Change in Control Payment The provisions of this Section 5 set forth certain terms of an agreement reached between the Executive and the Company regarding the Executive’s rights and obligations upon the occurrence of a Change in Control of the Company. These provisions are intended to assure and encourage in advance the Executive’s continued attention and dedication to his assigned duties and his objectivity during the pendency and after the occurrence of any such event. These provisions shall apply in lieu of, and expressly supersede, the provisions of Section 4(b) regarding severance pay and benefits upon a termination of employment, if such termination of employment occurs within 12 months after the occurrence of the first event constituting a Change in Control. These provisions shall terminate and be of no further force or effect beginning 12 months after the occurrence of a Change in Control.
Change in Control Payments The provisions of this paragraph 8 set forth the terms of an agreement reached between Employee and the Company regarding Employee’s rights and obligations upon the occurrence of a “Change in Control” (as hereinafter defined) of the Company during the Term. These provisions are intended to assure and encourage in advance Employee’s continued attention and dedication to his assigned duties and his objectivity during the pendency and after the occurrence of any such Change in Control. The following provisions shall apply in the event of a Change in Control, in addition to any payment or benefit that may be required pursuant to Section 7.
Change of Control Payments (a) If at any time during the Initial Term and any Renewal Term (i) there is a Change of Control (as defined below) and (ii) your employment is terminated by the Company without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicable, then the Company shall pay you an amount equal to two times the sum of (a) your then Annual Base Salary, (b) the average of the annual bonuses actually paid to you with respect to the three completed years preceding the date of your termination of employment and (c) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 would be payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc., exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensation, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. The amounts payable to you under this Section 3.9(a) shall be in lieu of any amounts payable to you under Section 3.8 above.
(b) As used herein, “Change of Control” shall mean the occurrence of one or more of the following events:
Change of Control Payment “Change of Control Payment” is defined in Section 3.9(a)(vii) of the Agreement.
Change of Control Severance Benefits (a) If during the Change of Control Period Cascade shall terminate Executive’s employment other than for Cause, or Executive shall terminate employment with Cascade for Good Reason, Cascade shall: (i) pay Executive (or in the event of Executive’s subsequent death, Executive’s beneficiary or estate, as the case may be), as severance pay, a sum equal to two (2) times the salary and bonus paid by Cascade to Executive during the twelve (12) month period ending on the last day of the month preceding the effective date of a Change of Control (excluding any gains resulting from exercise of stock options or vesting of restricted stock awards or other similar forms of stock compensation); (ii) cause to be continued for twenty-four (24) months after the effective date of a Change of Control, life, medical, dental, and disability coverage substantially identical to the coverage maintained by Cascade for Executive prior to the effective date of a Change of Control, except to the extent such coverage may be changed in its application to all Cascade employees on a nondiscriminatory basis; and (iii) accelerate any unvested stock-based compensation so any such stock-based compensation shall be 100% vested and immediately exercisable in full as of the date of such termination. Payments due under (i) above shall be paid to Executive in a lump sum no sooner than six (6) months after the date of Executive’s termination.
(b) Notwithstanding the provisions of Section 1(a) above, if a payment to Executive who is a “disqualified individual” shall be in an amount which includes an “excess parachute payment,” the payment hereunder to Executive shall be reduced to the maximum amount which does not include an “excess parachute payment.” The terms “disqualified individual” and “excess parachute payment” shall have the meaning defined in Section 280G of the Internal Revenue Code of 1986, as amended.
(c) Executive shall not be required to mitigate the amount of any payment or benefit provided for in Section 1(a) of this Agreement by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in Section 1(a) of this Agreement be reduced by any compensation earned or benefit received by Executive as the result of employment by another employer. This Agreement shall not be construed as a contract of employment or as providing Executive any right to be retained in the employ of Cascade or any affiliate thereof.
