s employment is terminated by the Company without Cause pursuant to Section 8(e) or by the Executive for Good Reason pursuant to Section 8(d), provided that the Executive signs and does not revoke a general release of claims against the Company within the time period specified therein (which time period shall not exceed sixty (60) days), in form and substance satisfactory to the Company (the “Release”), and provided you (I) enter into, do not revoke, and comply with further that such termination is a “separation from service” within the Release and (II) you comply with the Twelve-Month Restrictive Covenant (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary meaning of the Date of TerminationTreasury Regulation § 1.409A-1(h), WTAM will paythen the Company shall provide the following benefits to the Executive, in referred to herein as the manner set forth below, as severance to you (or in the case “Change of your subsequent death, the legal representative of your estate or such other person or persons as you shall have designated by written notice to WTAM):
Control Separation Benefits”: (i) a lump sum payment equal to eighteen (18) months of the sum Executive’s then-current Base Salary (less applicable taxes and withholdings); (ii) the full Annual Milestone Bonus (items (i) and (ii) being the “Change of Control Separation Pay”); (iii) immediate vesting in full of all Equity Awards; (iv) extension of the exercise period for all Stock Options to the end of their term; and (v) if the Executive properly and timely elects to continue his health insurance benefits under COBRA or applicable state continuation coverage after the date of termination, reimbursement for the Executive’s applicable health continuation coverage premiums for the lesser of (A) 1.75 times the Annual Base Salary; eighteen (B18) an amount determined by multiplying the Average Cash Incentive Compensation by the fraction obtained by dividing the number of days employed by the Company during the Termination Year by 365, and (C) 1.75 times the Average Cash Incentive Compensation. The amounts in this Paragraph 9(i) shall be paid in a lump sum on the first payroll date following the 30th day after the Date of Termination if permissible under Section 409A of the Code without being subject to additional tax, penalty or surcharge under Section 409A of the Code (it being understood that if a lump sum payment is not permissible thereunder, the amounts under this Paragraph 9(i) shall be paid in the same schedule as set forth in Paragraph 7 above);
(ii) you shall be entitled to accelerated vesting of any unvested portion of any time-based equity award that would have vested in the twenty-one-month period following the Date of Termination as if no month in which the Executive’s termination had occurred; and
date occurs, or (iiiB) If you elect COBRA insurance coverage, WTAM directly will pay to you COBRA Premiums for twenty-one months following the Date of Terminationmaximum period permitted by applicable law, provided that WTAMthe Company’s payment obligation shall cease upon the expiration of your rights under COBRA or if you became reemployed and eligible for group health benefits. Furthermore, the Company agrees to maintain, for pay a period of at least six years after your termination, directors’ and officers’ liability insurance insuring you (in your capacity as an officer and/or director) and other officers and directors, with a limit of liability not less than the aggregate of the respective amounts set forth in the policy or policies maintained by the Company immediately prior to the Change of Control. Notwithstanding the foregoing, if you breach any of the provisions contained in Paragraph 4, all payments under this Paragraph 9 shall immediately cease, but you shall be entitled to retain any payments made to you prior to any breach by you of the provisions of Paragraph 4. However, if you shall breach the provisions of Paragraph 4(c), the Company shall be entitled to recover from you a pro-rata portion of the payments made to you under this Paragraph 9 that corresponds to Executive’s health continuation coverage premiums will terminate if he becomes eligible for insurance benefits from another employer during the proportionate period reimbursement period. The Change of time that you were in breach of Paragraph 4(c). If you initiate or otherwise participate in any arbitration proceeding against Control Separation Pay will be paid within sixty (60) days after the Company to enforce the rights and entitlements granted to you pursuant to this Paragraph 9 and you substantially prevail in such a proceeding, you shall be entitled to recover from the Company all of your costs of enforcement, including reasonable attorney’s fees and expensestermination date.
Appears in 1 contract
Change of Control Severance. The provisions of this Paragraph 9 shall apply in lieu ofIf, and expressly supersede, the provisions of Paragraph 7 regarding severance pay and benefits upon a termination of employment, if such termination of employment occurs within eighteen twelve (12) months after the occurrence of a Change of Control (in Control, as defined belowin Section 11(c). Upon , there occurs a Post-Change of Control Termination, and provided you (I) enter into, do not revoke, and comply with the Release and (II) you comply with the Twelve-Month Restrictive Covenant (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary of the Date of Terminationas defined in Section 11(d), WTAM will pay, in the manner set forth below, Employee shall receive as severance compensation a payment in an amount equal to you (or in the case of your subsequent death, the legal representative of your estate or such other person or persons as you shall have designated by written notice to WTAM):
(i) if such Change of Control Termination occurs within two (2) years of the sum Effective Date, all forms of compensation referred to in Sections 3(a) through 3(g) and Section 3(k) above for three (A3) 1.75 times years after the Annual Base Salarydate of such Change of Control Termination, payable in installments in accordance with Employer's payroll cycle, including bonuses (calculated based only on the actual payout of the EPS portion of the bonus as all Employer's officers receive in a given year) but excluding ungranted stock options and restricted shares; or (Bii) an if such Change of Control Termination occurs more than two (2) years after the Effective Date, all forms of compensation referred to in Sections 3(a) through 3(g) and Section 3(k) above for the longer of the remainder of the Term or two and one-half (2.5) years, payable in installments in accordance with Employer's payroll cycle, including bonuses (calculated based only on the actual payout of the EPS portion of the bonus as all Employer's officers receive in a given year) but excluding ungranted stock options and restricted shares. The period of time that Employee receives compensation pursuant to clause (i) or (ii) above shall be referred to as the "Change of Control Severance Period". Moreover, all unvested shares of restricted Common Stock and stock options then held by Employee (except the Initial PBRS) shall automatically become fully vested and any and all restrictions thereon shall lapse immediately prior to the date of such Change of Control Termination. With respect to the Initial PBRS, if the Initial PBRS would otherwise be deemed to have vested pursuant to the terms set forth in Section 3(c)(iii) above, Employee will be entitled to vesting of a fraction of the Initial PBRS, the numerator of which is the amount determined by multiplying of time from the Average Cash Incentive Compensation by Effective Date until the fraction obtained by dividing date of Change of Control Termination (rounded to the nearest whole number of days employed by years) and the Company denominator of which is five (5) years. With respect to the PVRS, such shares will not continue to vest following any such Change of Control Termination, nor will they immediately become vested or exercisable immediately following any such Change of Control Termination. If required under section 409A of the Code, any payments which would otherwise be made to Employee during the first six (6) months following the date of the Change of Control Termination Year by 365, will be deferred and (C) 1.75 times the Average Cash Incentive Compensation. The amounts in this Paragraph 9(i) shall be paid to Employee in a lump sum on the first payroll date amount six (6) months following the 30th day after date of the Date Change of Control Termination if permissible together with interest at the AFR on such date; provided, however, that any payments or benefits provided under this Section 11(a) that may be considered deferred compensation under section 409A of the Code without being subject to additional tax, penalty or surcharge under but that do not exceed the Section 409A Limit (as defined in Section 7(b) above) and that qualify as separation pay under Treasury Regulation Section 1.409A-1(b)(9)(iii), may be paid within the first six (6) months following Employee's Change of the Code (it being understood that if a lump sum payment is not permissible thereunder, the amounts Control Termination under this Paragraph 9(iAgreement. Additionally, Employer will provide Employee and his family health insurance coverage, through COBRA reimbursement, until the earlier of eighteen (18) months following such Change of Control Termination and the date that Employee starts other full-time employment. Employee's right to receive the benefits described in Section 11(a) shall be paid conditioned upon Employee's executing Employer's standard release agreement in which Employee releases all claims against Employer. A Change in Control of Employer shall occur upon the same schedule happening of the earliest to occur of the following: Any "person" as set forth such term is used in Paragraph 7 above);
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than (i) Employer, (ii) you shall be entitled to accelerated vesting any trustee or other fiduciary holding securities under an employee benefit plan of any unvested portion of any time-based equity award that would have vested in the twenty-one-month period following the Date of Termination as if no termination had occurred; and
Employer, (iii) If you elect COBRA insurance coverageany corporations owned, WTAM directly will pay to you COBRA Premiums for twenty-one months following or indirectly, by the Date stockholders of TerminationEmployer in substantially the same proportions as their ownership of stock, provided that WTAM’s payment obligation shall cease upon the expiration of your rights under COBRA or if you became reemployed (iv) Xxxxxxx Xxxxxx, his wife, their lineal descendants, and eligible for group health benefits. Furthermore, the Company agrees to maintain, for a period of at least six years after your termination, directors’ and officers’ liability insurance insuring you their spouses (in your capacity so long as an officer and/or directorthey remain spouses) and other officers and directors, with a limit the estate of liability not less than the aggregate any of the respective amounts set forth foregoing persons, and any partnership, trust, corporation or other entity to the extent shares of common stock (or their equivalent) are considered to be beneficially owned by any of the persons or estates referred to in the policy foregoing provisions of this Section 11(c) or policies maintained any transferee thereof) becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Employer representing 33% or more of the combined voting power of Employer's then outstanding voting securities. Individuals constituting the Board of Directors on the Effective Date and the successors of such individuals ("Continuing Directors') cease to constitute a majority of the Board of Directors. For this purpose, a director shall be a successor if and only if he or she was nominated by a Board of Directors (or a Nominating Committee thereof) on which individuals constituting the Company Board of Directors on the Effective Date and their successors (determined by prior application of this sentence) constituted a majority. The stockholders of Employer approve a plan of merger or consolidation ("Combination") with any other corporation or legal person, other than a Combination which would result in stockholders of Employer immediately prior to such Combination owning, immediately thereafter, more than sixty-five percent (65%) of the combined voting power of either the surviving entity or the entity owning directly or indirectly all of the common stock, or its equivalent, of the surviving entity; provided, however, that if stockholder approval is not required for such Combination, the Change in Control shall occur upon the consummation of Controlsuch Combination. Notwithstanding The stockholders of Employer approve a plan of complete liquidation of Employer or an agreement for the foregoingsale or disposition by Employer of all or substantially all of Employer's stock and/or assets, or accept a tender offer for substantially all of Employer's stock (or any transaction having a similar effect); provided, however, that if you breach any of the provisions contained in Paragraph 4, all payments under this Paragraph 9 shall immediately cease, but you shall be entitled to retain any payments made to you prior to any breach by you of the provisions of Paragraph 4. However, if you shall breach the provisions of Paragraph 4(c)stockholder approval is not required for such transaction, the Company Change in Control shall be entitled to recover from you a pro-rata portion occur upon consummation of the payments made to you under this Paragraph 9 that corresponds to the proportionate period of time that you were in breach of Paragraph 4(c). If you initiate or otherwise participate in any arbitration proceeding against the Company to enforce the rights and entitlements granted to you pursuant to this Paragraph 9 and you substantially prevail in such a proceeding, you shall be entitled to recover from the Company all of your costs of enforcement, including reasonable attorney’s fees and expensestransaction.
