Termination After Change in Control. Upon a Termination pursuant to Section 9(d) [termination by the Company without Just Cause] or Section 9(e) [termination by Executive for Good Reason] occurring on or within twenty-four (24) months after a Change in Control (as defined below), (i) the vesting and exercisability of all of Executive’s stock options and other equity-based awards will be accelerated in full so that all such stock options will be immediately exercisable for fully vested stock and any other stock awards will be fully vested as of the date of such Termination, and (ii) Executive’s stock options will remain exercisable in accordance with the plan document. For purposes of this Agreement, “Change of Control” shall mean (1) a sale of all or substantially all the assets of the Company; (2) a merger into or consolidation of the Company with any other corporation, except any such merger or consolidation involving the Company or a subsidiary of the Company in which the holders of capital stock of the Company immediately prior to such merger or consolidation continue to hold immediately following such merger or consolidation at least 50% by voting power of the capital stock of (a) the surviving or resulting corporation or (b) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation, (3) the acquisition by any person, entity or group within the meaning of Section 13(d) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any comparable successor provisions (excluding any employee benefit plan, or related trust, sponsored or maintained by the Company or any parent or subsidiary corporation of the Company) of the beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable successor rule) of securities of the Company representing at least fifty percent (50%) of the combined voting power entitled to vote in the election of directors, or (4) individuals who, on the date of execution of this Agreement, are members of the Company’s Board of Directors (the “Incumbent Board”), cease for any reason to constitute at least a majority of the members of the Board of Directors; provided, however, that if the appointment or election (or nomination for election) of any new Board of Directors member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall, for purposes of this Agreement, be considered as a member of the Incumbent Board.
Appears in 1 contract
Sources: Employment Agreement (Pharmion Corp)
Termination After Change in Control. Upon a Termination pursuant to Section 9(d) [termination by the Company without Just Cause] or Section 9(e) [termination by Executive for Good Reason] occurring on or within twenty-four (24) months after a Change in Control (as defined below), (i) the vesting and exercisability of all of Executive’s 's stock options and other equity-based awards will be accelerated in full so that all such stock options will be immediately exercisable for fully vested stock and any other stock awards will be fully vested as of the date of such Termination, and (ii) Executive’s 's stock options will remain exercisable in accordance with the plan document. For purposes of this Agreement, “"Change of Control” " shall mean (1) a sale of all or substantially all the assets of the Company; (2) a merger into or consolidation of the Company with any other corporation, except any such merger or consolidation involving the Company or a subsidiary of the Company in which the holders of capital stock of the Company immediately prior to such merger or consolidation continue to hold immediately following such merger or consolidation at least 50% by voting power of the capital stock of (a) the surviving or resulting corporation or (b) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation, (3) the acquisition by any person, entity or group within the meaning of Section 13(d) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"), or any comparable successor provisions (excluding any employee benefit plan, or related trust, sponsored or maintained by the Company or any parent or subsidiary corporation of the Company) of the beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable successor rule) of securities of the Company representing Amended and Restated Employment Agreement Ivers-Read, Gillian March, 2004 ▇ repres▇▇▇▇▇▇ at least fifty percent (50%) of the combined voting power entitled to vote in the election of directors, or (4) individuals who, on the date of execution of this Agreement, are members of the Company’s 's Board of Directors (the “"Incumbent Board”"), cease for any reason to constitute at least a majority of the members of the Board of Directors; provided, however, that if the appointment or election (or nomination for election) of any new Board of Directors member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall, for purposes of this Agreement, be considered as a member of the Incumbent Board.
