Following Change in Control. Within twelve (12) months after a Change in Control occurs, Executive may resign his employment or his employment may be terminated for any reason, including, without limitation, death or Disability. For purposes of this Agreement, such a termination of employment (including, without limitation, as a result of such a resignation) is referred to as “Termination Following Change in Control.” For this purpose, a “Change in Control” means:
Following Change in Control. If, following a Change in Control of the Company, the Company shall terminate the Executive's employment other than for Cause or Disability (it being understood that a purported termination for Cause or Disability which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement), or the Executive shall terminate his employment for Good Reason, then the Company shall pay the Executive, not later than the fifth day following the Date of Termination, the aggregate of the following amounts:
(A) his full Base Salary and accrued vacation pay through the Date of Termination at the rate in effect at the time Notice of Termination is given, or the Date of Termination where no Notice of Termination is required hereunder, and any other amounts which the Executive is entitled under any plan, policy, practice or program of the Company or otherwise at the time such payment is due;
(B) the product of (x) the Recent Bonus, times (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365;
(C) in lieu of any further salary or bonus payments to the Executive for periods subsequent to the Date of Termination, and as a severance benefit to the Executive, a lump sum amount equal to three times the Executive's annual Base Salary in effect immediately prior to the occurrence of the circumstances giving rise to such termination or, if greater, at the time of the Change in Control, plus three times the Recent Bonus; and
(D) commencing on the date two years after the Date of Termination, the payments that would have been made to the Executive pursuant to Section 9(d) had the Executive terminated his employment due to Retirement on such date.
Following Change in Control. If the Executive elects to terminate his employment within sixty (60) days following a Change in Control in accordance with Section 4(d), and the Executive executes a separation agreement with a release of claims agreeable to the Company (to the extent that the Executive is physically and mentally capable to execute such an agreement), then such termination by the Executive shall be treated as a termination by the Company without Cause, and the Executive shall be entitled to the compensation provided in Section 5(b), except that instead of the payment provided for in Section 5(b)(i)(B) hereof, the Executive shall be entitled to the annual Bonus (if any) earned pursuant to any annual bonus or incentive plan maintained by the Company in respect of the fiscal year in which such termination occurs, and he shall be entitled to the full amount of such Bonus even if he terminates his employment before the end of such fiscal year. Notwithstanding the foregoing, the Company may require that the Executive continue to remain in the employ of the Company for up to a maximum of three (3) months following the Change in Control (the “Post-Term Period”). Notwithstanding the foregoing, if payment in accordance with the preceding sentence would subject the Executive to tax under section 409A of the Internal Revenue Code of 1986, as amended, then payment will be suspended until the first date as of which payment can be made without subjecting the Executive to such tax.
17. Section 5(d) is hereby further amended to eliminate Section 5(d)(i), to redesignate Section 5(d)(ii) as Section 5(d)(i), and to redesignate Section 5(d)(iii) as Section 5(d)(ii).
18. Section 6(a) is hereby amended in its entirety to read as follows:
(a) The Executive agrees that during the during his employment and for the two-year period immediately following the termination of his employment for any reason (hereafter, the “Non-Competition Period”), he will not, directly or indirectly, either separately, jointly or in association with others, as an officer, director, consultant, agent, employee, owner, principal, partner or stockholder of any business, provide services of the same or similar kind or nature that he provides to the Company to, or have a financial interest in (excepting only the ownership of not more than 5% of the outstanding securities of any class listed on an exchange or the Nasdaq Stock Market), any competitor of the Company (which means any person or organization that is in the busines...
Following Change in Control. If the Executive is entitled to compensation and benefits as provided in Section 3(b), then the Company shall pay to the Executive, as severance compensation and in consideration of the Executive’s adherence to the terms of Section 5 hereof, subject to Sections 4(e) and 4(f) below, the following (such benefits pursuant to this Section 4(b) collectively referred to hereinafter as the “CIC Severance”):
(i) a cash payment equal to [___] times the Executive’s Base Salary; and.
(ii) a cash payment equal to [___] times the Executive’s Targeted Bonus with respect to the year in which the termination of employment occurs; and
(iii) for eighteen months after Executive’s termination of employment, Executive, his or her spouse and his or her dependents will continue to be entitled to participate in the Company’s group health plans in which the Executive participates immediately prior to his or her termination of employment at the same rate as paid by similarly situated employees from time to time, provided that the Executive timely elects continuation coverage under Section 4980B(f) of the Code; and provided, further, that to the extent that such health plan does not permit continuation of the Executive’s or his or her spouse’s or dependents’ participation throughout such period, the Company shall provide the Executive, on the first business day of each calendar quarter, in advance, with an amount which is equal to the Company’s cost of providing such benefits, less the applicable employee rate of participation; and
(iv) a lump sum cash payment equal to twelve months the Company’s cost of providing such group health benefits, as determined in (iii), above, less the applicable employee rate of participation. The cash payments specified in paragraphs (i) and (ii) of this Section 4(b) shall be paid on the sixtyfifth (65th) day (or the next following business day if the sixty-fifth (65th) day is not a business day) following the Date of Termination. The cash payment specified in paragraph (iv) of this Section 4(b) shall be paid in a lump sum on the first regularly scheduled payroll date following the sixty-fifth (65th) day after the Date of Termination.