Appears in 1 contract
Samples: Employment Agreement (Choice Hotels International Inc /De)
Change of Control Severance. The provisions In addition to the rights of the Executive under the Company’s employee benefit plans (paragraph C of Section 3 above) but in lieu of any severance payment under paragraph F of this Paragraph 9 shall apply in lieu of, and expressly supersede, the provisions of Paragraph 7 regarding severance pay and benefits upon a termination of employmentSection 4 above, if such termination of employment occurs within eighteen months after the occurrence of there is a Change in Control of Control the Company (as defined below). Upon a Post-Change of Control Termination, ) during the Term and provided you within six (I6) enter into, do not revoke, and comply with months thereafter the Release and (II) you comply with the Twelve-Month Restrictive Covenant (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary employment of the Date of Termination), WTAM will pay, in the manner set forth below, as severance to you (Executive is concurrently or in the case of your subsequent death, the legal representative of your estate or such other person or persons as you shall have designated by written notice to WTAM):
subsequently terminated (i) by the sum Company without cause, (ii) by the expiration of the Term, or (iii) by the resignation of the Executive because he has reasonably determined in good faith that his titles, authorities, responsibilities, salary, bonus opportunities or benefits have been materially diminished, that a material adverse change in his working conditions has occurred, or the Company has breached this Agreement (clause (iii) of the first paragraph of this Section 4(G) shall mean “Good Reason”), the Company shall pay the Executive, as a severance payment, at the time of such termination, in an amount equal to (A) 1.75 times the Annual Executive’s Base Salary; , as in effect at the time of such termination, during the Severance Period as if the Executive had not been terminated and remained an employee of the Company through the expiration of such period, (B) a bonus equal to one (1) year of Base Salary (as in effect on the date of termination) plus an amount determined by multiplying the Average Cash Incentive Compensation by the fraction obtained by dividing the number additional two months of days employed by Base Salary for every fully completed year of Executive’s service to the Company payable in equal bi-monthly installments during the Termination Year by 365Severance Period, and one (1) year of Bonus (as maximum allowable in effect on the date of termination) plus an additional two months of prorated bonus for every fully completed year of Executive’s service to the Company payable in equal bi-monthly installments during the Severance Period, and (C) 1.75 times without duplication to (B), the Average Cash Incentive Compensationunpaid bonus, if any, for the year in which the termination occurs, prorated to the date of termination of Executive’s employment, to be paid at the time the Company pays bonuses to other senior executives of the Company. The amounts in this Paragraph 9(i) Company shall be paid in a lump sum on promptly reimburse the first payroll date following Executive for the 30th day after the Date amount of Termination if permissible under Section 409A any expenses incurred prior to such termination of the Code without being subject to additional tax, penalty or surcharge Executive as required under paragraph F of Section 409A of the Code (it being understood that if a lump sum payment is not permissible thereunder, the amounts under this Paragraph 9(i) shall be paid in the same schedule as set forth in Paragraph 7 3 above);
(ii) you shall be entitled to accelerated vesting of any unvested portion of any time-based equity award that would have vested in the twenty-one-month period following the Date of Termination as if no termination had occurred; and
(iii) If you elect COBRA insurance coverage, WTAM directly will pay to you COBRA Premiums for twenty-one months following the Date of Termination, provided that WTAM’s payment obligation shall cease upon the expiration of your rights under COBRA or if you became reemployed and eligible for group health benefits. Furthermore, the Company agrees to maintain, for a period of at least six years after your termination, directors’ and officers’ liability insurance insuring you (in your capacity as an officer and/or director) and other officers and directors, with a limit of liability not less than the aggregate of the respective amounts set forth in the policy or policies maintained by the Company immediately prior to the Change of Control. Notwithstanding the foregoing, if you breach any before the Executive may resign pursuant to clause (iii) of this paragraph, the Executive shall deliver to the Company a written notice of the provisions contained Executive’s intent to terminate his employment thereunder, and the Company shall have been given a reasonable opportunity to cure any such act, omission or condition within thirty (30) days after the Company’s receipt of such notice. For the purpose of this Agreement, a Change in Paragraph 4Control of the Company has occurred when: (a) any person (defined for the purposes of this paragraph G to mean any person within the meaning of Section 13(d) of the Exchange Act), other than Navidea, an employee benefit plan created by its Board of Directors for the benefit of its employees, or a participant in a transaction approved by its Board for the principal purpose of raising additional capital, either directly or indirectly, or an Affiliate of such participant, acquires beneficial ownership (determined under Rule 13d-3 of the regulations promulgated under Section 13(d) of the Exchange Act) of securities issued by Navidea having thirty percent (30%) or more of the voting power of all payments the voting securities issued by Navidea in the election of directors at the next meeting of the holders of voting securities to be held for such purpose; (b) a majority of the directors elected at any meeting of the holders of voting securities of Navidea are persons who were not nominated for such election by the Board or a duly constituted committee of the Board having authority in such matters; (c) the stockholders of Navidea approve a merger or consolidation of Navidea with another person other than a merger or consolidation in which the holders of Navidea’s voting securities issued and outstanding immediately before such merger or consolidation continue to hold voting securities in the surviving or resulting corporation (in the same relative proportions to each other as existed before such event) comprising eighty percent (80%) or more of the voting power for all purposes of the surviving or resulting corporation; or (d) the stockholders of Navidea approve a transfer of substantially all of the assets of Navidea to another person other than: (i) a transfer to a transferee, eighty percent (80%) or more of the voting power of which is owned or controlled by Navidea or by the holders of Navidea’s voting securities issued and outstanding immediately before such transfer in the same relative proportions to each other as existed before such event, or (ii) a transfer following which Navidea continues the operation of one or more lines of business that were operated by Navidea prior to the transfer, and a class of Navidea’s common stock remains registered under this Paragraph 9 shall immediately ceaseSection 12 of the Exchange Act. The Parties agree that for the purpose of determining the time when a Change of Control has occurred that if any transaction results from a definite proposal that was made before the end of the Term but which continued until after the end of the Term and such transaction is consummated after the end of the Term, but you such transaction shall be entitled deemed to retain any payments have occurred when the definite proposal was made to you prior to any breach by you for the purposes of the provisions first sentence of Paragraph this paragraph G of Section 4. HoweverNotwithstanding the foregoing, if you shall breach before the provisions Executive may resign pursuant to clause (iii) of Paragraph 4(cthe first paragraph of this Section 4(G), the Executive shall deliver to the Company a written notice of the Executive’s intent to terminate his employment thereunder, and the Company shall be entitled have been given a reasonable opportunity to recover from you a pro-rata portion cure any such act, omission or condition within thirty (30) days after the Company’s receipt of the payments made to you under this Paragraph 9 that corresponds to the proportionate period of time that you were in breach of Paragraph 4(c). If you initiate or otherwise participate in any arbitration proceeding against the Company to enforce the rights and entitlements granted to you pursuant to this Paragraph 9 and you substantially prevail in such a proceeding, you shall be entitled to recover from the Company all of your costs of enforcement, including reasonable attorney’s fees and expensesnotice.
Appears in 1 contract
Samples: Employment Agreement (Navidea Biopharmaceuticals, Inc.)
