Termination and Severance. (a) Subject to Section 7(f) regarding a Change of Control, this Agreement may be terminated by either party without cause on six (6) months written notice to the other party. Subject to Section 7(f) regarding a Change of Control, this Agreement may be terminated by the Company immediately for cause by written notice to me. For purposes of this Section 7, cause for termination shall exist in the event of my dishonesty, chronic absenteeism, conviction of a felony, conviction of a misdemeanor involving moral turpitude, or material breach of this Agreement. (b) To the maximum extent permitted by law, I hereby expressly authorize the Company in advance upon my termination to deduct from my final paycheck(s) and from my paid time off (PTO) check all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations). (c) Upon termination of employment, I will execute and comply with the Employee Termination Certificate attached hereto as Exhibit C, and deliver to the Company all notes, data, tapes, lists, reference materials, sketches, drawings, memoranda, records and other documents which are in my possession or control belonging to the Company or relating to its business. (d) Termination of this Agreement will not relieve me from my obligations under Sections 1(b), 2 and 3 of this Agreement, which, by their respective terms, continue beyond the termination of this Agreement. (e) In the event of my death, this Agreement will terminate and all accrued and unpaid compensation and expenses, less all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations), will be payable to my estate. (f) Notwithstanding any other provision of this Agreement to the contrary, if the Company, with or without cause, terminates my employment or gives me notice of termination, or if I terminate my employment or give notice of termination by reason of a material breach by the Company of the terms of this Agreement (including but not limited to the terms set forth on Exhibit A hereto), at any time during the twelve-month period following a Change of Control (as hereinafter defined), then I shall receive, in addition to any other compensation provided for in this Agreement, a lump-sum severance payment in an amount equal to the Gross Annual Salary, less any income, excise, employment or other tax withholdings which the Company is required by law to deduct therefrom. (g) For purposes of this Agreement, a Change in Control shall mean the satisfaction of the conditions set forth in any one of the following paragraphs: (i) any person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") as modified and used in Sections 13(d) and 14(d) thereof, except that neither (A) the Company or any of its ------ subsidiaries, (B) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (C) an underwriter temporarily holding securities pursuant to an offering of such securities, nor (D) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company shall be included in such term) (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its affiliates) representing 25% or more of the combined voting power of the Company's then outstanding securities; or (ii) during any period of up to two consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board of Directors of the Company (the "Board") and any new director (other than a director designated by a Person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii) or (iv) of this paragraph) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or (iii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 75% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person acquires more than 50% of the combined voting power of the Company's then outstanding securities; or (iv) the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all the Company's assets.
Appears in 2 contracts
Samples: Employment Agreement (GRC International Inc), Employment Agreement (GRC International Inc)
Termination and Severance. The Employment Period shall terminate prior to its scheduled expiration date on the first to occur of (i) your death or permanent disability (defined as your actual inability to perform normal duties for a period of 20 consecutive days or for a total of 30 days in any one- year period or your prospective inability to perform such duties for such period as determined in good faith by the Board), (ii) a vote of the Board directing such termination for Cause, or (iii) a vote of the Board directing such termination without Cause. In the event (a) Subject the Employment Period is terminated pursuant to Section 7(fclause (iii) regarding a Change of Control, this Agreement may be terminated by either party without cause on six (6) months written notice to the other party. Subject to Section 7(f) regarding a Change of Control, this Agreement may be terminated by the Company immediately for cause by written notice to me. For purposes of this Section 7, cause for termination shall exist in the event of my dishonesty, chronic absenteeism, conviction of a felony, conviction of a misdemeanor involving moral turpitude, above or material breach of this Agreement.
(b) To the maximum extent permitted Company gives you a Non-Renewal Notice, and so long as you comply and in consideration of your compliance with the restrictions set forth in paragraphs 5 and 6 below, the Company shall (i) continue to pay your base salary for six months following the date of such termination or the expiration of the Employment Period, as applicable, and (ii) pay you in cash for any vacation days that shall have accrued and shall not have been taken by law, I hereby expressly authorize you during the fiscal year of the Company in advance upon my termination to deduct from my final paycheck(s) and from my paid time off (PTO) check all amounts I owe which the Employment Period is so terminated or the Company (including but not limited to repayment gives you such Non-Renewal Notice, which number of advances, loans or any other obligations).
(c) Upon termination of employment, I will execute and comply with the Employee Termination Certificate attached hereto vacation days shall be determined as Exhibit C, and deliver to the Company all notes, data, tapes, lists, reference materials, sketches, drawings, memoranda, records and other documents which are in my possession or control belonging to the Company or relating to its business.
(d) Termination of this Agreement will not relieve me from my obligations under Sections 1(b), 2 and 3 of this Agreement, which, by their respective terms, continue beyond the termination of this Agreement.
(e) In the event of my death, this Agreement will terminate and all accrued and unpaid compensation and expenses, less all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations), will be payable to my estate.
(f) Notwithstanding any other provision of this Agreement to the contrary, if the Company, with or without cause, terminates my employment or gives me notice of termination, or if I terminate my employment or give notice of termination by reason of a material breach by the Company of the terms date of this Agreement (including but not limited to such termination or the terms set forth on Exhibit A hereto), at any time during the twelve-month period following a Change of Control (as hereinafter defined), then I shall receive, in addition to any other compensation provided for in this Agreement, a lump-sum severance payment in an amount equal to the Gross Annual Salary, less any income, excise, employment or other tax withholdings which the Company is required by law to deduct therefrom.
(g) For purposes of this Agreement, a Change in Control shall mean the satisfaction expiration of the conditions Employment Period, as applicable. Except as set forth in this paragraph 4, you shall not be entitled to any one of the following paragraphs:
(i) any person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") as modified and used in Sections 13(d) and 14(d) thereof, except that neither (A) compensation or other payment from the Company or any of its ------ subsidiariesaffiliates in connection with the termination of your employment. For purposes of this agreement, (Bx) a trustee or other fiduciary holding securities under an employee benefit plan "Cause" shall mean (i) your failure to comply with the lawful directives of the Company CEO or any of its subsidiariesthe Board, (Cii) an underwriter temporarily holding securities pursuant any criminal act or act of dishonesty, disloyalty, misconduct or moral turpitude by you that is injurious to an offering of such securitiesthe property, nor (D) a corporation ownedoperations, directly business or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company shall be included in such term) (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its affiliates) representing 25% or more of the combined voting power reputation of the Company's then outstanding securities; or
(ii) during any period of up to two consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board of Directors of the Company (the "Board") and any new director (other than a director designated by a Person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii) your failure to perform, or material negligence in the performance of, your duties and responsibilities to the Company, or (iv) your material breach of this paragraph) whose election by the Board or nomination for election agreement that is not cured within 5 days after written notice thereof to you by the Company's stockholders was approved by a vote of at least two thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 75% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person acquires more than 50% of the combined voting power of the Company's then outstanding securities; or
(iv) the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all the Company's assets.
Appears in 1 contract
Samples: Employment Agreement (SMTC Corp)
Termination and Severance. (a) Subject to Section 7(f) regarding a Change of Control, this Agreement may be terminated by either party without cause Cause on six (6) months written notice to the other party. Subject to Section 7(f) regarding a Change of Control, this Agreement may be terminated by the Company immediately for cause Cause by written notice to me. For purposes of this Section 7, cause "Cause" for termination shall exist in the event of my dishonesty, chronic absenteeism, conviction of a felony, conviction of a misdemeanor involving moral turpitude, or material breach of this Agreement.
(b) To the maximum extent permitted by law, I hereby expressly authorize the Company in advance upon my termination to deduct from my final paycheck(s) and from my paid time off (PTO) check all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations).
(c) Upon termination of employment, I will execute and comply with the Employee Termination Certificate attached hereto as Exhibit C, and deliver to the Company all notes, data, tapes, lists, reference materials, sketches, drawings, memoranda, records and other documents which are in my possession or control belonging to the Company or relating to its business.
(d) Termination of this Agreement will not relieve me from my obligations under Sections 1(b), 2 and 3 of this Agreement, which, by their respective terms, continue beyond the termination of this Agreement.
(e) In the event of my death, this Agreement will terminate and all accrued and unpaid compensation and expenses, less all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations), will be payable to my estate.
(f) Notwithstanding any other provision of this Agreement to the contrary, at any time during the thirty (30) month period following a Change of Control (as hereinafter defined),
(i) if the Company, with or Company (A) without causeCause, terminates my employment or terminates this Agreement or gives me notice of terminationeither of such terminations, (B) materially diminishes my level of responsibility or if I terminate position in the Company, (C) materially diminishes my salary or my bonus potential, (D) fails to provide me with any material benefit or perquisite provided to any other executive in a comparable position, (E) requires me to relocate to an office more than 25 miles from my place of employment or give notice immediately prior to the Change of termination by reason of a material breach by the Company of the terms of Control, (F) materially breaches this Agreement (including but not limited to the terms set forth on Exhibit A hereto), at ) in any time during the twelve-month period following a Change of Control (as hereinafter defined)other way, then I shall receive, in addition to any other compensation provided for in this Agreement, a lump-sum severance payment on the date of termination of my employment in an amount equal to two (2) times the Gross Annual Salary, less any income, excise, employment or other tax withholdings which the Company is required by law to deduct therefrom; and
(ii) if the Company takes any action described in clauses (A) through (F) of paragraph (f)(i) above, then the Company shall provide me with the same level of employee benefits I have been receiving immediately prior to such action, and such benefits shall be provided until the earlier of (A) such time as I obtain new benefits coverage by reason of new employment, or (B) the two (2) year anniversary of my termination of employment with the Company; and
(iii) if the Company takes any action described in clauses (A) through (F) of paragraph (f)(i) above and fails to provide me with any benefit required under paragraph (f)(i) or (f)(ii) above, then the Company shall reimburse me for any legal fees and expenses I incur in successfully enforcing my rights under either or both of said paragraphs.