Following Change in Control. Notwithstanding the foregoing, upon the occurrence of a Change in Control, the restrictions on transfer with respect to the Restricted Shares normally subject to vesting at the next vesting date shall immediately lapse and such Restricted Shares shall be fully vested effective upon the date of the Change in Control; provided, however, (i) if the Change in Control occurs on or prior to February 27, 2019, one-third of the Restricted Shares shall immediately vest and the remaining two-thirds of the Restricted Shares shall be converted into time-based Restricted Shares which shall vest ratably in two annual installments beginning on February 27, 2020, subject only to the Participant’s continued employment by the Company or one of its Subsidiaries or Affiliates (regardless of whether, or the extent to which, any performance goals set forth in Section 2(a)(i) are achieved) and (ii) if the Change in Control occurs after February 27, 2019 but on or prior to February 27, 2020, two-thirds of the Restricted Shares shall immediately vest and the remaining one-third of the Restricted Shares shall be converted into time-based Restricted Shares which shall vest on February 27, 2021, subject only to the Participant’s continued employment by the Company or one of its Subsidiaries or Affiliates (regardless of whether, or the extent to which, any performance goals set forth in Section 2(a)(i) are achieved).
Following Change in Control. If the Executive elects to terminate his employment within thirty (30) days following a Change in Control in accordance with Section 4(d), such termination by the Executive shall be treated as a termination by the Company without Cause, and the Executive shall be entitled to the compensation provided in Section 5(c). Notwithstanding the foregoing, the Company may require that the Executive continue to remain in the employ of the Company for up to a maximum of thirty (30) days following the Change in Control (the “Post-Term Period”). The Company shall place the maximum cash payments payable pursuant to Section 5(c) in escrow with a commercial bank or trust company mutually acceptable to the Company and the Executive as soon as practicable following the Change in Control. For the Post-Term Period, the Company shall make the cash payments that would otherwise be required pursuant to Section 3 (all such cash payments to be deducted from the amount placed in escrow). At the expiration of the Post-Term Period, the Executive shall receive all cash amounts due the Executive from the remaining amount held in escrow ratably monthly over the Restricted Period (as defined below), with the balance (if any) returned to the Company. If the Company does not require that the Executive remain in the employ of the Company, the Company shall pay the Executive all cash amounts payable pursuant to Section 5(c) ratably monthly over the Restricted Period (all such cash payments to be deducted from the amount placed in escrow) with the balance (if any) returned to the Company.
Following Change in Control. To the extent the Option does not accelerate, in connection with a Change in Control, the Option shall continue, over Optionee’s period of Service after the Change in Control, to become exercisable for the Option Shares in one or more installments in accordance with the provisions of the Option Agreement. However, immediately upon an Involuntary Termination of Optionee’s Service within eighteen (18) months following such Change in Control, the Option (or any replacement grant), to the extent outstanding at the time but not otherwise fully exercisable, shall automatically accelerate so that the Option shall become immediately exercisable for all the Option Shares at the time subject to the Option and may be exercised for any or all of those shares as fully vested shares of Common Stock.
Following Change in Control. Employee may terminate his employment under this Agreement in the event of a Change in Control, as defined in Section 2 hereof, by giving written notice of such termination to the Secretary of the Company not less than six months nor more than twelve months following such Change in Control. Without limiting the generality of the definition of Change in Control as set forth in Section 2, the failure of the Employee to be reelected a director of the Company shall be deemed a Change in Control unless such failure is due to the Employee's voluntary act or the Employee's employment has been terminated by the Company for Cause.
Following Change in Control. Within twelve (12) months after a Change in Control occurs, Executive may resign his employment or his employment may be terminated for any reason, including, without limitation, death or Disability. For purposes of this Agreement, such a termination of employment (including, without limitation, as a result of such a resignation) is referred to as “Termination Following Change in Control.” For this purpose, a “Change in Control” means:
(i) Consummation by the Company of (A) a reorganization, merger, consolidation or other form of corporate transaction or series of transactions, in each case, other than a reorganization, merger or consolidation or other transaction that would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding securities that represent immediately after such transaction more than 50% of the combined voting power of the voting securities of the Company or the surviving company or the parent of the surviving company, or (B) a liquidation or dissolution of the Company or (C) the sale of all or substantially all of the assets of the Company;
(ii) Individuals who, as of the Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board, provided (A) that any person becoming a director subsequent to the Effective Date whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board (other than an election or nomination of an individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the Directors of the Company, as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Securities Exchange Act of 1934) or (B) any individual appointed to the Board by the Incumbent Board shall be, for purposes of this Agreement, considered as though such person were a member of the Incumbent Board; or
(iii) The acquisition (other than from the Company) by any person, entity or “group,” within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, of more than 26% of either the then outstanding shares of the Company’s common stock or the combined voting power of the Company’s then outstanding voting securities entitled to vote generally in the election of directors (hereinafter referred to as the ownership of a “Cont...
Following Change in Control. If the Executive elects to terminate his employment within sixty (60) days following a Change in Control in accordance with Section 4(d), and the Executive executes a Release (to the extent that the Executive is physically and mentally capable to execute such an agreement) within 60 days of his termination of employment, then such termination by the Executive shall be treated as a termination by the Company without Cause, and the Executive shall be entitled to the compensation provided in Section 5(b). Notwithstanding the foregoing, the Company may require that the Executive continue to remain in the employ of the Company for up to a maximum of three (3) months following the Change in Control (the “Post-Term Period”).