Change of Control Severance. The provisions of this Paragraph 9 shall apply in lieu ofIf the Executive’s employment is terminated by the Company due to Disability pursuant to Section 9(b), by the Company without Cause pursuant to Section 9(e) or by the Executive for Good Reason pursuant to Section 9(d) and expressly supersede, the provisions of Paragraph 7 regarding severance pay and benefits upon a termination of employment, if such termination occurs during the period beginning on the Change of employment occurs within eighteen Control and ending twelve (12) months after the occurrence of a immediately following such Change of Control (the “COC Period”), provided that the Executive signs and does not revoke a general release of claims against the Company within the time period specified therein (which time period shall not exceed sixty (60) days), in form and substance satisfactory to the Company (the “Release”), then the Company shall provide the following benefits to the Executive, referred to herein as defined below). Upon a Post-the “Change of Control Termination, and provided you (I) enter into, do not revoke, and comply with the Release and (II) you comply with the Twelve-Month Restrictive Covenant (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary of the Date of Termination), WTAM will pay, in the manner set forth below, as severance to you (or in the case of your subsequent death, the legal representative of your estate or such other person or persons as you shall have designated by written notice to WTAM):
Separation Benefits”: (i) a lump sum payment equal to eighteen (18) months of the sum Executive’s then-current Base Salary (less applicable taxes and withholdings); (ii) the full Annual Performance Bonus for the year in which such termination occurs multiplied by 1.5, less any installments paid in advance (and less applicable taxes and withholdings) (items (i) and (ii) being the “Change of Control Separation Pay”); (iii) immediate vesting in full of all Equity Awards; (iv) extension of the exercise period for all vested Stock Options to the end of their term; and (v) if the Executive properly and timely elects to continue his health insurance benefits under COBRA or applicable state continuation coverage after the termination date, reimbursement for the portion of Executive’s health continuation coverage premiums that the Company would have paid had the Executive remained employed by the Company until the earlier of (A) 1.75 times the Annual Base Salary; eighteen (18) month period following the month in which the Executive’s termination date occurs, or (B) an amount determined the maximum period permitted by multiplying applicable law, provided that the Average Cash Incentive Compensation by Company’s obligation to pay a portion of the fraction obtained by dividing the number of days employed by the Company Executive’s health continuation coverage premiums will terminate if he becomes eligible for health insurance benefits from another employer during the Termination Year by 365, and (C) 1.75 times the Average Cash Incentive Compensationreimbursement period. The amounts in this Paragraph 9(i) shall Change of Control Separation Pay will be paid within sixty (60) days after the termination date; provided, however, that if the 60-day period begins in one calendar year and ends in a lump sum on second calendar year, such payments, to the first payroll date following extent they qualify as “non-qualified deferred compensation” within the 30th day after the Date meaning of Termination if permissible under Section 409A of the Code without being subject to additional taxCode, penalty or surcharge under Section 409A of the Code (it being understood that if a lump sum payment is not permissible thereunder, the amounts under this Paragraph 9(i) shall be paid no earlier than the first Company payroll date in the same schedule as set forth second calendar year and, in Paragraph 7 above);
(ii) you shall be entitled to accelerated vesting of any unvested portion of any time-based equity award that would have vested in the twenty-one-month period following the Date of Termination as if no termination had occurred; and
(iii) If you elect COBRA insurance coveragecase, WTAM directly will pay to you COBRA Premiums for twenty-one months following the Date of Termination, provided that WTAM’s payment obligation shall cease upon the expiration of your rights under COBRA or if you became reemployed and eligible for group health benefits. Furthermore, the Company agrees to maintain, for a period of at least six years after your termination, directors’ and officers’ liability insurance insuring you (in your capacity as an officer and/or director) and other officers and directors, with a limit of liability not less than the aggregate of the respective amounts set forth in the policy or policies maintained by the Company immediately prior to the Change last day of Control. Notwithstanding the foregoing, if you breach any of the provisions contained in Paragraph 4, all payments under this Paragraph 9 shall immediately cease, but you shall be entitled to retain any payments made to you prior to any breach by you of the provisions of Paragraph 4. However, if you shall breach the provisions of Paragraph 4(c), the Company shall be entitled to recover from you a prosuch 60-rata portion of the payments made to you under this Paragraph 9 that corresponds to the proportionate period of time that you were in breach of Paragraph 4(c). If you initiate or otherwise participate in any arbitration proceeding against the Company to enforce the rights and entitlements granted to you pursuant to this Paragraph 9 and you substantially prevail in such a proceeding, you shall be entitled to recover from the Company all of your costs of enforcement, including reasonable attorney’s fees and expensesday period.”
Appears in 1 contract
Change of Control Severance. The provisions of this Paragraph 9 shall apply in lieu of, and expressly supersede, the provisions of Paragraph 7 regarding severance pay and benefits upon a termination of employment, if such termination of employment occurs If within eighteen twelve (12) months after the occurrence of a Change of Control (as defined below). Upon a Post-Change of Control Terminationthe Company, and provided you (I) enter into, do not revoke, and comply the Company terminates Executive’s employment with the Release and (II) you comply Company for reasons other than Cause, death, or Disability or Executive resigns from his employment with the Twelve-Month Restrictive Covenant (provided that you shall not Company, Executive will be obligated entitled to comply with the Twelve-Month Restrictive Covenant following the one year anniversary of the Date of Termination), WTAM will pay, in the manner set forth below, as severance to you (or in the case of your subsequent death, the legal representative of your estate or such other person or persons as you shall have designated by written notice to WTAM):receive:
(i) continuing payments of severance pay (less applicable tax withholding) at the sum of (A) 1.75 times the Annual Base Salary; (B) an amount determined by multiplying the Average Cash Incentive Compensation Salary rate multiplied by the fraction obtained by dividing percentage of Executive’s total business days that were worked in the number United States in the most recently completed fiscal year, as then in effect, for a period of days employed by the Company during twelve (12) months from the Termination Year by 365Date, and (C) 1.75 times payable in accordance with the Average Cash Incentive Compensation. The amounts in this Paragraph 9(i) shall be paid in a lump sum on the first Company’s normal payroll date following the 30th day after the Date of Termination if permissible under Section 409A of the Code without being subject to additional tax, penalty or surcharge under Section 409A of the Code (it being understood that if a lump sum payment is not permissible thereunder, the amounts under this Paragraph 9(i) shall be paid in the same schedule as set forth in Paragraph 7 above)policies;
(ii) you vesting as of the Termination Date of all unvested options granted to Executive in the event that the Company terminates Executive's employment under the circumstances described in Section 6(b) or in the event that Executive resigns from his employment with the Company due to a Constructive Termination within 12 months of a Change of Control; or vesting as of the Termination Date of fifty percent (50%) of the unvested options granted to Executive, in the event that Executive resigns from his employment as described in Section 6(b);
(iii) Extension of the exercise period enabling Executive to exercise his options through the first anniversary of the Termination Date; notwithstanding, in no case shall the exercise period be entitled extended beyond the maximum term of the options. Additionally, the exercise period of the options may not be extended beyond the later to accelerated vesting occur of any unvested portion (x) the fifteenth day of any time-based equity award that the third month after the options would have vested in otherwise expired due to termination of Executive's employment, or (y) the twenty-one-month period following end of the Date calendar year during which the options would have otherwise expired due to termination of Termination as if no termination had occurredExecutive's employment; and
(iiiiv) If you elect COBRA insurance coverageCompany-paid continuation for Executive and his eligible dependents under the Company’s group medical, WTAM directly will pay to you COBRA Premiums dental and vision plans as in effect for twenty-one Executive on the day immediately preceding the Termination Date until the earlier of twelve (12) months following the Termination Date of Termination, provided that WTAM’s payment obligation shall cease upon or the expiration of your rights under COBRA or if you became reemployed and date Executive becomes eligible for substantially similar coverage under another employer’s group health benefits. Furthermoremedical, the Company agrees to maintaindental, for a period of at least six years after your termination, directors’ and officers’ liability insurance insuring you (in your capacity as an officer and/or director) and other officers and directors, with a limit of liability not less than the aggregate of the respective amounts set forth in the policy or policies maintained by the Company immediately prior to the Change of Control. Notwithstanding the foregoing, if you breach any of the provisions contained in Paragraph 4, all payments under this Paragraph 9 shall immediately cease, but you shall be entitled to retain any payments made to you prior to any breach by you of the provisions of Paragraph 4. However, if you shall breach the provisions of Paragraph 4(c), the Company shall be entitled to recover from you a pro-rata portion of the payments made to you under this Paragraph 9 that corresponds to the proportionate period of time that you were in breach of Paragraph 4(c). If you initiate or otherwise participate in any arbitration proceeding against the Company to enforce the rights and entitlements granted to you pursuant to this Paragraph 9 and you substantially prevail in such a proceeding, you shall be entitled to recover from the Company all of your costs of enforcement, including reasonable attorney’s fees and expensesvision plans.