(g) For purposes of this Agreement, a Change in of Control shall mean the satisfaction of the conditions set forth in any one of the following paragraphs:
(i) any person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") as modified and used in Sections 13(d) and 14(d) thereof, except that neither (A) the Company or any of its ------ subsidiaries, (B) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (C) an underwriter temporarily holding securities pursuant to an offering of such securities, nor (D) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company shall be included in such term) (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its affiliates) representing 25% or more of the combined voting power of the Company's then outstanding securities; or
(ii) during any period of up to two consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board of Directors of the Company (the "Board") and any new director (other than a director designated by a Person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii) or (iv) of this paragraph) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 75% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person acquires more than 50% of the combined voting power of the Company's then outstanding securities; or
(iv) the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all the Company's assets.
(h) Notwithstanding any other provision of this Agreement, in the event that any payment or benefit received or to be received by the Employee in connection with a Change of Control or the termination of the Employee's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change of Control or any person affiliated with the Company or such Person) (all such payments and benefits, including the Severance Benefits, being hereinafter called the "Total Benefits"), would be subject (in whole or in part) to the excise tax (the "Excise Tax") imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), then the Severance Benefits shall be reduced to the extent necessary so that no portion of the Total Benefits is subject to the Excise Tax if (A) the net amount of such Total Benefits, as so reduced, (and after deduction of the net amount of federal, state and local income taxes and FICA and Medicare taxes on such reduced Total Benefits) is greater than (B) the excess of (i) the net amount of such Total Benefits, without deduction (but after deduction of the net amount of federal, state and local income taxes and FICA and Medicare taxes on such Total Benefits), over (ii) the amount of Excise Tax to which the Employee would be subject in respect of such Total Benefits. For purposes of determining whether and the extent to which the Total Benefits will be subject to the Excise Tax, (i) no portion of the Total Benefits the receipt or enjoyment of which the Employee shall have effectively waived in writing prior to the Employee's date of termination of employment shall be taken into account, (ii) no portion of the Total Benefits shall be taken into account which in the opinion of tax counsel selected by the Company does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Benefits shall be determined by the Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (d)(4) of the Code. For purposes of this Section 7(h), the term "Severance Benefits" means the benefits provided for by Section 7(f) hereof.
Appears in 1 contract
Termination and Severance. The Employment Period shall terminate on the first to occur of (ai) Subject to Section 7(f) regarding a Change of Control, this Agreement may be terminated by either party without cause on six (6) months 30 days following written notice to the other party. Subject to Section 7(f) regarding a Change of Control, this Agreement may be terminated by the Company immediately for cause by written notice to me. For purposes of this Section 7, cause for termination shall exist in the event of my dishonesty, chronic absenteeism, conviction of a felony, conviction of a misdemeanor involving moral turpitude, or material breach of this Agreement.
(b) To the maximum extent permitted by law, I hereby expressly authorize the Company in advance upon my termination to deduct from my final paycheck(s) and from my paid time off (PTO) check all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations).
(c) Upon termination of employment, I will execute and comply with the Employee Termination Certificate attached hereto as Exhibit C, and deliver you to the Company all notes, data, tapes, lists, reference materials, sketches, drawings, memoranda, records and other documents which are in my possession or control belonging of your resignation (it being understood that you will continue to the Company or relating to its business.
(d) Termination of this Agreement will not relieve me from my obligations under Sections 1(bperform your services hereunder during such 30 day period), 2 and 3 of this Agreement, which, by their respective terms, continue beyond the termination of this Agreement.
(e) In the event of my death, this Agreement will terminate and all accrued and unpaid compensation and expenses, less all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations), will be payable to my estate.
(f) Notwithstanding any other provision of this Agreement to the contrary, if the Company, with or without cause, terminates my employment or gives me notice of termination, or if I terminate my employment or give notice of termination by reason of a material breach by the Company of the terms of this Agreement (including but not limited to the terms set forth on Exhibit A hereto), at any time during the twelve-month period following a Change of Control (as hereinafter defined), then I shall receive, in addition to any other compensation provided for in this Agreement, a lump-sum severance payment in an amount equal to the Gross Annual Salary, less any income, excise, employment or other tax withholdings which the Company is required by law to deduct therefrom.
(g) For purposes of this Agreement, a Change in Control shall mean the satisfaction of the conditions set forth in any one of the following paragraphs:
(i) any person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") as modified and used in Sections 13(d) and 14(d) thereof, except that neither (A) the Company or any of its ------ subsidiaries, (B) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (C) an underwriter temporarily holding securities pursuant to an offering of such securities, nor (D) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company shall be included in such term) (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its affiliates) representing 25% or more of the combined voting power of the Company's then outstanding securities; or
(ii) during any your death or permanent disability (defined as your actual inability to perform normal duties for a period of up 90 consecutive days or for a total of 120 days in any two-year period or your prospective inability to two perform normal duties for a period of 90 consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board of Directors of the Company (the "Board") and any new director (other than a director designated days as determined by a Person who has entered into an agreement with the Company physician reasonably acceptable to effect a transaction described in clause (iboth parties), (iii) a vote of the Board directing such termination for Cause, (iv) a vote of the Board directing such termination without Cause, or (v) the then-current scheduled expiration date of the Employment Period. In the event of termination of the Employment Period pursuant to clause (iv) and so long as you comply with the restrictions set forth in paragraphs 5 and 6 below, the Company shall continue to pay your base salary for a period of twelve months following the date of such termination or for the remainder of the Employment Period, whichever is less; provided, however, that the Company may in its sole discretion provide such severance compensation for a period of up to one year following such termination; and provided further, that such amounts shall be accelerated in the event that the Company defaults in making such payments for a period of 30 days except as otherwise set forth in this paragraph 4 or pursuant to the terms or employee benefit plans in which you participate pursuant to paragraph 3, you shall not be entitled to any compensation or other payment from the Company following termination of the Employment Period. For purpose of this agreement, "Cause" shall mean (i) your willful and repeated failure to comply with the lawful directives of the Board, (ii) any criminal act or act of dishonesty, disloyalty, misconduct or moral turpitude by you that is injurious in any significant respect to the property, operations, business or reputation of the Company, (iii) your material breach of this agreement, or (iv) actions by you which, but for the provisions of this paragraph) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two thirds clause (2/3ii) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entityparagraph 6(a), would violate the provisions of such paragraph 6(a) and which are injurious in combination with any significant respect to the ownership of any trustee property, operations, business or other fiduciary holding securities under an employee benefit plan of the Company, at least 75% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization reputation of the Company (or similar transaction) it being understood that your mere involvement on behalf of Cacomm shall not in which no Person acquires more than 50% and of the combined voting power of itself constitute an injury to the Company's then outstanding securities; or
(iv) the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all the Company's assetsreputation).
Appears in 1 contract
Termination and Severance. (a) Subject to Section 7(f) regarding a Change of Control, this Agreement may be terminated by either party without cause Cause on six (6) months written notice to the other party. Subject to Section 7(f) regarding a Change of Control, this Agreement may be terminated by the Company immediately for cause Cause by written notice to me. For purposes of this Section 7, cause "Cause" for termination shall exist in the event of my dishonesty, chronic absenteeism, conviction of a felony, conviction of a misdemeanor involving moral turpitude, or material breach of this Agreement.
(b) To the maximum extent permitted by law, I hereby expressly authorize the Company in advance upon my termination to deduct from my final paycheck(s) and from my paid time off (PTO) check all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations).
(c) Upon termination of employment, I will execute and comply with the Employee Termination Certificate attached hereto as Exhibit C, and deliver to the Company all notes, data, tapes, lists, reference materials, sketches, drawings, memoranda, records and other documents which are in my possession or control belonging to the Company or relating to its business.
(d) Termination of this Agreement will not relieve me from my obligations under Sections 1(b), 2 and 3 of this Agreement, which, by their respective terms, continue beyond the termination of this Agreement.
(e) In the event of my death, this Agreement will terminate and all accrued and unpaid compensation and expenses, less all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations), will be payable to my estate.
(f) Notwithstanding any other provision of this Agreement to the contrary, at any time during the thirty (30) month period following a Change of Control (as hereinafter defined),
(i) if the Company, with or Company (A) without causeCause, terminates my employment or terminates this Agreement or gives me notice of terminationeither of such terminations, (B) materially diminishes my level of responsibility or if I terminate position in the Company, (C) materially diminishes my salary or my bonus potential, (D) fails to provide me with any material benefit or prerequisite provided to any other executive in a comparable position, (E) requires me to relocate to an office more than 25 miles from my place of employment or give notice immediately prior to the Change of termination by reason of a material breach by the Company of the terms of Control, (F) materially breaches this Agreement (including but not limited to the terms set forth on Exhibit A hereto), at ) in any time during the twelve-month period following a Change of Control (as hereinafter defined)other way, then I shall receive, in addition to any other compensation provided for in this Agreement, a lump-sum severance payment on the date of termination of my employment in an amount equal to two (2) times the Gross Annual Salary, less any income, excise, employment or other tax withholdings which the Company is required by law to deduct therefrom; and
(ii) if the Company takes any action described in clauses (A) through (F) of paragraph (f)(i) above, then the Company shall provide me with the same level of employee benefits I have been receiving immediately prior to such action, and such benefits shall be provided until the earlier of (A) such time as I obtain new benefits coverage by reason of new employment, or (B) the two (2) year anniversary of my termination of employment with the Company; and
(iii) if the Company takes any action described in clauses (A) through (F) of paragraph (f)(i) above and fails to provide me with any benefit required under paragraph (f)(i) or (f)(ii) above, then the Company shall reimburse me for any legal fees and expenses I incur in successfully enforcing my rights under either or both of said paragraphs.
(g) For purposes of this Agreement, a Change in of Control shall mean the satisfaction of the conditions set forth in any one of the following paragraphs:
(i) any person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") as modified and used in Sections 13(d) and 14(d) thereof, except that neither (A) the Company or any of its ------ subsidiaries, (B) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (C) an underwriter temporarily holding securities pursuant to an offering of such securities, nor (D) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company shall be included in such term) (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its affiliates) representing 25% or more of the combined voting power of the Company's then outstanding securities; or
(ii) during any period of up to two consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board of Directors of the Company (the "Board") and any new director (other than a director designated by a Person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii) or (iv) of this paragraph) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 75% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person acquires more than 50% of the combined voting power of the Company's then than outstanding securities; or
(iv) the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all the Company's assets.