Appears in 1 contract
Sources: Employment Agreement (Pharmion Corp)
Termination After Change in Control. Upon a Termination pursuant (a) Cumulative to Section 9(d) [termination by the Company without Just Cause] or Section 9(e) [termination by Executive for Good Reason] occurring on or any other provision of this Agreement, if, within twenty-four (24) months two years after a Change change in Control control of Corporation, Executive's employment with Corporation terminates for any reason, either voluntarily or involuntarily, other than by death, permanent disability or retirement at or after Executive's normal retirement date under Corporation's Retirement Plan, Corporation promptly will pay Executive, upon Executive's request, as termination compensation, a lump sum amount, determined as provided in subsection (as defined below), (ib) the vesting and exercisability of all of Executive’s stock options and other equity-based awards will be accelerated in full so that all such stock options will be immediately exercisable for fully vested stock and any other stock awards will be fully vested as of the date of such Terminationthis Section 15, and such other amounts as are provided in subsection (iic) Executive’s stock options will remain exercisable in accordance with the plan documentof this Section 15. For purposes of this AgreementSection, “Change a "change in control of Control” Corporation" shall mean (1) a sale change in control of all or substantially all the assets of the Company; (2) a merger into or consolidation of the Company with any other corporation, except any such merger or consolidation involving the Company or a subsidiary of the Company nature that would be required to be reported in which the holders of capital stock of the Company immediately prior response to such merger or consolidation continue to hold immediately following such merger or consolidation at least 50% by voting power of the capital stock of (a) the surviving or resulting corporation or (b) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation, (3) the acquisition by any person, entity or group within the meaning of Section 13(d) or 14(d)(2Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"); provided that, or without limitation, such a change in control of Corporation shall be deemed to have occurred if (i) any comparable successor provisions "person" (excluding any employee benefit plan, or related trust, sponsored or maintained by the Company or any parent or subsidiary corporation of the Companyas such term is used in Sections 13(d) and 14(d)(2) of the beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) is or becomes the beneficial owner, directly or comparable successor rule) indirectly, of securities of the Company Corporation representing at least fifty percent (50%) 40% or more of the combined voting power entitled to vote in the election of directors, Corporation's then outstanding securities; or (4ii) during any period of two consecutive years, individuals who, on who at the date beginning of execution of this Agreement, are members of such period constitute the Company’s Board of Directors (the “Incumbent Board”), of Corporation cease for any reason to constitute at least a majority thereof unless the election of each new director was approved by a vote of at least two-thirds of the members directors then still in office who were directors at the beginning of the Board period.
(b) The lump sum compensation payable to Executive (the "Severance Payment") shall be equal to the average annual compensation (including salary and bonuses under the Corporate Management Incentive Compensation Plan or any predecessor or successor annual incentive compensation plan) paid or payable by Corporation to Executive during the five most recent calendar years ending before the date of Directorsthe change in control of Corporation (the "Base Amount") multiplied by 2.99; provided, however, that if Executive voluntarily terminates his employment with Corporation, except after (i) any material adverse change in Executive's duties, location of employment or benefits, or (ii) any material adverse change to Executive in the appointment or election (or nomination for election) of any new Board of Directors member was approved or recommended by a majority vote application of the members formula of the Incumbent Board Corporate Management Incentive Compensation Plan or any modification in Corporation's accounting methods or practices materially adverse to Executive, including the assessment of a management fee, then still in office, such new member shall, for purposes of this Agreement, the Severance Payment shall be considered as a member of equal to the Incumbent Board.highest annual compensation (including salary and bonuses under the
Appears in 1 contract
Termination After Change in Control. Upon a Termination pursuant (a) Cumulative to Section 9(d) [termination by any other provision of the Company without Just Cause] or Section 9(e) [termination by Executive for Good Reason] occurring on or Employment Agreement, if, within twenty-four (24) months two years after a Change change in Control control of Corporation, Executive's
(as defined belowb) The lump sum compensation payable to Executive (the "Severance Payment") shall be equal to the average annual compensation (including salary and bonuses under the Corporate Management Incentive Compensation Plan or any predecessor or successor annual incentive compensation plan) paid or payable by Corporation to Executive during the five most recent calendar years ending before the date of the change in control of Corporation (the "Base Amount")
(c) In addition, if Executive's employment with Corporation so terminates within two (2) years after such a change in control of Corporation:
(i) the vesting any bonus awards previously made to Executive and exercisability of all of Executive’s stock options not previously paid immediately shall vest upon such termination and other equity-based awards will shall be accelerated in full so that all such stock options will be immediately exercisable for fully vested stock and any other stock awards will be fully vested as of the date of such Termination, and paid; (ii) Executive’s 's participation in, and terminating distributions and vested rights under, any applicable retirement plan, profit sharing plan and stock options will remain exercisable incentive plan of Corporation or any of its subsidiaries shall be governed by the terms of those respective plans; and (iii) In the event of termination of employment under the circumstances described in accordance subsection (a) of this Section 15, the
(d) Notwithstanding any provision in this Agreement to the contrary, in the event that any payment or benefit received or to be received by Executive in connection with a change in control of Corporation or the plan documenttermination of Executive's employment, whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with Corporation (collectively the "Total Payments"), would not be deductible (in whole or part) as a result of Section 280G of the Code, the Severance Payment shall be reduced until no portion of the Total Payments is not deductible as a result of Section 280G of the Code, or the Severance Payment is reduced to zero. For purposes of this Agreementlimitation, “Change of Control” shall mean (1i) a sale of all or substantially all the assets no portion of the Company; (2) a merger into Total Payments, the receipt or consolidation enjoyment of which Executive shall have effectively waived in writing prior to the date of payment of the Company with any other corporationSeverance Payment, except any such merger or consolidation involving the Company or a subsidiary shall be taken into account, (ii) no portion of the Company Total Payments shall be taken into account which, in which the holders opinion of capital stock of the Company immediately prior tax counsel selected by Corporation's independent auditors and acceptable to such merger or consolidation continue to hold immediately following such merger or consolidation at least 50% by voting power of the capital stock of (a) the surviving or resulting corporation or (b) if the surviving or resulting corporation is Executive, does not constitute a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation, (3) the acquisition by any person, entity or group "parachute payment" within the meaning of Section 13(d) or 14(d)(2280G(b)(2) of the Securities Exchange Act of 1934Code, as amended (iii) the “Exchange Act”), or any comparable successor provisions Severance Payment shall be reduced only to the extent necessary so that the Total Payments (excluding any employee benefit plan, payments referred to in clause (i) or related trust, sponsored or maintained by the Company or any parent or subsidiary corporation of the Company(ii)) of the beneficial ownership (in their entirety constitute reasonable compensation for services actually rendered within the meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable successor rule) of securities of the Company representing at least fifty percent (50%Section 280G(b)(4) of the combined voting power entitled to vote Code, in the election opinion of directors, the tax counsel referred to in clause (ii); and (iv) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by Corporation's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) individuals who, on the date of execution of this Agreement, are members of the Company’s Board of Directors (the “Incumbent Board”), cease for any reason to constitute at least a majority of the members of the Board of Directors; provided, however, that if the appointment or election (or nomination for election) of any new Board of Directors member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall, for purposes of this Agreement, be considered as a member of the Incumbent BoardCode.
Appears in 1 contract
Termination After Change in Control. Upon a Termination pursuant to Section 9(d) [termination by the Company without Just Cause] or Section 9(e) [termination by Executive for Good Reason] occurring on or within twenty-four (24) months after a Change in Control (as defined below), (i) the vesting and exercisability of all of Executive’s 's stock options and other equity-based awards will be accelerated in full so that all such stock options will be immediately exercisable for fully vested stock and any other stock awards will be fully vested as of the date of such Termination, and (ii) Executive’s 's stock options will remain exercisable in accordance with until the plan documentfirst anniversary of Executive's date of Termination. For purposes of this Agreement, “"Change of Control” " shall mean (1) a sale of all or substantially all the assets of the Company; (2) a merger into or consolidation of the Company with any other corporation, except any such merger or consolidation involving the Company or a subsidiary of the Company in which the holders of capital stock of the Company immediately prior to such merger or consolidation continue to hold immediately following such merger or consolidation at least 50% by voting power of the capital stock of (a) the surviving or resulting corporation or (b) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation, (3) the acquisition by any person, entity or group within the meaning of Section 13(d) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"), or any comparable successor provisions (excluding any employee benefit plan, or related trust, sponsored or maintained by the Company or any parent or subsidiary corporation of the Company) of the beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable successor rule) of securities of the Company representing at least fifty percent (50%) of the combined voting power entitled to vote in the election of directors, or (4) individuals who, on the date of execution of this Amended and Restated Agreement, are members of the Company’s 's Board of Directors (the “"Incumbent Board”), ") cease for any reason to constitute at least a majority of the members of the Board of Directors; provided, however, that if the appointment or election (or nomination for election) of any new Board of Directors member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall, for purposes of this Agreement, be considered as a member of the Incumbent Board.