Appears in 1 contract
Samples: Employment Agreement (Wintegra Inc)
Change of Control Severance. The provisions If there is a Change in Control of this Paragraph 9 the Company (as defined below) during the Term and the employment of the Executive is concurrently or subsequently terminated prior to the end of the Term by the Company due to Change in Control, the Company shall apply in lieu ofpay the Executive, as a severance payment related to the Change of Control (the “Change of Control Severance”), at the time of the termination, the amount of Four Hundred Twenty Thousand Dollars ($420,000) together with the value of any accrued but unused Vacation Time, and expressly supersedethe amount of all accrued but previously unpaid Base Salary through the date of termination set forth herein paragraph H; and shall provide him with all Benefits for the longer of twelve (12) months or the full unexpired Term. Such payments shall be made in the same intervals as the Executives salary is paid. The Company shall promptly reimburse the Executive for the amount of any Expenses incurred by the Executive prior to the termination set forth herein paragraph H; provided, however, in the event that a benefit plan, Stock Plan or award agreement which covers the Executive has specific provisions of Paragraph 7 regarding severance pay and benefits upon a concerning termination of employment, or the death or disability of an employee (e.g., life insurance or disability insurance), then such benefit plan, Stock Plan or award agreement shall control the disposition of the benefits or stock options. In no event shall the Executive be entitled to any Severance Payment pursuant to Section 4(G) above if such termination of employment occurs within eighteen months after the occurrence of a Executive is paid the Change of Control (as defined below). Upon a Post-Change of Control Termination, and provided you (I) enter into, do not revoke, and comply with the Release and (II) you comply with the Twelve-Month Restrictive Covenant (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary of the Date of Termination), WTAM will pay, in the manner set forth below, as severance to you (or in the case of your subsequent death, the legal representative of your estate or such other person or persons as you shall have designated by written notice to WTAM):
(i) the sum of (A) 1.75 times the Annual Base Salary; (B) an amount determined by multiplying the Average Cash Incentive Compensation by the fraction obtained by dividing the number of days employed by the Company during the Termination Year by 365, and (C) 1.75 times the Average Cash Incentive Compensation. The amounts in this Paragraph 9(i) shall be paid in a lump sum on the first payroll date following the 30th day after the Date of Termination if permissible under Section 409A of the Code without being subject to additional tax, penalty or surcharge under Section 409A of the Code (it being understood that if a lump sum payment is not permissible thereunder, the amounts under this Paragraph 9(i) shall be paid in the same schedule as set forth in Paragraph 7 above);
(ii) you shall be entitled to accelerated vesting of any unvested portion of any time-based equity award that would have vested in the twenty-one-month period following the Date of Termination as if no termination had occurred; and
(iii) If you elect COBRA insurance coverage, WTAM directly will pay to you COBRA Premiums for twenty-one months following the Date of Termination, provided that WTAM’s payment obligation shall cease upon the expiration of your rights under COBRA or if you became reemployed and eligible for group health benefits. Furthermore, the Company agrees to maintain, for a period of at least six years after your termination, directors’ and officers’ liability insurance insuring you (in your capacity as an officer and/or director) and other officers and directors, with a limit of liability not less than the aggregate of the respective amounts set forth in the policy or policies maintained by the Company immediately prior to the Change of ControlSeverance. Notwithstanding the foregoing, if you breach any all of the provisions contained in Paragraph 4, all payments under this Paragraph 9 Executive’s then outstanding and unvested share options and any other equity awards shall immediately ceaseaccelerate and become 100% vested and exercisable, but you and the Executive will have until the original expiration date of the option to exercise any share option then held by the Executive; and all of the Executive’s then outstanding restricted stock shall no longer be entitled subject to retain the Company’s right of repurchase. Any severance payments hereunder will be conditioned on a release by the Executive of any payments made and all claims against the Company, which release will be in form and substance acceptable to you the Company. For the purpose of this Agreement, a Change in Control of the Company has occurred when: (i) any person (defined for the purposes of this paragraph GH to mean any person within the meaning of Section 13(d) of the Securities Exchange Act of 1934 (the “Exchange Act”)), other than: (a) Echo Therapeutics, (b) an employee benefit plan created by its Board for the benefit of its employees, (c) a participant in a transaction approved by its Board for the principal purpose of raising additional capital, either directly or indirectly, (d) any current equity owner (and its affiliates) that has reported its holdings pursuant to Section 13(d) or 13(g) of the Exchange Act, or (e) an affiliate of a participant in a transaction described in clause (c) above, acquires beneficial ownership (determined under Rule 13d-3 of the Regulations promulgated by the Securities and Exchange Commission under Section 13(d) of the Exchange Act) of securities issued by Echo Therapeutics having thirty percent (30%) or more of the voting power of all the voting securities issued by Echo Therapeutics in the election of Directors at the next meeting of the holders of voting securities to be held for such purpose; (ii) the stockholders of Echo Therapeutics approve a merger or consolidation of Echo Therapeutics with another person other than a merger or consolidation in which the holders of Echo Therapeutics voting securities issued and outstanding immediately before such merger or consolidation continue to hold voting securities in the surviving or resulting corporation (in the same relative proportions to each other as existed before such event) comprising fifty percent (50%) or more of the voting power for all purposes of the surviving or resulting corporation; or (iii) the stockholders of Echo Therapeutics approve a transfer of substantially all of the assets of Echo Therapeutics to another person other than: (a) a transfer to a transferee, eighty percent (80%) or more of the voting power of which is owned or controlled by Echo Therapeutics or by the holders of Echo Therapeutics voting securities issued and outstanding immediately before such transfer in the same relative proportions to each other as existed before such event, or (b) a transfer following which Echo Therapeutics continues the operation of one or more lines of business that were operated by Echo Therapeutics prior to any breach by you the transfer, and a class of common stock of Echo Therapeutics remains registered under Section 12 of the provisions of Paragraph 4. However, if you shall breach the provisions of Paragraph 4(c), the Company shall be entitled to recover from you a pro-rata portion of the payments made to you under this Paragraph 9 that corresponds to the proportionate period of time that you were in breach of Paragraph 4(c). If you initiate or otherwise participate in any arbitration proceeding against the Company to enforce the rights and entitlements granted to you pursuant to this Paragraph 9 and you substantially prevail in such a proceeding, you shall be entitled to recover from the Company all of your costs of enforcement, including reasonable attorney’s fees and expensesExchange Act.
Appears in 1 contract
Change of Control Severance. The provisions If there is a Change in Control of this Paragraph 9 the Company (as defined below) during the Term and the employment of the Executive is concurrently or subsequently terminated prior to the end of the Term by the Company due to Change in Control, the Company shall apply in lieu ofpay the Executive, as a severance payment related to the Change of Control (the “Change of Control Severance”), at the time of the termination, the amount of Two Hundred Sixty Thousand Dollars ($260,000.00) salary together with the value of any accrued but unused Vacation Time, and expressly supersedethe amount of all accrued but previously unpaid Base Salary through the date of termination set forth herein paragraph H; and shall provide him with all Benefits for the longer of twelve (12) months or the full unexpired Term. Such payments shall be made in the same intervals as the Executives salary is paid. The Company shall promptly reimburse the Executive for the amount of any Expenses incurred by the Executive prior to the termination set forth herein paragraph H; provided, however, in the event that a benefit plan, Stock Plan or award agreement which covers the Executive has specific provisions of Paragraph 7 regarding severance pay and benefits upon a concerning termination of employment, or the death or disability of an employee (e.g., life insurance or disability insurance), then such benefit plan, Stock Plan or award agreement shall control the disposition of the benefits or stock options. In no event shall the Executive be entitled to any Severance Payment pursuant to Section 4(G) above if such termination of employment occurs within eighteen months after the occurrence of a Executive is paid the Change of Control (as defined below). Upon a Post-Change of Control Termination, and provided you (I) enter into, do not revoke, and comply with the Release and (II) you comply with the Twelve-Month Restrictive Covenant (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary of the Date of Termination), WTAM will pay, in the manner set forth below, as severance to you (or in the case of your subsequent death, the legal representative of your estate or such other person or persons as you shall have designated by written notice to WTAM):
(i) the sum of (A) 1.75 times the Annual Base Salary; (B) an amount determined by multiplying the Average Cash Incentive Compensation by the fraction obtained by dividing the number of days employed by the Company during the Termination Year by 365, and (C) 1.75 times the Average Cash Incentive Compensation. The amounts in this Paragraph 9(i) shall be paid in a lump sum on the first payroll date following the 30th day after the Date of Termination if permissible under Section 409A of the Code without being subject to additional tax, penalty or surcharge under Section 409A of the Code (it being understood that if a lump sum payment is not permissible thereunder, the amounts under this Paragraph 9(i) shall be paid in the same schedule as set forth in Paragraph 7 above);
(ii) you shall be entitled to accelerated vesting of any unvested portion of any time-based equity award that would have vested in the twenty-one-month period following the Date of Termination as if no termination had occurred; and
(iii) If you elect COBRA insurance coverage, WTAM directly will pay to you COBRA Premiums for twenty-one months following the Date of Termination, provided that WTAM’s payment obligation shall cease upon the expiration of your rights under COBRA or if you became reemployed and eligible for group health benefits. Furthermore, the Company agrees to maintain, for a period of at least six years after your termination, directors’ and officers’ liability insurance insuring you (in your capacity as an officer and/or director) and other officers and directors, with a limit of liability not less than the aggregate of the respective amounts set forth in the policy or policies maintained by the Company immediately prior to the Change of ControlSeverance. Notwithstanding the foregoing, if you breach any all of the provisions contained in Paragraph 4, all payments under this Paragraph 9 Executive’s then outstanding and unvested share options and any other equity awards shall immediately ceaseaccelerate and become 100% vested and exercisable, but you and the Executive will have until the original expiration date of the option to exercise any share option then held by the Executive; and all of the Executive’s then outstanding restricted stock shall no longer be entitled subject to retain the Company’s right of repurchase. Any severance payments hereunder will be conditioned on a release by the Executive of any payments made and all claims against the Company, which release will be in form and substance acceptable to you the Company. For the purpose of this Agreement, a Change in Control of the Company has occurred when: (i) any person (defined for the purposes of this paragraph H to mean any person within the meaning of Section 13(d) of the Securities Exchange Act of 1934 (the “Exchange Act”)), other than: (a) Echo Therapeutics, (b) an employee benefit plan created by its Board for the benefit of its employees, (c) a participant in a transaction approved by its Board for the principal purpose of raising additional capital, either directly or indirectly, (d) any current equity owner (and its affiliates) that has reported its holdings pursuant to Section 13(d) or 13(g) of the Exchange Act, or (e) an affiliate of a participant in a transaction described in clause (c) above, acquires beneficial ownership (determined under Rule 13d-3 of the Regulations promulgated by the Securities and Exchange Commission under Section 13(d) of the Exchange Act) of securities issued by Echo Therapeutics having thirty percent (30%) or more of the voting power of all the voting securities issued by Echo Therapeutics in the election of Directors at the next meeting of the holders of voting securities to be held for such purpose; (ii) the stockholders of Echo Therapeutics approve a merger or consolidation of Echo Therapeutics with another person other than a merger or consolidation in which the holders of Echo Therapeutics voting securities issued and outstanding immediately before such merger or consolidation continue to hold voting securities in the surviving or resulting corporation (in the same relative proportions to each other as existed before such event) comprising fifty percent (50%) or more of the voting power for all purposes of the surviving or resulting corporation; or (iii) the stockholders of Echo Therapeutics approve a transfer of substantially all of the assets of Echo Therapeutics to another person other than: (a) a transfer to a transferee, eighty percent (80%) or more of the voting power of which is owned or controlled by Echo Therapeutics or by the holders of Echo Therapeutics voting securities issued and outstanding immediately before such transfer in the same relative proportions to each other as existed before such event, or (b) a transfer following which Echo Therapeutics continues the operation of one or more lines of business that were operated by Echo Therapeutics prior to any breach by you the transfer, and a class of common stock of Echo Therapeutics remains registered under Section 12 of the provisions of Paragraph 4. However, if you shall breach the provisions of Paragraph 4(c), the Company shall be entitled to recover from you a pro-rata portion of the payments made to you under this Paragraph 9 that corresponds to the proportionate period of time that you were in breach of Paragraph 4(c). If you initiate or otherwise participate in any arbitration proceeding against the Company to enforce the rights and entitlements granted to you pursuant to this Paragraph 9 and you substantially prevail in such a proceeding, you shall be entitled to recover from the Company all of your costs of enforcement, including reasonable attorney’s fees and expensesExchange Act.