(h) Notwithstanding any other provision of this Agreement, in the event than any payment or benefit received or to be received by the Employee in connection with a Change of Control or the termination of the Employee's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change of Control or any person affiliated with the Company or such Person) (all such payments and benefits, including the Severance Benefits, being hereinafter called the "Total Benefits"), would be subject (in whole or in part) to the excise tax (the "Excise Tax") imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), then the Severance Benefits shall be reduced to the extent necessary so that no portion of the Total Benefits is subject to the Excise Tax if (A) the net amount of such Total Benefits, as so reduced, (and after deduction of the net amount of federal, state and local income taxes and FICA and Medicare taxes on such reduced Total Benefits) is greater than (B) the excess of (i) the net amount of such Total Benefits, without deduction (but after deduction of the net amount of federal, state and local income taxes and FICA and Medicare taxes on such Total Benefits), over (ii) the amount of Excise Tax to which the Employee would be subject in respect of such Total Benefits. For purposes of determining whether and the extent to which the Total Benefits will be subject to the Excise Tax, (i) no portion of the Total Benefits the receipt or enjoyment of which the Employee shall have effectively waived in writing prior to the Employee's date of termination of employment shall be taken into account, (ii) no portion of the Total Benefits xxxxx be taken into account which in the opinion of tax counsel selected by the Company does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Benefits shall be determined by the Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (d)(4) of the Code. For purposes of this Section 7(h), the term "Severance Benefits" means the benefits provided for by Section 7(f) hereof.
Appears in 1 contract
Termination and Severance. Executive's employment may be terminated during the Term upon the occurrence of any one or more of the following events:
(a) Subject to Section 7(f) regarding a Change disability of Control, this Agreement may be terminated by either party without cause on six Executive (6) months written notice to the other party. Subject to Section 7(f) regarding a Change of Control, this Agreement may be terminated by the Company immediately for cause by written notice to me. For purposes of this Section 7Term Sheet, cause "disability" shall mean Executive's inability to perform the essential duties, responsibilities and functions of his position with the Company for termination shall exist periods aggregating ninety (90) days in the event any three hundred sixty (360) day period as a result of my dishonesty, chronic absenteeism, conviction of a felony, conviction of a misdemeanor involving moral turpitude, any mental or material breach of this Agreement.physical disability or incapacity);
(b) To the maximum extent permitted by law, I hereby expressly authorize the Company in advance upon my termination to deduct from my final paycheck(s) and from my paid time off (PTO) check all amounts I owe the Company (including but not limited to repayment death of advances, loans or any other obligations).Executive;
(c) Upon termination Executive's failure to devote all of employment, I will execute and comply with the Employee Termination Certificate attached hereto as Exhibit C, and deliver Executive's business time to the Company all notesCompany;
(d) Executive's conviction, datapleading guilty, tapesor no contest with respect to a felony or a misdemeanor involving dishonesty or moral turpitude or where imprisonment is imposed;
(e) any act of theft, lists, reference materials, sketches, drawings, memoranda, records and other documents which are in my possession fraud or control belonging material act of dishonesty related to the Company or relating to its business.
(d) Termination in connection with performance of this Agreement will not relieve me from my obligations under Sections 1(b), 2 and 3 of this Agreement, which, by their respective terms, continue beyond the termination of this Agreement.
(e) In the event of my death, this Agreement will terminate and all accrued and unpaid compensation and expenses, less all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations), will be payable to my estate.Executive's duties hereunder; or
(f) Notwithstanding any other provision of this Agreement to the contrary, if the Company, with or without cause, terminates my employment or gives me notice of termination, or if I terminate my employment or give notice of termination by reason of a intentional material breach by the Company of the terms Executive's Employment Agreement and Executive's failure to cure within 5 days of this Agreement notice thereof (including but not limited to the terms set forth on Exhibit A heretoif such breach is capable of cure), at any time during the twelve-month period following a Change of Control (as hereinafter defined), then I shall receive, in addition to any other compensation provided for in this Agreement, a lump-sum severance payment in an amount equal to the Gross Annual Salary, less any income, excise, employment or other tax withholdings which the Company is required by law to deduct therefrom.
(g) For purposes In the event Executive is terminated other than pursuant to Sections 5 (b), (c), (d), (e), or (f) and provided that Executive is not in material breach of this Agreement, a Change in Control shall mean the satisfaction any of the conditions restrictions set forth in any one Sections 6, 7 and 8, the Company shall continue to pay Executive's salary for the remainder of the following paragraphs:
(i) any person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended Term (the "Exchange ActSeverance") as modified and used ), in Sections 13(d) and 14(d) thereofaccordance with its normal payroll practices; provided, except that neither (A) the Company or any of its ------ subsidiarieshowever, (B) such Severance shall be payable only if Executive signs a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (C) an underwriter temporarily holding securities pursuant to an offering of such securities, nor (D) a corporation owned, directly or indirectly, by the stockholders general release in favor of the Company in substantially the same proportions as their ownership of stock of a form satisfactory to the Company shall be included in such term) (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (not including set forth in the securities beneficially owned by such Person any securities acquired directly from the Company or its affiliates) representing 25% or more next paragraph of the combined voting power of the Company's then outstanding securities; or
(ii) during any period of up this Section 5. In order to two consecutive years (not including any period prior be entitled to the execution Severance set forth above, Executive must sign a general release of this Agreement)all claims, individuals who at the beginning of such period constitute the Board of Directors of the Company (the "Board") known and unknown, against Company, its managers, officers and directors, agents, representatives and employees and any new director (other than a director designated by a Person who has entered into an agreement related entities or persons. For the avoidance of doubt, if Executive terminates his employment with the Company to effect a transaction described in clause (i), (iii) or (iv) of this paragraph) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 75% of he shall not be entitled to the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person acquires more than 50% of the combined voting power of the Company's then outstanding securities; or
(iv) the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all the Company's assets.Severance
Appears in 1 contract
Termination and Severance. (a) Subject to Section 7(f) regarding a Change of Control, this Agreement may be terminated by either party without cause on six (6) months written notice to the other party. Subject to Section 7(f) regarding a Change of Control, this Agreement may be terminated by the Company immediately for cause by written notice to me. For purposes of this Section 7, cause for termination shall exist in the event of my dishonesty, chronic absenteeism, conviction of a felony, conviction of a misdemeanor involving moral turpitude, or material breach of this Agreement.
(b) To the maximum extent permitted by law, I hereby expressly authorize the Company in advance upon my termination to deduct from my final paycheck(s) and from my paid time off (PTO) check all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations).
(c) Upon termination of employment, I will execute and comply with the Employee Termination Certificate attached hereto as Exhibit C, and deliver to the Company all notes, data, tapes, lists, reference materials, sketches, drawings, memoranda, records and other documents which are in my possession or control belonging to the Company or relating to its business.
(d) Termination of this Agreement will not relieve me from my obligations under Sections 1(b), 2 and 3 of this Agreement, which, by their respective terms, continue beyond the termination of this Agreement.
(e) In the event of my death, this Agreement will terminate and all accrued and unpaid compensation and expenses, less all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations), will be payable to my estate.
(f) Notwithstanding any other provision of this Agreement to the contrary, at any time during the twelve-month period following a Change of Control (as hereinafter defined), (i) if the Company, with or without cause, terminates my employment or gives me notice of termination, or (ii) if I terminate my employment or give notice of termination by reason of a material breach by the Company of the terms of this Agreement (including but not limited to the terms set forth on Exhibit A hereto), at any time during the twelve-month period following a Change of Control (as hereinafter defined), then I shall receive, in addition to any other compensation provided for in this Agreement, a lump-sum severance payment in an amount equal to the Gross Annual Salary, less any income, excise, employment or other tax withholdings which the Company is required by law to deduct therefrom.
(g) For purposes of this Agreement, a Change in Control shall mean the satisfaction of the conditions set forth in any one of the following paragraphs:
(i) any person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") as modified and used in Sections 13(d) and 14(d) thereof, except that neither (A) the Company or any of ------ its ------ subsidiaries, (B) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (C) an underwriter temporarily holding securities pursuant to an offering of such securities, nor (D) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company shall be included in such term) (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its affiliates) representing 25% or more of the combined voting power of the Company's then outstanding securities; or
(ii) during any period of up to two consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board of Directors of the Company (the "Board") and any new director (other than a director designated by a Person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii) or (iv) of this paragraph) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 75% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person acquires more than 50% of the combined voting power of the Company's then outstanding securities; or
(iv) the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all the Company's assets.
Appears in 1 contract
Termination and Severance. (a) Subject If Employee dies during the term of this Agreement, (i) the Company shall pay his estate the compensation that would otherwise be payable to him for the month in which his death occurs; (ii) this Agreement shall be considered terminated on the last day of such month; and (iii) the Company shall cause any issued but unvested equity awards granted to Employee to immediately vest.
(b) If during the term of this Agreement Employee is prevented from performing his material duties by reason of illness or incapacity for a continuous period of 120 days, the Company may terminate this Agreement upon 30 days’ prior notice thereof to Employee or his duly appointed legal representative. For the purposes of this Section 5(b), a period of illness or incapacity shall be deemed “continuous” notwithstanding Employee’s performance of his duties during such period for continuous periods of less than 15 days in duration.
(c) The Company may terminate this Agreement For Cause for Employee’s (i) gross negligence; (ii) material breach of any obligation created by this Agreement; (iii) a violation of any policy, procedure or guideline of the Company, of any material injury to the economic or ethical welfare of the Company caused by Employee’s malfeasance, misfeasance, misconduct or inattention to Employee’s duties and responsibilities, or any other material failure to comply with the Company’s reasonable performance expectations, upon notice of same from Company and failure to cure such violation, injury or failure within 30 days, or (iv), misconduct, including but not limited to, commission of any felony, or of any misdemeanor involving dishonesty or moral turpitude, violation of any state or federal law in the course of his employment, or theft of the Company’s property or time.
(d) Either party may terminate this Agreement at any time for any or no reason upon 30 days’ notice to the other party.