(d) Prior to Executive’s gaining the right to receive, and in exchange for, the severance compensation, benefits and option acceleration provided in Section 3(a), above, to which Executive would not otherwise be entitled, Executive shall first enter into and execute a release substantially in the form attached hereto as Exhibit A (the “Release”) upon Executive’s termination of employment. Unless the Release is executed by Executive and delivered to Cascade within twenty-one (21) days after the termination of Executive’s employment with Cascade, Executive shall not receive any severance benefits provided under this Agreement, acceleration, if any, of Executive’s equity grants/benefits as provided in this Agreement shall not apply and Executive’s equity grants/benefits in such event may be exercised following the date of Executive’s termination only to the extent provided under their originals terms in accordance with the applicable equity plans and agreements.
Change in Control Benefit If a Change in Control occurs followed within twenty-four (24) months by Separation from Service prior to Normal Retirement Age, the Bank shall distribute to the Executive the benefit described in this Section 2.4 in lieu of any other benefit under this Article.
Change of Control Severance 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 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 pay the Employee, as a severance payment, at the time of such termination, ___ ($___), together with the value of any accrued but unused vacation time, and the amount of all accrued but previously unpaid base salary through the date of termination and shall provide him with all of the Employee benefits under paragraph C of Section 3 above for the longer of ___ (___) months or the full unexpired Term of this Employment Agreement. The Company shall promptly reimburse the Employee for the amount of any expenses incurred prior to such termination by the Employee as required under paragraph F of 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 the meaning of Section 13(d) of the Securities Exchange Act of 1934 (the “Exchange Act”)), other than Neoprobe, 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 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 thirty percent (30%) 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 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 deemed to have occurred when the definite proposal was made for the purposes of the first sentence of this paragraph G of this Section 4.
Change in Control Benefits In the event there is a Change in Control, as defined below, and the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Employer without Cause (other than on account of the Executive’s death or disability), in each case within twelve (12) months either (a) after Executive’s employment has terminated or (b) following a Change in Control, the Executive shall be entitled to be paid, in a single lump sum, severance equal to two (2) years’ salary at that salary rate being paid to Executive as of the date of the Executive’s termination together with an amount equal to one times (1.0x) the average of the Annual Bonus paid to Executive for services during the preceding three (3) calendar years (or the Executive’s period of employment, if less than three (3) years), provided; that, in the event the Executive’s employment has terminated and Executive has been paid a severance benefit under Section 6 of this Agreement, such change in control benefit under this Section 7 shall be reduced by the amount of the severance benefit previously paid. Executive acknowledges and agrees that such payment is in lieu of all damages, payments and liabilities on account of the early termination of this Agreement and is the sole and exclusive remedy for Executive (other than rights, if any, to exercise any of the stock options vested prior to such termination), and shall only be paid, within 60 days after his separation from service with Employer, subject to Executive’s execution and delivery to Employer, within such 60-day period, of a complete release of all claims Executive may have against the Employer, its officers, directors, agents, employees, predecessors, successors, parents, subsidiaries, and affiliates. If the 60-day period referred to in the immediately preceding sentence begins in one calendar year and ends in the following calendar year, then the payment shall be made in the latter calendar year. If upon termination of employment Executive chooses to arbitrate any claims pursuant to Section 18, Executive shall be deemed to have waived Executive’s right, if any, to severance.
Change in Control Severance If, following the occurrence of a Change in Control, the Company or an Affiliate terminates the Executive's employment during the Post-Change Period other than as described in clause (i), (ii) or (iii) of Section 8(a), or if the Executive terminates his employment pursuant to Section 8(b), the Executive shall not be entitled to the severance compensation described in Section 7, and the Company will (i) pay or cause to be paid to the Executive the amounts described in Sections 8(c)(1), 8(c)(2), 8(c)(3), 8(c)(6) and 8(c)(7) within five business days after the Termination Date; (ii) pay or cause to be paid to the Executive the amount described in Section 8(c)(4), such amount to be payable no earlier than the date on which such Incentive Pay, if any, would have been paid under the applicable plan or policy of the Company absent such termination of employment; and (iii) provide the Executive the benefits described in Section 8(c)(5) for the period described therein.
(1) A lump sum payment in an amount equal to all Base Pay and Incentive Pay (other than for the calendar year of such termination of employment) owed to the Executive for periods on or prior to the Termination Date.
(2) A lump sum payment in an amount equal to two times the Executive's base salary pursuant to Section 4(a) (at the rate in effect immediately prior to the Termination Date).