Appears in 1 contract
Sources: Employment Agreement (Pharmion Corp)
Termination After Change in Control. Upon a Termination pursuant (a) Cumulative to Section 9(d) [termination by any other provision of the Company without Just Cause] or Section 9(e) [termination by Executive for Good Reason] occurring on or Employment Agreement, if, within twenty-four (24) months two years after a Change change in Control control of Corporation, Executive's employment with Corporation terminates for any reason, either voluntarily or involuntarily, other than by death, permanent disability or retirement at or after Executive's normal retirement date under Corporation's Retirement Plan, Corporation promptly will pay Executive, upon Executive's request, as termination compensation, a lump sum amount, determined as provided in subsection (as defined below), (ib) the vesting and exercisability of all of Executive’s stock options and other equity-based awards will be accelerated in full so that all such stock options will be immediately exercisable for fully vested stock and any other stock awards will be fully vested as of the date of such Terminationthis Section 15, and such other amounts as are provided in subsection (iic) Executive’s stock options will remain exercisable in accordance with the plan documentof this Section 15. For purposes of this AgreementSection, “Change a "change in control of Control” Corporation" shall mean (1) a sale change in control of all or substantially all the assets of the Company; (2) a merger into or consolidation of the Company with any other corporation, except any such merger or consolidation involving the Company or a subsidiary of the Company nature that would be required to be reported in which the holders of capital stock of the Company immediately prior response to such merger or consolidation continue to hold immediately following such merger or consolidation at least 50% by voting power of the capital stock of (a) the surviving or resulting corporation or (b) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation, (3) the acquisition by any person, entity or group within the meaning of Section 13(d) or 14(d)(2Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"); provided that, or without limitation, such a change in control of Corporation shall be deemed to have occurred if (i) any comparable successor provisions "person" (excluding any employee benefit plan, or related trust, sponsored or maintained by the Company or any parent or subsidiary corporation of the Companyas such term is used in Sections 13(d) and 14(d)(2) of the beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) is or becomes the beneficial owner, directly or comparable successor rule) indirectly, of securities of the Company Corporation representing at least fifty percent (50%) 40% or more of the combined voting power entitled to vote in the election of directors, Corporation's then outstanding securities; or (4ii) during any period of two consecutive years, individuals who, on who at the date beginning of execution of this Agreement, are members of such period constitute the Company’s Board of Directors (the “Incumbent Board”), of Corporation cease for any reason to constitute at least a majority thereof unless the election of each new director was approved by a vote of at least two-thirds of the members directors then still in office who were directors at the beginning of the Board period.
(b) The lump sum compensation payable to Executive (the "Severance Payment") shall be equal to the average annual compensation (including salary and bonuses under the Corporate Management Incentive Compensation Plan or any predecessor or successor annual incentive compensation plan) paid or payable by Corporation to Executive during the five most recent calendar years ending before the date of Directorsthe change in control of Corporation (the "Base Amount") multiplied by 2.99; provided, however, that if Executive voluntarily terminates his employment with Corporation, except after (i) any material adverse change in Executive's duties, location of employment or benefits, or (ii) any material adverse change to Executive in the appointment or election (or nomination for election) of any new Board of Directors member was approved or recommended by a majority vote application of the members formula of the Incumbent Board Corporate Management Incentive Compensation Plan or any modification in Corporation's accounting methods or practices materially adverse to Executive, including the assessment of a management fee, then still the Severance Payment shall be equal to the highest annual compensation (including salary and bonuses under the Corporate Management Incentive Compensation Plan or any successor annual incentive compensation plan) paid or payable by Corporation to Executive for services rendered in office, such new member shall, for purposes of this Agreement, be considered as a member any one of the Incumbent Boardthree calendar years ending with the year of such termination.