(e) If Employee’s employment is terminated by the Company prior to the end of the term pursuant to any provision other than Section 5(a) or 5(c), then, provided Employee executes the release described in Section 5(g) below and complies with his obligations under the Confidential Information Agreement and Noncompete Agreement incorporated by reference in Sections 6 and 7 of this Agreement: (i) the Company shall pay as severance to Employee one year’s current base salary, in equal semi-monthly installments in accordance with the Company’s standard payroll practices, subject to all applicable deductions and withholdings; (ii) provided Employee timely elects, and remains eligible for, continued group health plan benefits to the extent authorized by and consistent with 29 U.S.C. § 1161 et seq. (“COBRA”), the Company shall pay COBRA premiums to maintain Employee’s health insurance coverage for one year; and (iii) the Company shall cause any issued but unvested equity scheduled to vest in the year of termination to immediately vest; provided, however, that this sentence shall not diminish the vesting contemplated by 5(f) below in connection with a Change of Control (collectively “Severance Benefits”). In the event of (x) a requested relocation of Employee’s principal workplace by more than 50 miles from Boulder following Employee’s relocation to Boulder; (y) any reduction of Employee’s salary to a rate below Employee’s initial annual salary; or (z) a material diminishment of Employee’s duties or position, Employee may elect to resign with Good Reason and shall be entitled to receive from Company the Severance Benefits listed in this paragraph. A resignation with Good Reason will not be deemed to have occurred unless Employee gives the Company written notice of the condition within 30 days after the condition comes into existence specifying all relevant facts and the Company fails to remedy the condition within 30 days after receipt of Employee’s written notice.
(f) If this Agreement is terminated by Company pursuant to Section 7(f5(d) regarding as a result of a Change of Control, this Agreement may be terminated by either party without cause on six (6) months written notice then all outstanding options granted to the other party. Subject to Section 7(f) regarding a Change Employee as of Control, this Agreement may be terminated by the Company immediately for cause by written notice to me. For purposes of this Section 7, cause for termination shall exist in the event of my dishonesty, chronic absenteeism, conviction of a felony, conviction of a misdemeanor involving moral turpitude, or material breach of this Agreement.
(b) To the maximum extent permitted by law, I hereby expressly authorize the Company in advance upon my termination to deduct from my final paycheck(s) and from my paid time off (PTO) check all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations).
(c) Upon termination of employment, I will execute and comply with the Employee Termination Certificate attached hereto as Exhibit C, and deliver to the Company all notes, data, tapes, lists, reference materials, sketches, drawings, memoranda, records and other documents which are in my possession or control belonging to the Company or relating to its business.
(d) Termination of this Agreement will not relieve me from my obligations under Sections 1(b), 2 and 3 of this Agreement, which, by their respective terms, continue beyond the termination of this Agreement.
(e) In the event of my death, this Agreement will terminate and all accrued and unpaid compensation and expenses, less all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations), will be payable to my estate.
(f) Notwithstanding any other provision of this Agreement to the contrary, if the Company, with or without cause, terminates my employment or gives me notice of termination, or if I terminate my employment or give notice of termination by reason of a material breach by the Company of the terms of this Agreement (including but not limited to the terms set forth on Exhibit A hereto), at any time during the twelve-month period following a such Change of Control shall immediately vest (as hereinafter defined), then I shall receive, in addition to any other compensation provided for in this Agreement, a lump-sum severance payment in an amount equal to the Gross Annual Salary, less any income, excise, employment or other tax withholdings which the Company is required by law to deduct therefrom.
(g) extent they are not already vested). For purposes of this Agreement, (i) a “Change in of Control shall mean the satisfaction of the conditions set forth in any one of the following paragraphs:
(i) any person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") as modified and used in Sections 13(d) and 14(d) thereof, except that neither (A) the Company consolidation or any of its ------ subsidiaries, (B) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (C) an underwriter temporarily holding securities pursuant to an offering of such securities, nor (D) a corporation owned, directly or indirectly, by the stockholders of merger involving the Company in substantially the same proportions as their ownership of stock of which the Company shall be included in such term) (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its affiliates) representing 25% or more of the combined voting power of the Company's then outstanding securities; or
(ii) during any period of up to two consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board of Directors of the Company (the "Board") and any new director (other than a director designated by a Person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii) or (iv) of this paragraph) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership of entity or any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 75% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) transaction in which no Person acquires more than 50% of the combined Company’s voting power is transferred or more than 50% of the Company's then outstanding securities’s assets are sold; orand (ii) a termination shall be deemed to be the “result of” a Change of Control if, without limiting the generality of such phrase, the Company terminates or is deemed to have terminated Employee pursuant to Section 5(d) of this Agreement during the period commencing three months prior to the occurrence (or expected occurrence) of a Change of Control and ending 12 months after the occurrence of a Change of Control. The foregoing acceleration provision shall be supplementary to, and shall not diminish any rights that Employee has under any other written agreement with the Company, including an option certificate or agreement.
(ivg) As a condition to receiving any severance payments and benefits under this Agreement, Employee shall execute and return to the Company, on or before the Release Expiration Date (as defined below), a full and complete release of all claims against the Company, its affiliates, and their respective employees, officers, directors, owners and members, in a form reasonably acceptable to the Company (the “Release”). For purposes of this Agreement, the “Release Expiration Date” means the date that is 28 days following the date that the Company timely delivers the Release to Employee, or in the event that Employee’s termination of employment is “in connection with an exit incentive or other employment termination program” (as such phrase is defined in the Age Discrimination in Employment Act of 1967), the date that is 52 days following such delivery date. Notwithstanding any provision to the contrary in this Agreement, (i) the shareholders of Company will deliver the Company approve a plan of complete liquidation of Release to Employee within 10 business days following the Company or an agreement for the sale or disposition by the Company of all or substantially all termination date, and the Company's assets’s failure to timely deliver a Release will constitute a waiver of any requirement to execute a Release; (ii) if Employee fails to execute the Release or the Release fails to become irrevocable on or before the Release Expiration Date, Employee will not be entitled to any severance payments under this Agreement; and (iii) payments under this Agreement shall commence on the first payroll period commencing after the Release becomes irrevocable, provided however, that if the termination date and the Release Expiration Date fall in two separate taxable years, any payments that are treated as nonqualified deferred compensation for purposes of Section 409A will be made in the later taxable year.
Appears in 1 contract
Termination and Severance. The Employment Period shall terminate on the first to occur of (a) Subject the then-current scheduled expiration date of the Employment Period, (b) your death or permanent disability (defined as your inability to Section 7(f) regarding perform normal duties for a Change period of Control, this Agreement may be terminated by either party without cause on six (6) months written notice to the other party. Subject to Section 7(f) regarding 90 consecutive days or for a Change total of Control, this Agreement may be terminated 120 days in any two-year period as determined in good faith by the Company immediately Board), (c) termination for cause Cause (as defined below) by written notice to methe Chief Executive Officer or the Board or (d) termination without Cause by the Chief Executive Officer or the Board. For purposes of this Section 7, cause for termination shall exist in In the event of my termination of the Employment Period pursuant to clause (d) and so long as you comply with the restrictions set forth in paragraphs 5 and 6 below, (i) the Company shall continue to pay your base salary for a period of nine months following the date of such termination or for the remainder of the Employment Period, whichever is greater, and (ii) you will receive the bonus, if any, you would have received if you had remained in the employment of the Company. Except as otherwise set forth in this paragraph 4 or pursuant to the terms of employee benefit plans in which you participate pursuant to paragraph 3 above, you shall not be entitled to any compensation or other payment from the Company following termination of the Employment Period. For purpose of this Agreement, "Cause" shall mean (i) your willful and repeated failure to comply with the lawful directives of the Chief Executive Officer and/or the Board, (ii) any criminal act or act of dishonesty, chronic absenteeismdisloyalty, conviction misconduct or moral turpitude by you that is injurious in any significant respect to the property, operations, business or reputation of a felony, conviction of a misdemeanor involving moral turpitudethe Company, or (iii) your material breach of this Agreement.
(b) To the maximum extent permitted by law, I hereby expressly authorize the Company in advance upon my termination to deduct from my final paycheck(s) and from my paid time off (PTO) check all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations).
(c) Upon termination of employment, I will execute and comply with the Employee Termination Certificate attached hereto as Exhibit C, and deliver to the Company all notes, data, tapes, lists, reference materials, sketches, drawings, memoranda, records and other documents which are in my possession or control belonging to the Company or relating to its business.
(d) Termination of this Agreement will not relieve me from my obligations under Sections 1(b), 2 and 3 of this Agreement, which, by their respective terms, continue beyond the termination of this Agreement.
(e) In the event of my death, this Agreement will terminate and all accrued and unpaid compensation and expenses, less all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations), will be payable to my estate.
(f) Notwithstanding any other provision of this Agreement to the contrary, if the Company, with or without cause, terminates my employment or gives me notice of termination, or if I terminate my employment or give notice of termination by reason of a material breach by the Company of the terms of this Agreement (including but not limited to the terms set forth on Exhibit A hereto), at any time during the twelve-month period following a Change of Control (as hereinafter defined), then I shall receive, in addition to any other compensation provided for in this Agreement, a lump-sum severance payment in an amount equal to the Gross Annual Salary, less any income, excise, employment or other tax withholdings which the Company is required by law to deduct therefrom.
(g) For purposes of this Agreement, a Change in Control shall mean the satisfaction of the conditions set forth in any one of the following paragraphs:
(i) any person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") as modified and used in Sections 13(d) and 14(d) thereof, except that neither (A) the Company or any of its ------ subsidiaries, (B) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (C) an underwriter temporarily holding securities pursuant to an offering of such securities, nor (D) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company shall be included in such term) (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its affiliates) representing 25% or more of the combined voting power of the Company's then outstanding securities; or
(ii) during any period of up to two consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board of Directors of the Company (the "Board") and any new director (other than a director designated by a Person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii) or (iv) of this paragraph) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 75% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person acquires more than 50% of the combined voting power of the Company's then outstanding securities; or
(iv) the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all the Company's assets.