Appears in 1 contract
Change of Control Severance. The provisions (a) In the event of this Paragraph 9 shall apply Executive’s Severance in lieu of, and expressly supersede, the provisions of Paragraph 7 regarding severance pay and benefits upon a termination of employment, if such termination of employment occurs within eighteen months after the occurrence of connection with a Change of Control (as defined below). Upon a Post-Change of Control Termination, and provided you (I) enter into, do not revoke, and comply with during the Release and (II) you comply with the Twelve-Month Restrictive Covenant (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary of the Date of Termination), WTAM will payTerm, in the manner set forth below, as severance to you (or in the case consideration of your subsequent death, the legal representative of your estate or such other person or persons as you shall have designated by written notice to WTAM):
(i) the sum of (A) 1.75 times the Annual Base Salary; (B) an amount determined by multiplying the Average Cash Incentive Compensation by the fraction obtained by dividing the number of days employed by the Company during the Termination Year by 365, and (C) 1.75 times the Average Cash Incentive Compensation. The amounts in this Paragraph 9(i) shall be paid in a lump sum on the first payroll date following the 30th day after the Date of Termination if permissible Executive’s obligations under Section 409A of the Code without being subject to additional tax, penalty or surcharge under Section 409A of the Code 5 (it being understood that if a lump sum payment is not permissible thereunder, the amounts under this Paragraph 9(i) shall be paid in the same schedule as set forth in Paragraph 7 above);
(ii) you shall be entitled to accelerated vesting of any unvested portion of any timeNon-based equity award that would have vested in the twenty-one-month period following the Date of Termination as if no termination had occurred; and
(iii) If you elect COBRA insurance coverage, WTAM directly will pay to you COBRA Premiums for twenty-one months following the Date of Termination, provided that WTAM’s payment obligation shall cease upon the expiration of your rights under COBRA or if you became reemployed and eligible for group health benefits. Furthermore, the Company agrees to maintain, for a period of at least six years after your termination, directors’ and officers’ liability insurance insuring you (in your capacity as an officer and/or director) and other officers and directors, with a limit of liability not less than the aggregate of the respective amounts set forth in the policy or policies maintained by the Company immediately prior to the Change of Control. Notwithstanding the foregoing, if you breach any of the provisions contained in Paragraph 4, all payments under this Paragraph 9 shall immediately cease, but you shall be entitled to retain any payments made to you prior to any breach by you of the provisions of Paragraph 4. However, if you shall breach the provisions of Paragraph 4(cCompete), the Company shall provide to Executive:
(1) all salary and other compensation earned by Executive through the date of Severance at the rate in effect immediately prior to such Termination;
(2) reimbursement of all reasonable, ordinary and necessary travel, entertainment and other business related expenses incurred by Executive (in accordance with the policies and procedures established by the Company from time to time) in the performance of Executive’s duties and responsibilities; provided, however, that Executive shall properly account for such expenses in accordance with federal, state and local tax requirements and the Company’s policies and procedures; and provided, further, that in the case of taxable reimbursements or in-kind benefits that are subject to Section 409A: such reimbursements or in-kind benefits shall be pursuant to an objectively determinable nondiscretionary definition of expenses eligible for reimbursement or the in-kind benefits to be provided; the amount of such expenses that are eligible for reimbursement, or in-kind benefits provided, during Executive’s taxable year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year; the reimbursement must be paid to Executive promptly following Executive’s submission of the expense report, but no later than the last day of Executive’s taxable year following the taxable year in which the expense was incurred; and the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit;
(3) any earned, accrued and unpaid bonus under the Bonus Plan for a prior completed fiscal year;
(4) a bonus under the Bonus Plan for the year in which such Severance occurs based on actual results for the year, but prorated based on days of employment during the year;
(5) all other amounts that Executive is entitled to recover from you receive under any compensation plan (including but not limited to vacation policy ) maintained by the Company, subject to any distribution requirements contained therein;
(6) a procash severance payment equal to (___) times the sum of Executive’s base salary in effect immediately prior to such Change of Control plus the amount of Target Bonus with respect to the year in which such Change of Control occurred;
(7) if Executive’s Severance in connection with a Change of Control occurs after the expiration of twelve (12) months but prior to the expiration of twenty-rata portion four (24) months following said Change of Control, a cash payment equal to the fair market value of all shares of restricted stock (or other property or rights into which such restricted stock has been converted) issued to Executive prior to such Severance that, as of the moment just prior to Executive’s Severance, have neither vested to Executive nor been forfeited pursuant to the terms of the 2005 Stock Incentive Plan or the restricted stock agreement pertaining to said shares;
(8) group health plan (including vision and dental if offered by the Company to its active executive officers) coverage for Executive, his spouse, and dependents until the earlier of (i) (___) months after the date of such Severance, or (ii) the date Executive obtains coverage under a subsequent employer’s group health plan; and
(9) the title to the Company vehicle provided by the Company for Executive’s personal use and in use by Executive immediately prior to a Change of Control. The payments described in Section 3(a), subsections (1) through (7) and (9), shall be made as soon as practicable following Executive’s Severance.
(b) All cash amounts that are not to be paid within sixty (60) days after Executive’s Severance under Subsection (a) shall within sixty (60) days after Executive’s Severance be placed in escrow pursuant to an escrow agreement among the Company, Executive and an independent escrow agent selected by mutual agreement of the Company and Executive, which agreement will provide for an unconditional release of funds from escrow to pay Executive when required by this Agreement, subject to Subsection 3(e) below, and which funds may not be otherwise released from escrow, except that the funds will be subject to the claims of the Company’s general creditors under federal and state law in the event the Company is unable to pay its debts as they become due or the Company is subject to a pending proceeding as a debtor under the United States Bankruptcy Code.
(c) The Company shall provide the group health plan coverage pursuant to Subsection (a) to Executive on the same terms and conditions and at the same cost as it provides coverage to similarly situated active executive officers of the Company. If Executive dies during the period that he is entitled to coverage hereunder, his spouse and minor dependents shall be permitted to continue coverage on the same basis as if Executive had survived.
(d) Notwithstanding anything contained in this Agreement to the contrary, if Executive is a “specified employee,” as determined under the Company’s policy for determining specified employees on the date of Severance, all payments, benefits or reimbursements paid or provided under this Agreement that constitute a “deferral of compensation” within the meaning of Section 409A, that are provided as a result of a “separation from service” within the meaning of Section 409A and that would otherwise be paid or provided during the first six months following such date of Severance shall be accumulated through and paid or provided (together with interest at the applicable Federal short-term rate, compounded semi-annually, in effect under Section 1274(d) of the Internal Revenue Code as of the date of Severance) within 30 calendar days after the first business day following the six month anniversary of such date of Severance (or, if Executive dies during such six-month period, within 10 calendar days after Executive’s death). It is intended that the payments and benefits provided under this Agreement shall either be exempt from the application of, or comply with, the requirements of Section 409A. This Agreement shall be construed, administered, and governed in a manner that effects such intent, and the Corporation shall not take any action that would be inconsistent with such intent. Without limiting the foregoing, the payments and benefits provided under this Agreement may not be deferred, accelerated, extended, paid out or modified in a manner that would result in the imposition of an additional tax under Section 409A upon Executive. Although the Company shall use its best efforts to avoid the imposition of taxation, interest and penalties under Section 409A, the tax treatment of the benefits provided under this Agreement is not warranted or guaranteed. Neither the Company, its subsidiaries nor their respective directors, officers, employees or advisors shall be held liable for any taxes, interest, penalties or other monetary amounts owed by Executive or other taxpayer as a result of the Agreement.