(3) A lump sum payment equal to two times Incentive Pay (in an amount equal to the highest amount of Incentive Pay earned by the Executive in any calendar year during the three calendar years immediately preceding the calendar year in which the Change in Control occurred).
(4) In the event that the Termination Date occurs after June 30 in any calendar year, a lump sum payment equal to one times Incentive Pay for such calendar year, multiplied by a fraction, the numerator of which is the number of days between (and including) January 1 of the calendar year in which the Termination Date occurs and the Termination Date, and the denominator of which is 365.
(5) For a period of 24 months following the Termination Date (the "Continuation Period"), the Company will provide the Executive with medical, dental and life insurance benefits consistent with the terms in effect for such benefits for active employees of the Company during the Continuation Period. If and to the extent that any benefit described in this Section 8(c)(5) is not or cannot be paid or provided under any Company plan or program, then the Company will pay or provide for the payment to the Executive, his dependants and beneficiaries, of such employee benefits. Without otherwise limiting the purposes of Section 8(d), employee benefits otherwise receivable by the Executive pursuant to this Section 8(c)(5) will be reduced to the extent comparable welfare benefits are actually received by the Executive from another employer during the Continuation Period following the Executive's Termination Date, and any such benefits actually received by the Executive shall be reported by the Executive to the Company.
(6) The Company will pay to the Executive the cost of employee outplacement services for the Executive in the amount of $30,000.
(7) The Company will pay the Executive a two-year automobile allowance in the amount provided to the Executive immediately prior to the Termination Date.
Severance Amount If the Company is required to pay Executive severance by the express terms of Section 7(a) or 7(b), the Company shall pay Executive the following as severance:
(1) Executive's Base Salary at the highest rate in effect prior to the Termination Date as salary continuation for a period of eighteen months commencing on the date on which Executive's employment with the Company is terminated (the "TERMINATION DATE") (the "SEVERANCE PERIOD"), payable in equal monthly installments pursuant to the Company's customary payroll practices for executive salaries; provided, however, that, at the option of the Company, the amounts payable under this Section 7(c) may be paid by the Company in one lump sum.
(2) Executive, Executive's spouse, and Executive's dependents will continue to be eligible for coverage under the Company's group health plan or any successor plan on the same basis as active executive employees of the Company, their spouses, and their dependents for the duration of the Severance Period. If and when group health coverage under another employer's plan is made available to Executive, Executive's spouse, or Executive's dependents, the Company's obligations under this paragraph will cease with respect to each person to whom such coverage is made available, notwithstanding that such person may not in fact become covered under such other employer's plan. Executive's portion of the premium for such coverage shall be withheld from the salary continuation payments described in paragraph (1) immediately above or, if salary continuation has been paid in a lump sum, Executive shall reimburse the Company for Executive's portion of the premium on a monthly basis.
(3) An amount equal to the sum of amounts paid or payable to Executive as bonuses by the Company for the year prior to the year in which the Termination Date occurs. This amount will be payable in one lump sum, to Executive within 30 days after the end of the Severance Period.
(4) Executive shall become 100% vested in all of the shares of restricted stock granted to Executive under the Mariner Energy, Inc. Equity Participation Plan to the extent Executive is less than 100% vested in such shares as of the Termination Date.
(5) Executive shall become 50% vested in all of the rights and interests granted to Executive under the Company's stock and other equity plans (other than the Mariner Energy, Inc. Equity Participation Plan), including without limitation any stock options, restricted stock, restricted stock units, performance units, and/or performance shares to the extent Executive is less than 50% vested in such award as of the Termination Date.
(6) Notwithstanding any other provision hereof, if the Company incurs an obligation to pay severance under this Section 7(c) in connection with the termination of Executive's employment after the consummation of an initial public offering by the Company, then, subject to Section 7(h), Executive shall be entitled to receive the amounts specified in Section 8(a) in lieu of the amounts specified in Sections 7(c)(1) and 7(c)(3).
(7) Payments under this Section 7(c) shall be in lieu of any severance benefits otherwise due to Executive under any severance pay plan or program maintained by the Company that covers its employees or executives generally. If Executive receives payment under Section 8(a), payments otherwise payable under Section 7(c)(1) shall terminate.