Appears in 1 contract
Termination After Change in Control. Upon a Termination pursuant (a) Cumulative to Section 9(d) [termination by any other provision of the Company without Just Cause] or Section 9(e) [termination by Executive for Good Reason] occurring on or Employment Agreement, if, within twenty-four (24) months two years after a Change change in Control control of Corporation, Executive's employment with Corporation terminates for any reason, either voluntarily or involuntarily, other than by death, permanent disability or retirement at or after Executive's normal retirement date under Corporation's Retirement Plan, Corporation promptly will pay Executive, upon Executive's request, as termination compensation, a lump sum amount, determined as provided in subsection (as defined below), (ib) the vesting and exercisability of all of Executive’s stock options and other equity-based awards will be accelerated in full so that all such stock options will be immediately exercisable for fully vested stock and any other stock awards will be fully vested as of the date of such Terminationthis Section 15, and such other amounts as are provided in subsection (iic) Executive’s stock options will remain exercisable in accordance with the plan documentof this Section 15. For purposes of this AgreementSection, “Change a "change in control of Control” Corporation" shall mean (1) a sale change in control of all or substantially all the assets of the Company; (2) a merger into or consolidation of the Company with any other corporation, except any such merger or consolidation involving the Company or a subsidiary of the Company nature that would be required to be reported in which the holders of capital stock of the Company immediately prior response to such merger or consolidation continue to hold immediately following such merger or consolidation at least 50% by voting power of the capital stock of (a) the surviving or resulting corporation or (b) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation, (3) the acquisition by any person, entity or group within the meaning of Section 13(d) or 14(d)(2Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"); provided that, or without limitation, such a change in control of Corporation shall be deemed to have occurred if (i) any comparable successor provisions "person" (excluding any employee benefit plan, or related trust, sponsored or maintained by the Company or any parent or subsidiary corporation of the Companyas such term is used in Sections 13(d) and 14(d)(2) of the beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) is or becomes the beneficial owner, directly or comparable successor rule) indirectly, of securities of the Company Corporation representing at least fifty percent (50%) 40% or more of the combined voting power entitled to vote in the election of directors, Corporation's then outstanding securities; or (4ii) during any period of two consecutive years, individuals who, on who at the date beginning of execution of this Agreement, are members of such period constitute the Company’s Board of Directors (the “Incumbent Board”), of Corporation cease for any reason to constitute at least a majority thereof unless the election of each new director was approved by a vote of at least two-thirds of the members directors then still in office who were directors at the beginning of the Board period.
(b) The lump sum compensation payable to Executive (the "Severance Payment") shall be equal to the average annual compensation (including salary and bonuses under the Corporate Management Incentive Compensation Plan or any predecessor or successor annual incentive compensation plan) paid or payable by Corporation to Executive during the five most recent calendar years ending before the date of Directorsthe change in control of Corporation (the "Base Amount") multiplied by 2.99; provided, however, that if Executive voluntarily terminates his employment with Corporation, except after (i) any material adverse change in Executive's duties, location of employment or benefits, or (ii) any material adverse change to Executive in the appointment or election (or nomination for election) of any new Board of Directors member was approved or recommended by a majority vote application of the members formula of the Incumbent Board Corporate Management Incentive Compensation Plan or any modification in Corporation's accounting methods or practices materially adverse to Executive, including the assessment of a management fee, then still in office, such new member shall, for purposes of this Agreement, the Severance Payment shall be considered as a member of equal to the Incumbent Board.highest annual compensation (including salary and bonuses under the
Appears in 1 contract
Termination After Change in Control. Upon a Termination pursuant (a) Cumulative to Section 9(d) [termination by any other provision of the Company without Just Cause] or Section 9(e) [termination by Executive for Good Reason] occurring on or Employment Agreement, if, within twenty-four (24) months two years after a Change change in Control control of Corporation, Executive's employment with Corporation terminates for any reason, either voluntarily or involuntarily, other than death, permanent disability or retirement at or after Executive's normal retirement date under Corporation's Retirement Plan, Corporation promptly will pay Executive, upon Executive's request, as termination compensation, a lump sum amount, determined as provided in subsection (as defined below), (ib) the vesting and exercisability of all of Executive’s stock options and other equity-based awards will be accelerated in full so that all such stock options will be immediately exercisable for fully vested stock and any other stock awards will be fully vested as of the date of such Terminationthis Section 15, and such other amounts as are provided in subsection (iic) Executive’s stock options will remain exercisable in accordance with the plan documentof this Section 15. For purposes of this AgreementSection, “Change a "change in control of Control” Corporation" shall mean (1) a sale change in control of all or substantially all the assets of the Company; (2) a merger into or consolidation of the Company with any other corporation, except any such merger or consolidation involving the Company or a subsidiary of the Company nature that would be required to be reported in which the holders of capital stock of the Company immediately prior response to such merger or consolidation continue to hold immediately following such merger or consolidation at least 50% by voting power of the capital stock of (a) the surviving or resulting corporation or (b) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation, (3) the acquisition by any person, entity or group within the meaning of Section 13(d) or 14(d)(2Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"); provided that, or without limitation, such a change in control of Corporation shall be deemed to have occurred if (i) any comparable successor provisions "person" (excluding any employee benefit plan, or related trust, sponsored or maintained by the Company or any parent or subsidiary corporation of the Companyas such term is used in Sections 13(d) and 14(d)(2) of the beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) is or becomes the beneficial owner, directly or comparable successor rule) indirectly, of securities of the Company Corporation representing at least fifty percent (50%) 40% or more of the combined voting power entitled to vote in the election of directors, Corporation's then outstanding securities; or (4ii) during any period of two consecutive years, individuals who, on who at the date beginning of execution of this Agreement, are members of such period constitute the Company’s Board of Directors (the “Incumbent Board”), of Corporation cease for any reason to constitute at least a majority thereof unless the election of each new director was approved by a vote of at least two-thirds of the members directors then still in office who were directors at the beginning of the Board period.