Appears in 1 contract
Samples: Employment Agreement (Renaissance Cosmetics Inc /De/)
Termination and Severance. In the event your employment hereunder is terminated (ai) Subject by the Company for Cause or (ii) by you for any reason, the Company shall have no further obligations to Section 7(fyou except that you will be entitled to receive (x) regarding any accrued but unpaid salary through your termination date and (y) any expense reimbursements owed you through the date of termination. In the event your employment hereunder is terminated (i) by the Company other than for Cause (including your death or Disability) or (ii) automatically as a Change result of Control, this Agreement may be terminated by either party without cause on six (6) months written the Company's providing notice to you that automatic extension of the other party. Subject Employment Period shall not occur, you will be entitled to Section 7(freceive severance compensation equal to two (2) regarding a Change times your Base Salary in effect on the termination date, payable in arrears, in twenty-four (24) equal monthly installments commencing at the end of Controlthe calendar month in which the termination date occurs; provided, this Agreement may however, that (A) in the event your employment should be terminated by the Company immediately other than for cause by written notice Cause within six months following a Change in Control (defined below) or in anticipation of a Change in Control, the severance compensation referred to me. For purposes above shall be paid in one lump sum on the date of this Section 7such termination, cause for termination shall exist (B) in the event of my dishonesty, chronic absenteeism, conviction of a felony, conviction of a misdemeanor involving moral turpitude, or material breach of this Agreement.
(b) To the maximum extent permitted by law, I hereby expressly authorize the Company in advance upon my termination to deduct from my final paycheck(s) and from my paid time off (PTO) check all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations).
(c) Upon termination of employment, I will execute and comply with the Employee Termination Certificate attached hereto as Exhibit C, and deliver to the Company all notes, data, tapes, lists, reference materials, sketches, drawings, memoranda, records and other documents which are in my possession or control belonging to the Company or relating to its business.
(d) Termination of this Agreement will not relieve me from my obligations under Sections 1(b), 2 and 3 of this Agreement, which, by their respective terms, continue beyond the termination of this Agreement.
(e) In the event of my death, this Agreement will terminate and all accrued and unpaid compensation and expenses, less all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations), will your employment should be payable to my estate.
(f) Notwithstanding any other provision of this Agreement to the contrary, if the Company, with or without cause, terminates my employment or gives me notice of termination, or if I terminate my employment or give notice of termination by reason of a material breach terminated by the Company as a result of your Disability, then the terms severance compensation referred to above shall be reduced by the amount of this Agreement (including but not limited any disability insurance proceeds actually paid to the terms set forth on Exhibit A hereto), at any time you or for your benefit during the twelve-month period following a Change of Control (as hereinafter defined), then I shall receive, in addition to any other compensation provided for said time period. As used in this Agreement, a lump-sum severance payment in an amount equal to the Gross Annual Salary, less any income, excise, employment or other tax withholdings which the Company is required by law to deduct therefrom.
(g) For purposes of this Agreement, a Change in Control term "Cause" shall mean the satisfaction of the conditions set forth in any one of the following paragraphs:
(i) the willful and continued failure by you to substantially perform your duties hereunder (other than any person such willful or continued failure resulting from your incapacity due to physical or mental illness or physical injury), (as defined ii) the willful engaging by you in Section 3(a)(9misconduct which is materially injurious to the Company, monetarily or otherwise, (iii) your conviction of a felony by a court of competent jurisdiction, (iv) the breach of any of the Securities Exchange Act of 1934provisions hereof, as amended or (the "Exchange Act") as modified and used in Sections 13(d) and 14(d) thereof, except that neither (Av) the Company or violation by you of any of its ------ subsidiaries, (B) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (C) an underwriter temporarily holding securities pursuant to an offering of such securities, nor (D) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company shall be included in such term) (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its affiliates) representing 25% or more of the combined voting power of the Company's then outstanding securities; or
(ii) during any period of up policies, rules or regulations from time to two consecutive years (not including any period prior to the execution of time in effect. As used in this Agreement), individuals who at the beginning of such period constitute the Board of Directors of the Company (the term "Board") and any new director (other than a director designated by a Person who has entered into an agreement with the Company to effect a transaction described Change in clause (i), (iii) or (iv) of this paragraph) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation which would result Control" shall have that meaning set forth in the voting securities Key Energy Group, Inc. 1997 Incentive Plan. As used in this Agreement, the term "Disability" means total and permanent disability rendering you unable to perform your obligations and duties hereunder by reasons of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding physical or by being converted into voting securities of the surviving entity), in combination with the ownership of any trustee mental illness or other fiduciary holding securities under an employee benefit plan of the Company, at least 75% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person acquires more than 50% of the combined voting power of the Company's then outstanding securities; or
(iv) the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all the Company's assetsinjury.
Appears in 1 contract
Termination and Severance. (a) Subject If Employee dies during the term of this Agreement, (i) the Company shall pay his estate the compensation that would otherwise be payable to him for the month in which his death occurs; (ii) this Agreement shall be considered terminated on the last day of such month; and (iii) the Company shall cause any issued but unvested equity awards granted to Employee to immediately vest.
(b) If during the term of this Agreement Employee is prevented from performing his duties by reason of illness or incapacity for a continuous period of 120 days, the Company may terminate this Agreement upon 30 days’ prior notice thereof to Employee or his duly appointed legal representative. For the purposes of this Section 7(f5(b), a period of illness or incapacity shall be deemed “continuous” notwithstanding Employee’s performance of his duties during such period for continuous periods of less than 15 days in duration.
(c) regarding The Company may terminate this Agreement at any time, upon 10 days’ prior notice, for Employee’s (i) gross negligence; (ii) material breach of any obligation created by this Agreement; (iii) a violation of any policy, procedure or guideline of the Company, of any material injury to the economic or ethical welfare of the Company caused by Employee’s malfeasance, misfeasance, misconduct or inattention to Employee’s duties and responsibilities, or any other material failure to comply with the Company’s reasonable performance expectations, upon notice of same from Company and failure to cure such violation, injury or failure within 30 days, or (iv), misconduct, including but not limited to, commission of any felony, or of any misdemeanor involving dishonesty or moral turpitude, or violation of any state or federal law in the course of his employment; theft or misuse of the Company’s property or time.
(d) The Company may terminate this Agreement at any time for any or no reason upon 30 days’ notice to Employee.
(e) If this Agreement is terminated by the Company prior to the end of the term pursuant to any provision other than 5(a) or 5(c), then (i) the Company shall pay as severance to Employee one year’s current base salary, in equal monthly installments in accordance with the Company’s standard payroll practices, subject to all applicable deductions and withholdings; and (ii) the Company shall cause any issued but unvested options scheduled to vest in the year of termination to immediately vest; provided, however, that this sentence shall not diminish the vesting contemplated by 5(f) below in connection with a Change of Control. In the event of (x) reduction of Employee’s salary to a rate below the initial annual salary; or (y) material diminishment of Employee’s duties as Chief Medical Officer; or (z) consolidation or merger involving the Company in which the Company is not the surviving entity or any transaction in which more than 50% of the Company’s voting power is transferred or more than 50% of the Company’s assets are sold (collectively, this Agreement may be terminated by either party without cause on six (6) months written notice to the other party. Subject to Section 7(f) regarding a “Change of Control”), Employee may elect to treat such event, by notice of termination within 30 days of its occurrence, as a termination pursuant to 5(d). As a condition to receiving any severance payments under this Agreement may be terminated by Section 5, Employee shall execute a release reasonably acceptable to the Company immediately for cause and Employee, and shall comply with his obligations under the Noncompete Agreement and Confidentiality and Inventions Agreement incorporated by written notice to me. For purposes of this Section 7, cause for termination shall exist reference in the event of my dishonesty, chronic absenteeism, conviction of a felony, conviction of a misdemeanor involving moral turpitude, or material breach Sections 6 and 7 of this Agreement.
(bf) To the maximum extent permitted by law, I hereby expressly authorize the Company in advance upon my termination to deduct from my final paycheck(s) and from my paid time off (PTO) check all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations).
(c) Upon termination of employment, I will execute and comply with the Employee Termination Certificate attached hereto as Exhibit C, and deliver to the Company all notes, data, tapes, lists, reference materials, sketches, drawings, memoranda, records and other documents which are in my possession or control belonging to the Company or relating to its business.
(d) Termination of If this Agreement will not relieve me from my obligations under Sections 1(b), 2 and 3 is terminated pursuant to 5(d) as a result of this Agreement, which, by their respective terms, continue beyond the termination of this Agreement.
(e) In the event of my death, this Agreement will terminate and all accrued and unpaid compensation and expenses, less all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations), will be payable to my estate.
(f) Notwithstanding any other provision of this Agreement to the contrary, if the Company, with or without cause, terminates my employment or gives me notice of termination, or if I terminate my employment or give notice of termination by reason of a material breach by the Company of the terms of this Agreement (including but not limited to the terms set forth on Exhibit A hereto), at any time during the twelve-month period following a Change of Control (as hereinafter defined)Control, then I all outstanding options granted to Employee as of such Change of Control shall receive, in addition to any other compensation provided for in this Agreement, a lump-sum severance payment in an amount equal immediately vest (to the Gross Annual Salary, less any income, excise, employment or other tax withholdings which the Company is required by law to deduct therefrom.
(g) extent they are not already vested). For purposes of this Agreement, a termination shall be deemed to be the “result of” a Change in of Control shall mean if, without limiting the satisfaction generality of such phrase, the conditions set forth in any one of the following paragraphs:
(i) any person (as defined in Company terminates or is deemed to have terminated Employee pursuant to Section 3(a)(95(d) of this Agreement during the Securities Exchange Act of 1934, as amended (the "Exchange Act") as modified and used in Sections 13(d) and 14(d) thereof, except that neither (A) the Company or any of its ------ subsidiaries, (B) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (C) an underwriter temporarily holding securities pursuant to an offering of such securities, nor (D) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company shall be included in such term) (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its affiliates) representing 25% or more of the combined voting power of the Company's then outstanding securities; or
(ii) during any period of up to two consecutive years (not including any period commencing three months prior to the execution occurrence (or expected occurrence) of this Agreement)a Change of Control and ending 12 months after the occurrence of a Change of Control. The foregoing acceleration provision shall be supplementary to, individuals who at the beginning of such period constitute the Board of Directors of the Company (the "Board") and shall not diminish any new director (rights that Employee has under any other than a director designated by a Person who has entered into an written agreement with the Company to effect a transaction described in clause (i), (iii) or (iv) of this paragraph) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 75% of the combined voting power of the voting securities of the Company including an option certificate or such surviving entity outstanding immediately after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person acquires more than 50% of the combined voting power of the Company's then outstanding securities; or
(iv) the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all the Company's assetsagreement.