(e) All payments made to you Executive under this Paragraph 9 that corresponds Section 3 shall be reduced by amounts (i) required to be withheld in accordance with federal, state and local laws and regulations in effect at the time of payment, or (ii) owed to the proportionate period of time that you were in breach of Paragraph 4(c). If you initiate Company by Executive for any amounts advanced, loaned or otherwise participate in any arbitration proceeding against the Company to enforce the rights and entitlements granted to you pursuant to this Paragraph 9 and you substantially prevail in such a proceeding, you shall be entitled to recover from the Company all of your costs of enforcement, including reasonable attorney’s fees and expensesmisappropriated.
Appears in 1 contract
Samples: Change of Control Agreement (Iowa Telecommunications Services Inc)
Change of Control Severance. The provisions of this Paragraph 9 shall apply in lieu of, and expressly supersede, the provisions of Paragraph 7 regarding severance pay and benefits We recognize that upon a termination of employment, if such termination of employment occurs within eighteen months after the occurrence of a Change of Control (as defined below). Upon Control, it is appropriate to provide you with protection if your employment is involuntarily terminated without cause and/or you are constructively terminated following such a Post-Change of Control Control. Accordingly, if within twelve (12) months following a Change of Control, your employment is involuntary terminated without Cause or your employment is ‘constructively terminated’ and you choose to resign within a reasonable period of time following such Constructive Termination, then, subject to the terms and provided you (I) enter into, do not revoke, and comply with the Release and (II) you comply with the Twelve-Month Restrictive Covenant (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary of the Date of Termination), WTAM will pay, in the manner conditions set forth belowin Exhibit B, as upon such involuntary termination without Cause or resignation within a reasonable period of time following Constructive Termination, you will be entitled to the following severance to you (or in the case of your subsequent death, the legal representative of your estate or such other person or persons as you shall have designated by written notice to WTAM):
(i) the sum of (A) 1.75 times the Annual Base Salary; (B) an amount determined by multiplying the Average Cash Incentive Compensation by the fraction obtained by dividing the number of days employed by the Company during the Termination Year by 365, payments and (C) 1.75 times the Average Cash Incentive Compensation. The amounts in this Paragraph 9(i) shall be paid in a lump sum on the first payroll date following the 30th day after the Date of Termination if permissible under Section 409A of the Code without being subject to additional tax, penalty or surcharge under Section 409A of the Code (it being understood that if benefits: a lump sum payment is not permissible thereunder, the amounts under this Paragraph 9(iequal to twelve (12) shall be paid in the same schedule as set forth in Paragraph 7 above);
(ii) you shall be entitled to accelerated vesting of any unvested portion of any time-based equity award that would have vested in the twenty-one-month period following the Date of Termination as if no termination had occurred; and
(iii) If you elect COBRA insurance coverage, WTAM directly will pay to you COBRA Premiums for twenty-one months following the Date of Termination, provided that WTAM’s payment obligation shall cease upon the expiration of your rights under COBRA or if you became reemployed and eligible for group health benefits. Furthermore, base salary at the Company agrees to maintain, for a period rate in effect on the date of at least six years after your termination, directors’ and officers’ liability insurance insuring you (or, if greater, the rate in your capacity as an officer and/or director) and other officers and directors, with a limit of liability not less than the aggregate of the respective amounts set forth in the policy or policies maintained by the Company effect immediately prior to the Change of Control. Notwithstanding ; a lump sum payment equal to your annual target bonus (corporate and individual performance components at 100% of annual target) for the foregoingyear of termination, or, if greater, your annual target bonus in effect immediately prior to the Change of Control; if you breach any timely elect continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) for you, your spouse and eligible dependants, as applicable, the Company will pay directly on your behalf the monthly premiums under COBRA for such coverage until the earliest of (A) twelve (12) months following the effective date of such termination, or (B) the date upon which you begin other employment that provides for health coverage benefits. In addition, and notwithstanding anything to the contrary in this paragraph, if the Company determines in its sole and reasonable discretion that it cannot pay directly on your behalf or reimburse you the COBRA premiums without potentially violating applicable law (including, without limitation, Section 2716 of the provisions contained in Paragraph 4, all payments under this Paragraph 9 shall immediately cease, but you shall be entitled to retain any payments made to you prior to any breach by you of the provisions of Paragraph 4. However, if you shall breach the provisions of Paragraph 4(cPublic Health Service Act), the Company shall be entitled will in lieu thereof provide to recover from you a protaxable monthly payment in an amount equal to the monthly COBRA premium that you would be required to pay to continue your group health coverage in effect on the date of such termination, which payments will be made regardless of whether you elect COBRA continuation coverage. For purposes of clarification, the previous sentence does not impact your ability to elect COBRA coverage. If the Company chooses make payments under this paragraph rather than paying the COBRA premiums directly on your behalf or directly reimbursing you, the amounts paid to you will include any additional amounts necessary to put you in the same after-rata portion tax position as if the Company had made COBRA payments directly on your behalf or directly reimbursed you for the same; and immediate vesting of [ ]% of all of your outstanding equity awards (whether or not in the form of stock options, restricted stock, or any other type of equity) that remain unvested as of the payments made date of your termination. For clarification purposes, this vesting acceleration is to you under this Paragraph 9 apply to your outstanding equity awards, together with any equity awards that corresponds to the proportionate period of time that you were in breach of Paragraph 4(c). If you initiate or otherwise participate in any arbitration proceeding against the Company to enforce the rights and entitlements may be granted to you pursuant to in the future. For purposes of this Paragraph 9 offer letter, “Cause,” “Change of Control,” and you substantially prevail in such a proceeding, you shall be entitled to recover from “Constructive Termination” will have the Company all of your costs of enforcement, including reasonable attorney’s fees and expenses.meaning set forth on Exhibit A.
Appears in 1 contract
Change of Control Severance. The provisions In addition to the rights of the Employee under the Company’s employee benefit plans (paragraphs C of Section 3 above) but in lieu of any severance payment under paragraph F of this Paragraph 9 shall apply in lieu of, and expressly supersede, the provisions of Paragraph 7 regarding severance pay and benefits upon a termination of employmentSection 4 above, if such termination of employment occurs within eighteen months after the occurrence of there is a Change in Control of Control the Company (as defined below). Upon a Post-) and the employment of the Employee is concurrently or within 12 months of the Change of Control Termination, and provided you terminated (Ia) enter into, do not revoke, and comply with the Release and (II) you comply with the Twelve-Month Restrictive Covenant (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary of the Date of Termination), WTAM will pay, in the manner set forth below, as severance to you (or in the case of your subsequent death, the legal representative of your estate or such other person or persons as you shall have designated by written notice to WTAM):
(i) the sum of (A) 1.75 times the Annual Base Salary; (B) an amount determined by multiplying the Average Cash Incentive Compensation by the fraction obtained by dividing the number of days employed by the Company during the Termination Year without cause, (b) by 365, and (C) 1.75 times the Average Cash Incentive Compensation. The amounts in this Paragraph 9(i) shall be paid in a lump sum on the first payroll date following the 30th day after the Date of Termination if permissible under Section 409A of the Code without being subject to additional tax, penalty or surcharge under Section 409A of the Code (it being understood that if a lump sum payment is not permissible thereunder, the amounts under this Paragraph 9(i) shall be paid in the same schedule as set forth in Paragraph 7 above);
(ii) you shall be entitled to accelerated vesting of any unvested portion of any time-based equity award that would have vested in the twenty-one-month period following the Date of Termination as if no termination had occurred; and
(iii) If you elect COBRA insurance coverage, WTAM directly will pay to you COBRA Premiums for twenty-one months following the Date of Termination, provided that WTAM’s payment obligation shall cease upon the expiration of your rights under COBRA the Term of this Employment Agreement, or if you became reemployed and eligible for group health benefits. Furthermore(c) by the resignation of the Employee because he has reasonably determined in good faith that his titles, authorities, responsibilities, salary, bonus opportunities or benefits have been materially diminished, that a material adverse change in his working conditions has occurred, that his services are no longer required in light of the Company’s business plan, or the Company has breached this Employment Agreement, the Company agrees to maintainshall pay the Employee, for as a period severance payment, at the time of at least six years after your such termination, directors’ the amount of Four Hundred Thousand Dollars ($400,000) together with the value of any accrued but unused vacation time, and officers’ liability insurance insuring you the amount of all accrued but previously unpaid base salary through the date of termination and shall provide him with all of this benefits under paragraph C of Section 3 above for the longer of twelve (in your capacity as an officer and/or director12) and other officers and directors, with a limit months or the full un-expired Term of liability not less than this Employment Agreement. The Company shall promptly reimburse the aggregate Employee for the amount of the respective amounts set forth in the policy or policies maintained any expenses incurred prior to such termination by the Company immediately prior to the Change Employee as required under paragraph F of ControlSection 3 above. Notwithstanding the foregoing, if you breach any before the Employee may resign pursuant to Section 4(G)(c) above, the Employee shall deliver to the Company a written notice of the provisions contained in Paragraph 4, all payments under this Paragraph 9 shall immediately cease, but you shall be entitled Employee’s intent to retain any payments made terminate his employment pursuant to you prior to any breach by you of the provisions of Paragraph 4. However, if you shall breach the provisions of Paragraph 4(cSection 4(G)(c), and the Company shall be entitled have been given a reasonable opportunity to recover from you cure any such act, omission or condition within Thirty (30) days after the Company’s receipt of such notice. For the purpose of this Employment Agreement, a pro-rata portion Change in Control of the payments made Company has occurred when: (a) any person (defined for the purposes of this paragraph G to you mean any person within the meaning of Section 13 (d) of the Securities Exchange Act of 1934 (the “Exchange Act”)), other than Ohr, an employee benefit plan created by its Board of Directors for the benefit of its employees, or a participant in a transaction approved by its Board of Directors for the principal purpose of raising additional capital, either directly or indirectly, acquires beneficial ownership (determined under this Paragraph 9 that corresponds Rule 13d-3 of the Regulations promulgated by the Securities and Exchange Commission under Section 13(d) of the Exchange Act) of securities issued by Ohr having forty five percent (45%) or more of the voting power of all the voting securities issued by Ohr in the election of Directors at the next meeting of the holders of voting securities to be held for such purpose; (b) a majority of the proportionate period Directors elected at any meeting of time that you the holders of voting securities of Ohr are persons who were in breach not nominated for such election by the Board of Paragraph 4(c). If you initiate Directors or otherwise participate in any arbitration proceeding against a duly constituted committee of the Company to enforce the rights and entitlements granted to you pursuant to this Paragraph 9 and you substantially prevail Board of Directors having authority in such matters; (c) the stockholders of Ohr approve a proceedingmerger or consolidation of Ohr with another person other than a merger or consolidation in which the holders of Ohr’s voting securities issued and outstanding immediately before such merger or consolidation continue to hold voting securities in the surviving or resulting corporation (in the same relative proportions to each other as existed before such event) comprising fifty one percent (51%) or more of the voting power for all purposes of the surviving or resulting corporation; or (d) the stockholders of Ohr approve a transfer of substantially all of the assets of Ohr to another person other than a transfer to a transferee, you fifty one percent (51%) or more of the voting power of which is owned or controlled by Ohr or by the holders of Ohr’s voting securities issued and outstanding immediately before such transfer in the same relative proportions to each other as existed before such event. The parties hereto agree that for the purpose of determining the time when a Change of Control has occurred that if any transaction results from a definite proposal that was made before the end of the Term of this Employment Agreement but which continued until after the end of the Term of this Employment Agreement and such transaction is consummated after the end of the Term of this Employment Agreement, such transaction shall be entitled deemed to recover from have occurred when the Company all definite proposal was made for the purposes of your costs the first sentence of enforcement, including reasonable attorney’s fees and expensesthis paragraph G of this Section 4.