(b) The lump sum compensation payable to Executive (the "Severance Payment") shall be equal to the average annual compensation (including salary and bonuses under the Corporate Management Incentive Compensation Plan or any predecessor or successor annual incentive compensation plan) paid or payable by Corporation to Executive during the five most recent calendar years ending before the date of Directorsthe change in control of Corporation (the "Base Amount") multiplied by 2.99; provided, however, that if Executive voluntarily terminates his employment with Corporation, except after (i) any material adverse change in Executive's duties, location of employment or benefits, or (ii) any material adverse change to Executive in the appointment or election (or nomination for election) of any new Board of Directors member was approved or recommended by a majority vote application of the members formula of the Incumbent Board Corporate Management Incentive Compensation Plan or any modification in Corporation's accounting methods or practices materially adverse to Executive, including the assessment of a management fee, then still in office, such new member shall, for purposes of this Agreement, the Severance Payment shall be considered as a member of equal to the Incumbent Board.highest annual compensation (including salary and bonuses under the
Appears in 1 contract
Termination After Change in Control. Upon a Termination pursuant to Section 9(d) [termination by the Company without Just Cause] or Section 9(e) [termination by Executive for Good Reason] occurring on or within twenty-four (24) months after a Change in Control (as defined below), (i) the vesting and exercisability of all of Executive’s 's stock options and other equity-based awards will be accelerated in full so that all such stock options will be immediately exercisable for fully vested stock and any other stock awards will be fully vested as of the date of such Termination, and (ii) Executive’s 's stock options will remain exercisable in accordance with the plan document. For purposes of this Agreement, “"Change of Control” " shall mean (1) a sale of all or substantially all the assets of the Company; (2) a merger into or consolidation of the Company with any other corporation, except any such merger or consolidation involving the Company or a subsidiary of the Company in which the holders of capital stock of the Company immediately prior to such merger or consolidation continue to hold immediately following such merger or consolidation at least 50% by voting power of the capital stock of (a) the surviving or resulting corporation or (b) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation, (3) the acquisition by any person, entity or group within the meaning of Section 13(d) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"), or any comparable successor provisions (excluding any employee benefit plan, or related trust, sponsored or maintained by the Company or any parent or subsidiary corporation of the Company) of the beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable successor rule) of securities of the Company representing at least fifty percent (50%) of the combined voting power entitled to vote in the election of directors, or (4) individuals who, on the date of execution of this Agreement, are members of the Company’s 's Board of Directors (the “"Incumbent Board”"), cease for any reason to constitute at Amended and Restated Employment Agreement Mast, Erle March, 2004 6 con▇▇▇▇▇▇▇ ▇▇ least a majority of the members of the Board of Directors; provided, however, that if the appointment or election (or nomination for election) of any new Board of Directors member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall, for purposes of this Agreement, be considered as a member of the Incumbent Board.