Appears in 1 contract
Termination and Severance. (a) Subject to Section 7(f) regarding a Change of Control, this Agreement may be terminated by either party without cause on six (6) months written notice to If Employee dies during the other party. Subject to Section 7(f) regarding a Change of Control, this Agreement may be terminated by the Company immediately for cause by written notice to me. For purposes of this Section 7, cause for termination shall exist in the event of my dishonesty, chronic absenteeism, conviction of a felony, conviction of a misdemeanor involving moral turpitude, or material breach term of this Agreement, the Company shall pay his estate the compensation that would otherwise be payable to him for the month in which his death occurs; (ii) this Agreement shall be considered terminated on the last day of such month; and (iii) the Company shall cause any issued but unvested equity awards granted to Employee to immediately vest.
(b) To If during the maximum extent permitted term of this Agreement Employee is prevented from performing his duties, after reasonable accommodation, by lawreason of illness or incapacity for a continuous period of 120 days, I hereby expressly authorize the Company may terminate this Agreement upon 30 days’ prior notice thereof to Employee or his duly appointed legal representative. For the purposes of this Section 5(b), a period of illness or incapacity shall be deemed “continuous” notwithstanding Employee’s performance of his duties during such period for continuous periods of less than 15 days in advance upon my termination duration. The reference to deduct from my final paycheck(sthe term “duties” in the first sentence of this Section 5(b) and from my paid time off (PTO) check all amounts I owe shall not include immaterial duties that have little impact on the Company (including but not limited to repayment Company; provided, however, that the determination of advances, loans or any other obligations)what is immaterial shall be in the reasonable discretion of the Company.
(c) Upon termination The Company may terminate this Agreement at any time, upon 10 days’ prior notice, for Employee’s (i) gross negligence in the performance of his duties, upon notice of same from Company and failure to cure within 30 days; (ii) intentional misconduct, including but not limited to, commission of any felony, or of any misdemeanor involving dishonesty or moral turpitude, or violation of any state or federal law in the course of his employment; or theft or intentional misuse of the Company’s property or time (other than immaterial misuse such as use of supplies such as staplers or paper for personal use); or (iii) material breach of any obligation created by this Agreement (including the Noncompete Agreement and Confidentiality and Inventions Agreement incorporated by reference in Sections 6 and 7 below), I will execute upon notice of same from Company and comply with the Employee Termination Certificate attached hereto as Exhibit C, and deliver failure to cure within 30 days. The reference to the Company all notesterm “duties” in the first sentence of (c)(i) above shall not include immaterial duties that have little impact on the Company; provided, datahowever, tapesthat the determination of what is immaterial shall be in the reasonable discretion of the Company. In addition, liststhe reference to “misconduct” in item (c)(ii) and “violations” of any state or federal law in (c)(ii) above shall not include immaterial acts and conduct, reference materialson the one hand, sketchesor immaterial violations, drawingson the other hand (such as traffic violations), memorandathat have little impact on the Company; provided, records and other documents which are however, that the determination of what is immaterial shall be in my possession or control belonging to the Company or relating to its businessreasonable discretion of the Company.
(d) Termination of The Company or Employee may terminate this Agreement will not relieve me at any time for any or no reason upon at least 30 days’ notice to the other. In the event that any one or more of the following in (i) through (v) occur: (i) Employee is removed from my obligations under Sections 1(bhis position as Chief Executive Officer of the Company, or his duties as Chief Executive Officer are materially diminished (including, without limitation, a diminution in Employee’s authority, duties, responsibilities or CEO title), 2 and 3 (ii) Employee is not elected to serve as a member of the Board of Directors during the term of this Agreement, which(iii) a material diminution of Employee’s base salary, (iv) a change in the geographic location of Employee’s primary place of employment of greater than fifty (50) miles, (v) the Company materially breaches any of its obligations to Employee pursuant to this Agreement and such breach is not cured within thirty days of notice (including, without limitation, a failure to issue the securities contemplated by Section 3(c) above), Employee may elect to treat any such event, by their respective termsnotice of termination within 30 days of its occurrence, continue beyond as a termination by the termination of Company pursuant to this AgreementSection 5(d).
(e) In the event of my death, If this Agreement will terminate and all accrued and unpaid compensation and expenses, less all amounts I owe is terminated by the Company (including but not limited or deemed to repayment be terminated by the Company) pursuant to Section 5(b) or 5(d), then, on the later of: (1) the date that is sixty (60) days following Employee’s termination; or, if applicable, (2) the first date such amount may be paid to Employee in order to comply with the requirements of advances, loans Treas. Reg. § 1.409A-3(i)(2) (or any other obligationssuccessor provision) issued under Section 409A of the Code (“Section 409A”), will be payable the Company shall: (i) pay as severance to my estate.
Employee one year’s current base salary (f) Notwithstanding any other provision of this Agreement to the contrary, if the Company, with or without cause, terminates my employment or gives me notice of termination, or if I terminate my employment or give notice of provided that a termination by reason of a material breach by the Company of the terms of this Agreement (including but not limited pursuant to the terms set forth on Exhibit A hereto), at any time during the twelve-month period following Section 5(d) resulting from a Change of Control (as hereinafter defined), then I defined in Section 5(f) shall receive, in addition to any other compensation provided for in this Agreement, a lump-sum cause the severance payment to be increased to two years’ current base salary) in a lump sum subject to all applicable deductions and withholdings; (ii) pay to Employee an amount equal to the Gross Annual Salarytarget Performance Bonus for the year of termination (provided that a termination by the Company pursuant to Section 5(d) resulting from a Change of Control defined in Section 5(f) shall cause the payment contemplated by this (ii) to be increased to such target Performance Bonus multiplied by two); and (iii) pay to Employee a lump sum amount, less any incomewhich after the application of all deductions and withholdings, exciseequals the total cost for continuation of the health insurance benefits for Employee and, employment or other tax withholdings if applicable, his eligible dependents under COBRA at substantially the same level of coverage in effect immediately preceding such termination for 12 months following the last day of the month in which the termination occurs. Employee’s unvested equity scheduled to vest in the year of termination shall be deemed vested in connection with a termination by Company is required pursuant to Section 5(d); provided, however, that this sentence shall not diminish the 100% vesting contemplated by law 5(f) below in connection with a Change of Control. As a condition to deduct therefromreceiving any severance payments under this Section, Employee shall execute a release reasonably acceptable to the Company and Employee, and shall comply with his obligations under the Noncompete Agreement and Confidentiality and Inventions Agreement incorporated by reference in Sections 6 and 7 of this Agreement (it being agreed that the Noncompete Agreement shall not be applicable should Employee waive rights to such severance benefits). A failure of the Company to renew this Agreement at the end of the initial term or any renewal period shall be treated as a termination by the Company pursuant to Section 5(d) resulting in the above benefits contemplated by this Section 5(e). For the avoidance of doubt, Employee’s rights to the payments contemplated in this Section 5(e) shall not be diminished solely as a result of Employee taking subsequent employment.
(gf) For purposes of this Agreement, a the term “Change in Control of Control” shall mean the satisfaction of the conditions set forth in any one of the following paragraphs:
either (i) any person (as defined in Section 3(a)(9) the occurrence of the Securities Exchange Act of 1934, as amended (the "Exchange Act") as modified and used in Sections 13(d) and 14(d) thereof, except that neither (A) the Company a consolidation or any of its ------ subsidiaries, (B) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (C) an underwriter temporarily holding securities pursuant to an offering of such securities, nor (D) a corporation owned, directly or indirectly, by the stockholders of merger involving the Company in substantially the same proportions as their ownership of stock of which the Company shall be included in such term) (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its affiliates) representing 25% or more of the combined voting power of the Company's then outstanding securities; or
(ii) during any period of up to two consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board of Directors of the Company (the "Board") and any new director (other than a director designated by a Person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii) or (iv) of this paragraph) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership of entity or any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 75% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) transaction in which no Person acquires more than 50% of the combined Company’s voting power is transferred or more than 50% of either the fair market value or book value of the Company's then outstanding securities; or
’s assets are sold or (ivii) the shareholders a majority of members of the Company approve Board of directors are replaced during any 12-month period by directors whose appointment or election is not endorsed by a plan of complete liquidation majority of the Company members of the Board before the date of the appointment or an agreement for election. Upon the sale occurrence of Change of Control, the vesting of 100% of outstanding and unvested equity awards granted to Employee as of the date of such event shall be accelerated to occur immediately upon such event. For purposes of this Agreement (including Sections 5(d) and 5(e)), a termination shall be deemed to be “in relation to” or disposition by the “result of” a Change of Control if, without limiting the generality of such phrases, the Company terminates or is deemed to have terminated Employee pursuant to Section 5(d) of all this Agreement during the period commencing three months prior to the occurrence (or substantially all expected occurrence) of a Change of Control and ending 12 months after the Company's assetsoccurrence of a Change of Control.
Appears in 1 contract
Termination and Severance. (a) Subject to Section 7(f) regarding a Change of Control, this Agreement may be terminated by either party without cause on six (6) months written notice to the other party. Subject to Section 7(f) regarding a Change of Control, this Agreement may be terminated by the Company immediately for cause by written notice to me. For purposes of this Section 7, cause for termination shall exist in the event of my dishonesty, chronic absenteeism, conviction of a felony, conviction of a misdemeanor involving moral turpitude, or material breach of this Agreement.
(b) To the maximum extent permitted by law, I hereby expressly authorize the Company in advance upon my termination to deduct from my final paycheck(s) and from my paid time off (PTO) check all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations).
(c) Upon termination of employment, I will execute and comply with the Employee Termination Certificate attached hereto as Exhibit C, and deliver to the Company all notes, data, tapes, lists, reference materials, sketches, drawings, memoranda, records and other documents which are in my possession or control belonging to the Company or relating to its business.
(d) Termination of this Agreement will not relieve me from my obligations under Sections 1(b), 2 and 3 of this Agreement, which, by their respective terms, continue beyond the termination of this Agreement.
(e) In the event of my death, this Agreement will terminate and all accrued and unpaid compensation and expenses, less all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations), will be payable to my estate.