Appears in 1 contract
Change of Control Severance. The provisions of this Paragraph 9 shall apply in lieu ofIf Executive’s employment is terminated by the Company due to Disability pursuant to Section 8(b), by the Company without Cause pursuant to Section 8(e) or by the Executive for Good Reason pursuant to Section 8(d) and expressly supersede, the provisions of Paragraph 7 regarding severance pay and benefits upon a termination of employment, if such termination occurs during the period beginning on the Change of employment occurs within eighteen Control and ending twelve (12) months after the occurrence of a immediately following such Change of Control (the “COC Period”), provided that the Executive signs and does not revoke a general release of claims against the Company within the time period specified therein (which time period shall not exceed sixty (60) days), in form and substance satisfactory to the Company (the “Release”), then the Company shall provide the following benefits to the Executive, referred to herein as defined below). Upon a Post-the “Change of Control Termination, and provided you (I) enter into, do not revoke, and comply with the Release and (II) you comply with the Twelve-Month Restrictive Covenant (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary of the Date of Termination), WTAM will pay, in the manner set forth below, as severance to you (or in the case of your subsequent death, the legal representative of your estate or such other person or persons as you shall have designated by written notice to WTAM):
Separation Benefits”: (i) a lump sum payment equal to eighteen (18) months of the sum Executive’s then-current Base Salary (less applicable taxes and withholdings); (ii) the full Annual Milestone Bonus (items (i) and (ii) being the “Change of Control Separation Pay”); (iii) immediate vesting in full of all Equity Awards; (iv) extension of the exercise period for all vested Stock Options to the end of their term; and (v) if the Executive properly and timely elects to continue his health insurance benefits under COBRA or applicable state continuation coverage after the date of termination, reimbursement for the Executive’s applicable health continuation coverage premiums for the lesser of (A) 1.75 times the Annual Base Salary; eighteen (18) month period following the month in which the Executive’s termination date occurs, or (B) an amount determined the maximum period permitted by multiplying applicable law, provided that the Average Cash Incentive Compensation by Company’s obligation to pay a portion of the fraction obtained by dividing the number of days employed by the Company Executive’s health continuation coverage premiums will terminate if he becomes eligible for health insurance benefits from another employer during the Termination Year by 365, and (C) 1.75 times the Average Cash Incentive Compensationreimbursement period. The amounts in this Paragraph 9(i) shall Change of Control Separation Pay will be paid within sixty (60) days after the termination date; provided, however, that if the 60-day period begins in one calendar year and ends in a lump sum on second calendar year, such payments, to the first payroll date following extent they qualify as “non-qualified deferred compensation” within the 30th day after the Date meaning of Termination if permissible under Section 409A of the Code without being subject to additional taxCode, penalty or surcharge under Section 409A of the Code (it being understood that if a lump sum payment is not permissible thereunder, the amounts under this Paragraph 9(i) shall be paid no earlier than the first Company payroll date in the same schedule as set forth second calendar year and, in Paragraph 7 above);
(ii) you shall be entitled to accelerated vesting of any unvested portion of any time-based equity award that would have vested in the twenty-one-month period following the Date of Termination as if no termination had occurred; and
(iii) If you elect COBRA insurance coveragecase, WTAM directly will pay to you COBRA Premiums for twenty-one months following the Date of Termination, provided that WTAM’s payment obligation shall cease upon the expiration of your rights under COBRA or if you became reemployed and eligible for group health benefits. Furthermore, the Company agrees to maintain, for a period of at least six years after your termination, directors’ and officers’ liability insurance insuring you (in your capacity as an officer and/or director) and other officers and directors, with a limit of liability not less than the aggregate of the respective amounts set forth in the policy or policies maintained by the Company immediately prior to the Change last day of Control. Notwithstanding the foregoing, if you breach any of the provisions contained in Paragraph 4, all payments under this Paragraph 9 shall immediately cease, but you shall be entitled to retain any payments made to you prior to any breach by you of the provisions of Paragraph 4. However, if you shall breach the provisions of Paragraph 4(c), the Company shall be entitled to recover from you a prosuch 60-rata portion of the payments made to you under this Paragraph 9 that corresponds to the proportionate period of time that you were in breach of Paragraph 4(c). If you initiate or otherwise participate in any arbitration proceeding against the Company to enforce the rights and entitlements granted to you pursuant to this Paragraph 9 and you substantially prevail in such a proceeding, you shall be entitled to recover from the Company all of your costs of enforcement, including reasonable attorney’s fees and expensesday period.”
Appears in 1 contract
Change of Control Severance. The provisions In the event that during the term of this Paragraph 9 shall apply Agreement the Company terminates the Employee’s employment without Cause or the Employee terminates the Employee’s employment for Good Reason, in lieu of, and expressly supersede, the provisions of Paragraph 7 regarding severance pay and benefits upon a termination of employment, if such termination of employment occurs each case within eighteen months after the occurrence of two years following a Change of Control (as defined below). Upon a Post-Change of Control Termination, and provided you (I) enter into, do not revoke, and comply with the Release and (II) you comply with the Twelve-Month Restrictive Covenant (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary of the Date of Termination), WTAM will pay, in the manner set forth below, as severance to you (or in the case of your subsequent deathControl, the legal representative of your estate or such other person or persons as you following provisions shall have designated by written notice to WTAM):apply:
(ia) The Company shall pay to the Employee an amount equal to the sum of (Ai) 1.75 times thirty-six (36) months of the Employee’s monthly base salary in effect on the date the Employee’s employment terminates, (ii) three hundred percent (300%) of the Employee’s Average Annual Base Salary; Cash Bonus, plus (Biii) an amount determined by multiplying the Average Cash Incentive Compensation if approved by the fraction obtained by dividing Compensation Committee of the number Board, a Pro Rata Portion of days employed by the Company during the Termination Year by 365Employee’s Average Annual Cash Bonus, and (C) 1.75 times the Average Cash Incentive Compensationif any. The amounts in this Paragraph 9(i) Subject to Section 9 below, payment shall be paid made in a lump sum on the first payroll date sixty (60) days following the 30th day after the Date of Termination if permissible under Section 409A Employee’s Separation from Service.
(b) The Employee and such of the Code without being subject to additional tax, penalty or surcharge under Section 409A Employee’s dependents as are participating as of the Code date of the Employee’s termination (it being understood that if a lump sum payment is not permissible thereunder, the amounts under this Paragraph 9(i“Covered Dependents”) shall be paid in the same schedule as set forth in Paragraph 7 above);
(ii) you shall be entitled to accelerated vesting the medical continuation benefits specified in Section 3(b) above for a maximum period equal to the number of any unvested portion of any time-based equity award that would have vested in months for which the twenty-one-month period following Company is obligated to pay the Date of Termination as if no termination had occurred; andEmployee’s base salary pursuant to Section 4(a) above.
(iiic) If you elect COBRA insurance coverage, WTAM directly will pay to you COBRA Premiums for twenty-one months following the Date termination of Termination, provided that WTAM’s payment obligation shall cease upon the expiration of your rights under COBRA or if you became reemployed and eligible for group health benefitsemployment. Furthermore, the Company agrees to maintain, for a period of at least six years after your termination, directors’ and officers’ liability insurance insuring you (in your capacity as an officer and/or director) and other officers and directors, with a limit of liability not less than the aggregate of the respective amounts set forth in the policy or policies maintained All unvested restricted stock held by the Company immediately prior on the Employee’s behalf, all unvested stock rights awards, and all unvested performance share awards will fully vest on the date of the Employee’s termination of employment and will be distributed to the Employee within thirty (30) days of Employee’s Separation from Service.