Appears in 1 contract
Sources: Employment Agreement (Pharmion Corp)
Termination After Change in Control. Upon a Termination pursuant (a) Cumulative to Section 9(d) [termination by the Company without Just Cause] or Section 9(e) [termination by Executive for Good Reason] occurring on or any other provision of this Agreement, if, within twenty-four (24) months two years after a Change change in Control control of Corporation, Executive's employment with Corporation terminates for any reason, either voluntarily or involuntarily, other than by death, permanent disability or retirement at or after Executive's normal retirement date under Corporation's Retirement Plan, Corporation promptly will pay Executive, upon Executive's request, as termination compensation, a lump sum amount, determined as provided in subsection (as defined below), (ib) the vesting and exercisability of all of Executive’s stock options and other equity-based awards will be accelerated in full so that all such stock options will be immediately exercisable for fully vested stock and any other stock awards will be fully vested as of the date of such Terminationthis Section 15, and such other amounts as are provided in subsection (iic) Executive’s stock options will remain exercisable in accordance with the plan documentof this Section 15. For purposes of this AgreementSection, “Change a "change in control of Control” Corporation" shall mean (1) a sale change in control of all or substantially all the assets of the Company; (2) a merger into or consolidation of the Company with any other corporation, except any such merger or consolidation involving the Company or a subsidiary of the Company nature that would be required to be reported in which the holders of capital stock of the Company immediately prior response to such merger or consolidation continue to hold immediately following such merger or consolidation at least 50% by voting power of the capital stock of (a) the surviving or resulting corporation or (b) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation, (3) the acquisition by any person, entity or group within the meaning of Section 13(d) or 14(d)(2Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"); provided that, or without limitation, such a change in control of Corporation shall be deemed to have occurred if (i) any comparable successor provisions "person" (excluding any employee benefit plan, or related trust, sponsored or maintained by the Company or any parent or subsidiary corporation of the Companyas such term is used in Sections 13(d) and 14(d)(2) of the beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) is or becomes the beneficial owner, directly or comparable successor rule) indirectly, of securities of the Company Corporation representing at least fifty percent (50%) 40% or more of the combined voting power entitled to vote in the election of directors, Corporation's then outstanding securities; or (4ii) during any period of two consecutive years, individuals who, on who at the date beginning of execution of this Agreement, are members of such period constitute the Company’s Board of Directors (the “Incumbent Board”), of Corporation cease for any reason to constitute at least a majority thereof unless the election of each new director was approved by a vote of at least two-thirds of the members directors then still in office who were directors at the beginning of the Board period.
(b) The lump sum compensation payable to Executive (the "Severance Payment") shall be equal to the average annual compensation (including salary and bonuses under the Corporate Management Incentive Compensation Plan or any predecessor or successor annual incentive compensation plan) paid or payable by Corporation to Executive during the five most recent calendar years ending before the date of Directorsthe change in control of Corporation (the "Base Amount") multiplied by 2.99; provided, however, that if Executive voluntarily terminates his employment with Corporation, except after (i) any material adverse change in Executive's duties, location of employment or benefits, or (ii) any material adverse change to Executive in the appointment application of the formula of the Corporate Management Incentive Compensation Plan or election any modification in Corporation's accounting methods or practices materially adverse to Executive, including the assessment of a management fee, then the Severance Payment shall be equal to the highest annual compensation (including salary and bonuses under the Corporate Management Incentive Compensation Plan or nomination any successor annual incentive compensation plan) paid or payable by Corporation to Executive for electionservices rendered in any one of the three calendar years ending with the year of such termination.
(c) In addition, if Executive's employment with Corporation so terminates within two (2) years after such a change in control of Corporation:
(i) any bonus awards previously made to Executive and not previously paid immediately shall vest upon such termination and shall be paid;
(ii) Executive's participation in, and terminating distributions and vested rights under, any applicable retirement plan, profit sharing plan and stock incentive plan of Corporation or any of its subsidiaries shall be governed by the terms of those respective plans; and
(iii) In the event of termination of employment under the circumstances described in subsection (a) of this Section 15, the arrangements provided for by this Section 15, by any new Board stock option or other agreement between Corporation and Executive in effect at the time and by any other applicable plan of Directors member was approved Corporation shall constitute the entire obligation of Corporation to Executive and performance thereof shall constitute full settlement of any claim that Executive might otherwise assert against Corporation on account of such termination, provided, however, that this provision and this Agreement shall have no impact on the obligations of Corporation under that certain Indemnification Agreement dated August 4, 1993 between Corporation and Executive.