(f) Notwithstanding any other provision of this Agreement to the contrary, at any time during the twelve-month period following a Change of Control (as hereinafter defined), (i) if the Company, with or without cause, terminates my employment or gives me notice of termination, or (ii) if I terminate my employment or give notice of termination by reason of a material breach by the Company of the terms of this Agreement (including but not limited to the terms set forth on Exhibit A hereto), at any time during the twelve-month period following a Change of Control (as hereinafter defined), then I shall receive, in addition to any other compensation provided for in this Agreement, a lump-sum severance payment in an amount equal to the Gross Annual Salary, less any income, excise, employment or other tax withholdings which the Company is required by law to deduct therefrom.
(g) For purposes of this Agreement, a Change in Control shall mean the satisfaction of the conditions set forth in any one of the following paragraphs:
(i) any person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") as modified and used in Sections 13(d) and 14(d) thereof, except that neither (A) the Company or any of its ------ subsidiaries, (B) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (C) an underwriter temporarily holding securities pursuant to an offering of such securities, nor (D) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company shall be included in such term) (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its affiliates) representing 25% or more of the combined voting power of the Company's then outstanding securities; or
(ii) during any period of up to two consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board of Directors of the Company (the "Board") and any new director (other than a director designated by a Person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii) or (iv) of this paragraph) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 75% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person acquires more than 50% of the combined voting power of the Company's then outstanding securities; or
(iv) the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all the Company's assets.
Appears in 1 contract
Termination and Severance. In the event your employment hereunder is terminated (ai) Subject by the Company for Cause or (ii) by you for any reason, the Company shall have no further obligations to Section 7(fyou except that you will be entitled to receive (x) regarding any accrued but unpaid salary through your termination date and (y) any expense reimbursements owed you through the date of termination. In the event your employment hereunder is terminated (i) by the Company other than for Cause (including your death or Disability) or (ii) automatically as a Change result of Control, this Agreement may be terminated by either party without cause on six (6) months written the Company's providing notice to you that automatic extension of the other party. Subject Employment Period shall not occur, you will be entitled to Section 7(freceive severance compensation equal to one (1) regarding a Change times your Base Salary in effect on the termination date, payable in arrears, in twelve (12) equal monthly installments commencing at the end of Controlthe calendar month in which the termination date occurs; provided, this Agreement may however, that (A) in the event your employment should be terminated by the Company immediately other than for cause by written notice Cause within six months following a Change in Control (defined below) or in anticipation of a Change in Control, the severance compensation referred to me. For purposes above shall be paid in one lump sum on the date of this Section 7such termination, cause for termination shall exist (B) in the event of my dishonesty, chronic absenteeism, conviction of a felony, conviction of a misdemeanor involving moral turpitude, or material breach of this Agreement.
(b) To the maximum extent permitted by law, I hereby expressly authorize the Company in advance upon my termination to deduct from my final paycheck(s) and from my paid time off (PTO) check all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations).
(c) Upon termination of employment, I will execute and comply with the Employee Termination Certificate attached hereto as Exhibit C, and deliver to the Company all notes, data, tapes, lists, reference materials, sketches, drawings, memoranda, records and other documents which are in my possession or control belonging to the Company or relating to its business.
(d) Termination of this Agreement will not relieve me from my obligations under Sections 1(b), 2 and 3 of this Agreement, which, by their respective terms, continue beyond the termination of this Agreement.
(e) In the event of my death, this Agreement will terminate and all accrued and unpaid compensation and expenses, less all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations), will your employment should be payable to my estate.
(f) Notwithstanding any other provision of this Agreement to the contrary, if the Company, with or without cause, terminates my employment or gives me notice of termination, or if I terminate my employment or give notice of termination by reason of a material breach terminated by the Company as a result of your Disability, then the terms severance compensation referred to above shall be reduced by the amount of this Agreement (including but not limited any disability insurance proceeds actually paid to the terms set forth on Exhibit A hereto), at any time you or for your benefit during the twelve-month period following a Change of Control (as hereinafter defined), then I shall receive, in addition to any other compensation provided for said time period. As used in this Agreement, a lump-sum severance payment in an amount equal to the Gross Annual Salary, less any income, excise, employment or other tax withholdings which the Company is required by law to deduct therefrom.
(g) For purposes of this Agreement, a Change in Control term "Cause" shall mean the satisfaction of the conditions set forth in any one of the following paragraphs:
(i) the willful and continued failure by you to substantially perform your duties hereunder (other than any person such willful or continued failure resulting from your incapacity due to physical or mental illness or physical injury), (as defined ii) the willful engaging by you in Section 3(a)(9misconduct which is injurious to the Company, monetarily or otherwise, (iii) your conviction of a felony by a court of competent jurisdiction, (iv) the breach of any of the Securities Exchange Act of 1934provisions hereof, as amended or (the "Exchange Act") as modified and used in Sections 13(d) and 14(d) thereof, except that neither (Av) the Company or violation by you of any of its ------ subsidiaries, (B) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (C) an underwriter temporarily holding securities pursuant to an offering of such securities, nor (D) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company shall be included in such term) (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its affiliates) representing 25% or more of the combined voting power of the Company's then outstanding securities; or
(ii) during any period of up policies, rules or regulations from time to two consecutive years (not including any period prior to the execution of time in effect. As used in this Agreement), individuals who at the beginning of such period constitute the Board of Directors of the Company (the term "Board") and any new director (other than a director designated by a Person who has entered into an agreement with the Company to effect a transaction described Change in clause (i), (iii) or (iv) of this paragraph) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation which would result Control" shall have that meaning set forth in the voting securities Key Energy Group, Inc. 1997 Incentive Plan. As used in this Agreement, the term "Disability" means total and permanent disability rendering you unable to perform your obligations and duties hereunder by reasons of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding physical or by being converted into voting securities of the surviving entity), in combination with the ownership of any trustee mental illness or other fiduciary holding securities under an employee benefit plan of the Company, at least 75% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person acquires more than 50% of the combined voting power of the Company's then outstanding securities; or
(iv) the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all the Company's assetsinjury.
Appears in 1 contract
Termination and Severance. (a) Subject If Employee dies during the term of this Agreement, (i) the Company shall pay his estate the compensation that would otherwise be payable to him for the month in which his death occurs; (ii) this Agreement shall be considered terminated on the last day of such month; and (iii) the Company shall cause any issued but unvested equity awards granted to Employee to immediately vest.
(b) If during the term of this Agreement Employee is prevented from performing his material duties by reason of illness or incapacity for a continuous period of 120 days, the Company may terminate this Agreement upon 30 days’ prior notice thereof to Employee or his duly appointed legal representative. For the purposes of this Section 5(b), a period of illness or incapacity shall be deemed “continuous” notwithstanding Employee’s performance of his duties during such period for continuous periods of less than 15 days in duration.
(c) The Company may terminate this Agreement For Cause for Employee’s (i) gross negligence; (ii) material breach of any obligation created by this Agreement; (iii) a violation of any policy, procedure or guideline of the Company, of any material injury to the economic or ethical welfare of the Company caused by Employee’s malfeasance, misfeasance, misconduct or inattention to Employee’s duties and responsibilities, or any other material failure to comply with the Company’s reasonable performance expectations, upon notice of same from Company and failure to cure such violation, injury or failure within 30 days, or (iv), misconduct, including but not limited to, commission of any felony, or of any misdemeanor involving dishonesty or moral turpitude, violation of any state or federal law in the course of his employment, or theft of the Company’s property or time.
(d) Either party may terminate this Agreement at any time for any or no reason upon 30 days’ notice to the other party.
(e) If Employee’s employment is terminated by the Company prior to the end of the term pursuant to any provision other than 5(c), then, provided Employee (or Employee’s estate) executes the release described in Section 5(g) below and complies with his obligations under the Confidential Information Agreement and Noncompete Agreement incorporated by reference in Section 6 and 7 of this Agreement: (i) the Company shall pay as severance to Employee one year’s current base salary, in equal monthly installments in accordance with the Company’s standard payroll practices, subject to all applicable deductions and withholdings; (ii) provided Employee timely elects, and remains eligible for, continued group health plan benefits to the extent authorized by and consistent with 29 U.S.C. § 1161 et seq. (“COBRA”), the Company shall pay COBRA premiums to maintain Employee’s health insurance coverage for one year, and (ii) the Company shall cause any issued but unvested options and RSUs scheduled to vest in the year of termination to immediately vest; provided, however, that this sentence shall not diminish the vesting contemplated by 5(f) below in connection with a Change of Control (collectively “Severance Benefits”). In the event of (x) a requested relocation of Employee’s principal workplace by more than 50 miles from Boston following Employee’s relocation to Boston; (y) any reduction of Employee’s salary ; or (z) material diminishment of Employee’s duties or position, Employee may elect to resign with Good Reason and shall be entitled to receive from Company the Severance Benefits listed in this paragraph. A resignation with Good Reason will not be deemed to have occurred unless Employee gives the Company written notice of the condition within 30 days after the condition comes into existence specifying all relevant facts and the Company fails to remedy the condition within 30 days after receipt of Employee’s written notice.
(f) If this Agreement is terminated by Company pursuant to Section 7(f5(d) regarding as a result of a Change of Control, this Agreement may be terminated by either party without cause on six (6) months written notice then all outstanding options granted to the other party. Subject to Section 7(f) regarding a Change Employee as of Control, this Agreement may be terminated by the Company immediately for cause by written notice to me. For purposes of this Section 7, cause for termination shall exist in the event of my dishonesty, chronic absenteeism, conviction of a felony, conviction of a misdemeanor involving moral turpitude, or material breach of this Agreement.
(b) To the maximum extent permitted by law, I hereby expressly authorize the Company in advance upon my termination to deduct from my final paycheck(s) and from my paid time off (PTO) check all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations).
(c) Upon termination of employment, I will execute and comply with the Employee Termination Certificate attached hereto as Exhibit C, and deliver to the Company all notes, data, tapes, lists, reference materials, sketches, drawings, memoranda, records and other documents which are in my possession or control belonging to the Company or relating to its business.
(d) Termination of this Agreement will not relieve me from my obligations under Sections 1(b), 2 and 3 of this Agreement, which, by their respective terms, continue beyond the termination of this Agreement.