(d) If the Employee’s unvested Equity Awards have been exchanged pursuant to Section 5(c) for the right to receive a contingent cash payment based on the Base Restricted Share Value or a contingent cash payment based on the Base Performance Share Value, subject to Section 9 below, the Employee shall receive a cash payment made in a lump sum sixty (60) days following the Employee’s Separation from Service equal to any portion of the unpaid Base Restricted Share Value and/or the unpaid Base Performance Share Value, as the case may be, that has not been paid pursuant to Section 5(c), together with accrued but unpaid interest at the Prime Rate on such unpaid amount from the date of the Change of ControlControl to the date of payment. Notwithstanding For the foregoingsake of clarity, if you breach any of Section 5(c) applies, the provisions contained in Paragraph 4, all payments under this Paragraph 9 shall immediately cease, but you Employee shall be entitled to retain any payments made to you prior to any breach by you of the provisions of Paragraph 4. However, if you shall breach the provisions of Paragraph 4(c), the Company shall be entitled to recover from you a pro-rata portion of the payments made to you under this Paragraph 9 that corresponds to the proportionate period of time that you were in breach of Paragraph 4(c). If you initiate or otherwise participate in any arbitration proceeding against the Company to enforce the rights and entitlements granted to you cash payment pursuant to this Paragraph 9 and you substantially prevail in such a proceeding, you Section 4(d) but shall be entitled not receive any stock pursuant to recover from the Company all of your costs of enforcement, including reasonable attorney’s fees and expensesSection 4(c).
Appears in 1 contract
Samples: Severance and Change of Control Agreement (Regency Centers Corp)
Change of Control Severance. The provisions In addition to the rights of the Executive under the Company’s employee benefit plans (paragraph C of Section 3 above) but in lieu of any severance payment under paragraph E of this Paragraph 9 shall apply in lieu of, and expressly supersede, the provisions of Paragraph 7 regarding severance pay and benefits upon a termination of employmentSection 4 above, if such termination of employment occurs within eighteen months after the occurrence of there is a Change in Control of Control the Company (as defined below). Upon a Post-Change of Control Termination, ) during the Term and provided you within six (I6) enter into, do not revoke, and comply with months thereafter the Release and (II) you comply with the Twelve-Month Restrictive Covenant (provided that you shall not be obligated to comply with the Twelve-Month Restrictive Covenant following the one year anniversary employment of the Date of Termination), WTAM will pay, in the manner set forth below, as severance to you (Executive is concurrently or in the case of your subsequent death, the legal representative of your estate or such other person or persons as you shall have designated by written notice to WTAM):
subsequently terminated (i) by the sum Company without cause, or (ii) by the resignation of the Executive because he has reasonably determined in good faith that his titles, authorities, responsibilities as CEO, salary (except as permitted under paragraph A of Section 3 above), bonus opportunities or benefits have been materially diminished, that a material adverse change in his working conditions as CEO has occurred, or the Company has breached this Agreement (clause (ii) of the first paragraph of this Section 4(F) shall mean “Good Reason”); provided that the reduction or change of the Executive’s title, authorities, responsibilities or working conditions related to removal of the Executive as COO, CFO or both shall not constitute Good Reason, the Company shall pay the Executive, as a severance payment, at the time of such termination, and subject to the Executive signing a Release, (A) 1.75 times the Annual continued Base Salary; (B) an amount determined by multiplying , as in effect at the Average Cash Incentive Compensation by the fraction obtained by dividing the number time of days employed by the Company such termination, during the Termination Year by 365Severance Period, and (C) 1.75 times payable in regular installments in accordance with the Average Cash Incentive Compensation. The amounts in this Paragraph 9(i) shall Company’s normal payroll practices as they may exist from time to time, with the installments that otherwise would be paid in a lump sum on prior to the first payroll date following the 30th day after date the Date of Termination if permissible under Section 409A of the Code Release becomes effective and irrevocable in accordance with its terms being paid (without being subject to additional tax, penalty or surcharge under Section 409A of the Code (it being understood that if interest) on such payroll date in a lump sum payment is not permissible thereunderand the remaining installments being paid as otherwise scheduled assuming payments had begun immediately after the date of termination, (B) a bonus equal to (x) one (1) year of Base Salary (as in effect on the amounts under this Paragraph 9(idate of termination) shall plus an additional two months of Base Salary for every fully completed year of Executive’s service to the Company, and (y) one (1) year of the Target Bonus Amount in effect on the date of termination plus an additional two months of prorated Target Bonus Amount for every fully completed year of Executive’s service to the Company, in each case payable in equal bi-monthly installments during the Severance Period, with the installments that otherwise would be paid in the same schedule as set forth in Paragraph 7 above);
(ii) you shall be entitled to accelerated vesting of any unvested portion of any time-based equity award that would have vested in the twenty-one-month period following the Date of Termination as if no termination had occurred; and
(iii) If you elect COBRA insurance coverage, WTAM directly will pay to you COBRA Premiums for twenty-one months following the Date of Termination, provided that WTAM’s payment obligation shall cease upon the expiration of your rights under COBRA or if you became reemployed and eligible for group health benefits. Furthermore, the Company agrees to maintain, for a period of at least six years after your termination, directors’ and officers’ liability insurance insuring you (in your capacity as an officer and/or director) and other officers and directors, with a limit of liability not less than the aggregate of the respective amounts set forth in the policy or policies maintained by the Company immediately prior to the Change first payroll date following the date the Release becomes effective and irrevocable in accordance with its terms being paid (without interest) on such payroll date in a lump sum and the remaining installments being paid as otherwise scheduled assuming payments had begun immediately after the date of Controltermination, (C) in addition to (B), the unpaid Annual Bonus, if any, earned for the year in which the termination occurs, prorated to the date of termination of Executive’s employment, to be paid at the time the Company pays bonuses to other senior executives of the Company and (D) all unvested stock options and restricted shares held by the Executive shall vest immediately, and any vested stock options shall remain exercisable for the Severance Period (but not beyond the original 10-year term). The Company shall promptly reimburse the Executive for the amount of any expenses incurred prior to such termination of the Executive as required under paragraph E of Section 3 above. The Company shall also pay to the Executive the amount of the Annual Bonus, if any, that has been earned by the Executive for a completed fiscal year or other measuring period preceding the date of termination, but has not yet been paid to the Executive (to be paid at a time the Company pays bonuses to other senior executives of the Company for that completed fiscal year or other measuring period). Notwithstanding the foregoing, if you breach any before the Executive may resign pursuant to clause (iii) of this paragraph, the Executive shall deliver to the Company a written notice of the provisions contained in Paragraph 4Executive’s intent to terminate his employment thereunder, all payments under this Paragraph 9 shall immediately cease, but you shall be entitled to retain any payments made to you prior to any breach by you of the provisions of Paragraph 4. However, if you shall breach the provisions of Paragraph 4(c), and the Company shall be entitled have been given a reasonable opportunity to recover from you cure any such act, omission or condition within thirty (30) days after the Company’s receipt of such notice. For the purpose of this Agreement, a pro-rata portion Change in Control of the payments made Company has occurred when: (a) any person (defined for the purposes of this paragraph F to you mean any person within the meaning of Section 13(d) of the Exchange Act), other than Navidea, an employee benefit plan created by its Board of Directors for the benefit of its employees, or a participant in a transaction approved by its Board for the principal purpose of raising additional capital, either directly or indirectly, or an Affiliate of such participant, acquires beneficial ownership (determined under this Paragraph 9 Rule 13d-3 of the regulations promulgated under Section 13(d) of the Exchange Act) of securities issued by Navidea having thirty percent (30%) or more of the voting power of all the voting securities issued by Navidea in the election of directors at the next meeting of the holders of voting securities to be held for such purpose; (b) a majority of the directors elected at any meeting of the holders of voting securities of Navidea are persons who were not nominated for such election by the Board or a duly constituted committee of the Board having authority in such matters; (c) the stockholders of Navidea approve a merger or consolidation of Navidea with another person other than a merger or consolidation in which the holders of Navidea’s voting securities issued and outstanding immediately before such merger or consolidation continue to hold voting securities in the surviving or resulting corporation (in the same relative proportions to each other as existed before such event) comprising eighty percent (80%) or more of the voting power for all purposes of the surviving or resulting corporation; or (d) the stockholders of Navidea approve a transfer of substantially all of the assets of Navidea to another person other than: (i) a transfer to a transferee, eighty percent (80%) or more of the voting power of which is owned or controlled by Navidea or by the holders of Navidea’s voting securities issued and outstanding immediately before such transfer in the same relative proportions to each other as existed before such event, or (ii) a transfer following which Navidea continues the operation of one or more lines of business that corresponds were operated by Navidea prior to the proportionate period transfer, and a class of time that you were in breach Navidea’s common stock remains registered under Section 12 of Paragraph 4(c). If you initiate or otherwise participate in any arbitration proceeding against the Company to enforce the rights and entitlements granted to you pursuant to this Paragraph 9 and you substantially prevail in such a proceeding, you shall be entitled to recover from the Company all of your costs of enforcement, including reasonable attorney’s fees and expensesExchange Act.
Appears in 1 contract
Samples: Employment Agreement (Navidea Biopharmaceuticals, Inc.)