(d) Notwithstanding any provision in this Agreement to the contrary, in the event that any payment or recommended benefit received or to be received by Executive in connection with a majority vote change in control of Corporation or the termination of Executive's employment, whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with Corporation (collectively the "Total Payments"), would not be deductible (in whole or part) as a result of Section 280G of the members Code, the Severance Payment shall be reduced until no portion of the Incumbent Board then still in officeTotal Payments is not deductible as a result of Section 280G of the Code, such new member shall, for or the Severance Payment is reduced to zero. For purposes of this Agreementlimitation, be considered as a member (i) no portion of the Incumbent BoardTotal Payments, the receipt or enjoyment of which Executive shall have effectively waived in writing prior to the date of payment of the Severance Payment, shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the opinion of tax counsel selected by Corporation's independent auditors and acceptable to Executive, does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code, (iii) the Severance Payment shall be reduced only to the extent necessary so that the Total Payments (excluding payments referred to in clause (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code, in the opinion of the tax counsel referred to in clause (ii); and (iv) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by Corporation's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.
Appears in 1 contract
Termination After Change in Control. Upon a Termination pursuant to Section 9(d8(d) [termination by the Company without Just Cause] or Section 9(e8(e) [termination by Executive for Good Reason] occurring on or within twenty-four (24) months after a Change in Control (as defined below), (i) the vesting and exercisability of all of Executive’s 's stock options and other equity-based awards will be accelerated in full so that all such stock options will be immediately exercisable for fully vested stock and any other stock awards will be fully vested as of the date of such Termination, and (ii) Executive’s 's stock options will remain exercisable in accordance with the plan document. For purposes of this Agreement, “"Change of Control” " shall mean (1) a sale of all or substantially all the assets of the Company; (2) a merger into or consolidation of the Company with any other corporation, except any such merger or consolidation involving the Company or a subsidiary of the Company in which the holders of capital stock of the Company immediately prior to such merger or consolidation continue to hold immediately following such merger or consolidation at least 50% by voting power of the capital stock of (a) the surviving or resulting corporation or (b) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation, (3) the acquisition by any person, entity or group within the meaning of Section 13(d) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"), or any comparable successor provisions (excluding any employee benefit plan, or related trust, sponsored or maintained by the Company or any parent or subsidiary corporation of the Company) of the beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable successor rule) of securities of the Company representing at least fifty percent (50%) of the combined voting power entitled to vote in the election of directors, or (4) individuals who, on the date of execution of this Agreement, are members of the Company’s 's Board of Directors (the “"Incumbent Board”"), cease for any reason to constitute at least a majority of the members of the Board of Directors; provided, however, that if the appointment or election (or nomination for election) of any new Board of Directors member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall, for purposes of this Agreement, be considered as a member of the Incumbent Board.
Appears in 1 contract
Sources: Employment Agreement (Pharmion Corp)
Termination After Change in Control. Upon a Termination pursuant to Section 9(d) [termination by the Company without Just Cause] or Section 9(e) [termination by Executive for Good Reason] occurring on or within twenty-four (24) months after a Change in Control (as defined below), (i) the vesting and exercisability of all of Executive’s 's stock options and other equity-based awards will be accelerated in full so that all such stock options will be immediately exercisable for fully vested stock and any other stock awards will be fully vested as of the date of such Termination, and (ii) Executive’s 's stock options will remain exercisable in accordance with the plan document. For purposes of this Agreement, “"Change of Control” " shall mean (1) a sale of all or substantially all the assets of the Company; (2) a merger into or consolidation of the Company with any other corporation, except any such merger or consolidation involving the Company or a subsidiary of the Company in which the holders of capital stock of the Company immediately prior to such merger or consolidation continue to hold immediately following such merger or consolidation at least 50% by voting power of the capital stock of (a) the surviving or resulting corporation or (b) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation, (3) the acquisition by any person, entity or group within the meaning of Section 13(d) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"), or any comparable successor provisions (excluding any employee benefit plan, or related trust, sponsored or maintained by the Company or any parent or subsidiary corporation of the Company) of the beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable successor rule) of securities of the Company representing at least fifty percent (50%) of the combined voting power entitled to vote in the election of directors, or (4) individuals who, on the date of execution of this Agreement, are members of the Amended and Restated Employment Agreement Hemberger, Judith March 2004 6 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ Company’s 's Board of Directors (the “"Incumbent Board”"), cease for any reason to constitute at least a majority of the members of the Board of Directors; provided, however, that if the appointment or election (or nomination for election) of any new Board of Directors member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall, for purposes of this Agreement, be considered as a member of the Incumbent Board.
Appears in 1 contract
Sources: Employment Agreement (Pharmion Corp)