(e) In the event of my death, this Agreement will terminate and all accrued and unpaid compensation and expenses, less all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations), will be payable to my estate.
(f) Notwithstanding any other provision of this Agreement to the contrary, if the Company, with or without cause, terminates my employment or gives me notice of termination, or if I terminate my employment or give notice of termination by reason of a material breach by the Company of the terms of this Agreement (including but not limited to the terms set forth on Exhibit A hereto), at any time during the twelve-month period following a such Change of Control shall immediately vest (as hereinafter defined), then I shall receive, in addition to any other compensation provided for in this Agreement, a lump-sum severance payment in an amount equal to the Gross Annual Salary, less any income, excise, employment or other tax withholdings which the Company is required by law to deduct therefrom.
(g) extent they are not already vested). For purposes of this Agreement, (i) a “Change in of Control shall mean the satisfaction of the conditions set forth in any one of the following paragraphs:
(i) any person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") as modified and used in Sections 13(d) and 14(d) thereof, except that neither (A) the Company consolidation or any of its ------ subsidiaries, (B) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (C) an underwriter temporarily holding securities pursuant to an offering of such securities, nor (D) a corporation owned, directly or indirectly, by the stockholders of merger involving the Company in substantially the same proportions as their ownership of stock of which the Company shall be included in such term) (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its affiliates) representing 25% or more of the combined voting power of the Company's then outstanding securities; or
(ii) during any period of up to two consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board of Directors of the Company (the "Board") and any new director (other than a director designated by a Person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii) or (iv) of this paragraph) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership of entity or any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 75% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) transaction in which no Person acquires more than 50% of the combined Company’s voting power is transferred or more than 50% of the Company's then outstanding securities’s assets are sold; orand (ii) a termination shall be deemed to be the “result of” a Change of Control if, without limiting the generality of such phrase, the Company terminates or is deemed to have terminated Employee pursuant to Section 5(d) or (e) of this Agreement, respectively, during the period commencing three months prior to the occurrence (or expected occurrence) of a Change of Control and ending 12 months after the occurrence of a Change of Control. The foregoing acceleration provision shall be supplementary to, and shall not diminish any rights that Employee has under any other written agreement with the Company, including an option certificate or agreement.
(ivg) As a condition to receiving any severance payments and benefits under this Agreement, Employee shall execute and return to the Company, on or before the Release Expiration Date (as defined below), a full and complete release of all claims against the Company, its affiliates, and their respective employees, officers, directors, owners and members, in a form reasonably acceptable to the Company (the “Release”). For purposes of this Agreement, the “Release Expiration Date” means the date that is 28 days following the date that the Company timely delivers the Release to Employee, or in the event that Employee’s termination of employment is “in connection with an exit incentive or other employment termination program” (as such phrase is defined in the Age Discrimination in Employment Act of 1967), the date that is 52 days following such delivery date. Notwithstanding any provision to the contrary in this Agreement, (i) the shareholders of Company will deliver the Company approve a plan of complete liquidation of Release to Employee within 10 business days following the Company or an agreement for the sale or disposition by the Company of all or substantially all Termination Date, and the Company's assets’s failure to timely deliver a Release will constitute a waiver of any requirement to execute a Release; (ii) if Employee fails to execute the Release or the Release fails to become irrevocable on or before the Release Expiration Date, Employee will not be entitled to any severance payments under this Agreement; and (iii) payments under this Agreement shall commence on the first payroll period commencing after the Release becomes irrevocable, provided however, that if the Termination Date and the Release Expiration Date fall in two separate taxable years, any payments that are treated as nonqualified deferred compensation for purposes of Section 409A will be made in the later taxable year.
Appears in 1 contract
Termination and Severance. (a) Subject If Employee dies during the term of this Agreement, (i) the Company shall pay her estate the compensation that would otherwise be payable to her for the month in which her death occurs; (ii) this Agreement shall be considered terminated on the last day of such month; and (iii) the Company shall cause any issued but unvested equity awards granted to Employee to immediately vest.
(b) If during the term of this Agreement Employee is prevented from performing her material duties by reason of illness or incapacity for a continuous period of 120 days, the Company may terminate this Agreement upon 30 days’ prior notice thereof to Employee or her duly appointed legal representative. For the purposes of this Section 5(b), a period of illness or incapacity shall be deemed “continuous” notwithstanding Employee’s performance of her duties during such period for continuous periods of less than 15 days in duration.
(c) The Company may terminate this Agreement For Cause for Employee’s (i) gross negligence; (ii) material breach of any obligation created by this Agreement; (iii) a violation of any policy, procedure or guideline of the Company, of any material injury to the economic or ethical welfare of the Company caused by Employee’s malfeasance, misfeasance, misconduct or inattention to Employee’s duties and responsibilities, or any other material failure to comply with the Company’s reasonable performance expectations, upon notice of same from Company and failure to cure such violation, injury or failure within 30 days, or (iv), misconduct, including but not limited to, commission of any felony, or of any misdemeanor involving dishonesty or moral turpitude, violation of any state or federal law in the course of her employment, or theft of the Company’s property or time.
(d) Either party may terminate this Agreement at any time for any or no reason upon 30 days’ notice to the other party.
(e) If Employee’s employment is terminated by the Company prior to the end of the term pursuant to any provision other than Section 5(a) or 5(c), then, provided Employee executes the release described in Section 5(g) below and complies with her obligations under the Confidential Information Agreement and Noncompete Agreement incorporated by reference in Sections 6 and 7 of this Agreement: (i) the Company shall pay as severance to Employee one year’s current base salary, in equal semi-monthly installments in accordance with the Company’s standard payroll practices, subject to all applicable deductions and withholdings; and (ii) the Company shall cause any issued but unvested equity scheduled to vest in the year of termination to immediately vest; provided, however, that this sentence shall not diminish the vesting contemplated by 5(f) below in connection with a Change of Control (collectively “Severance Benefits”). In the event of (x) a requested relocation of Employee’s principal workplace by more than 50 miles from Boulder following Employee’s relocation to Boulder; (y) any reduction of Employee’s salary to a rate below Employee’s initial annual salary; or (z) a material diminishment of Employee’s duties or position, Employee may elect to resign with Good Reason and shall be entitled to receive from Company the Severance Benefits listed in this paragraph. A resignation with Good Reason will not be deemed to have occurred unless Employee gives the Company written notice of the condition within 30 days after the condition comes into existence specifying all relevant facts and the Company fails to remedy the condition within 30 days after receipt of Employee’s written notice.
(f) If this Agreement is terminated by Company pursuant to Section 7(f5(d) regarding as a result of a Change of Control, this Agreement may be terminated by either party without cause on six (6) months written notice then all outstanding options granted to the other party. Subject to Section 7(f) regarding a Change Employee as of Control, this Agreement may be terminated by the Company immediately for cause by written notice to me. For purposes of this Section 7, cause for termination shall exist in the event of my dishonesty, chronic absenteeism, conviction of a felony, conviction of a misdemeanor involving moral turpitude, or material breach of this Agreement.
(b) To the maximum extent permitted by law, I hereby expressly authorize the Company in advance upon my termination to deduct from my final paycheck(s) and from my paid time off (PTO) check all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations).
(c) Upon termination of employment, I will execute and comply with the Employee Termination Certificate attached hereto as Exhibit C, and deliver to the Company all notes, data, tapes, lists, reference materials, sketches, drawings, memoranda, records and other documents which are in my possession or control belonging to the Company or relating to its business.
(d) Termination of this Agreement will not relieve me from my obligations under Sections 1(b), 2 and 3 of this Agreement, which, by their respective terms, continue beyond the termination of this Agreement.
(e) In the event of my death, this Agreement will terminate and all accrued and unpaid compensation and expenses, less all amounts I owe the Company (including but not limited to repayment of advances, loans or any other obligations), will be payable to my estate.
(f) Notwithstanding any other provision of this Agreement to the contrary, if the Company, with or without cause, terminates my employment or gives me notice of termination, or if I terminate my employment or give notice of termination by reason of a material breach by the Company of the terms of this Agreement (including but not limited to the terms set forth on Exhibit A hereto), at any time during the twelve-month period following a such Change of Control shall immediately vest (as hereinafter defined), then I shall receive, in addition to any other compensation provided for in this Agreement, a lump-sum severance payment in an amount equal to the Gross Annual Salary, less any income, excise, employment or other tax withholdings which the Company is required by law to deduct therefrom.
(g) extent they are not already vested). For purposes of this Agreement, (i) a “Change in of Control shall mean the satisfaction of the conditions set forth in any one of the following paragraphs:
(i) any person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") as modified and used in Sections 13(d) and 14(d) thereof, except that neither (A) the Company consolidation or any of its ------ subsidiaries, (B) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (C) an underwriter temporarily holding securities pursuant to an offering of such securities, nor (D) a corporation owned, directly or indirectly, by the stockholders of merger involving the Company in substantially the same proportions as their ownership of stock of which the Company shall be included in such term) (a "Person") is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its affiliates) representing 25% or more of the combined voting power of the Company's then outstanding securities; or
(ii) during any period of up to two consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board of Directors of the Company (the "Board") and any new director (other than a director designated by a Person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii) or (iv) of this paragraph) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership of entity or any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 75% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) transaction in which no Person acquires more than 50% of the combined Company’s voting power is transferred or more than 50% of the Company's then outstanding securities’s assets are sold; orand (ii) a termination shall be deemed to be the “result of” a Change of Control if, without limiting the generality of such phrase, the Company terminates or is deemed to have terminated Employee pursuant to Section 5(d) of this Agreement during the period commencing three months prior to the occurrence (or expected occurrence) of a Change of Control and ending 12 months after the occurrence of a Change of Control. The foregoing acceleration provision shall be supplementary to, and shall not diminish any rights that Employee has under any other written agreement with the Company, including an option certificate or agreement.
(ivg) As a condition to receiving any severance payments and benefits under this Agreement, Employee shall execute and return to the shareholders of Company, on or before the Company approve Release Expiration Date (as defined below), a plan of full and complete liquidation of the Company or an agreement for the sale or disposition by the Company release of all or substantially all the Company's assets.claims against the
Appears in 1 contract
