Termination by the Company without Cause or by Executive for Good Reason in Connection with a Change in Control. In the event Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason pursuant to Section 4(e) hereof and such termination occurs upon, or within one (1) year immediately following, a “Change in Control” (as defined below), Executive shall be entitled (without duplication) to the payments and benefits described in Section 4(e) hereof, except that, solely in the case of an amount otherwise payable under Section 4(e)(ii) hereof, such amount shall be multiplied by two (2) (i.e., an amount equal to two (2) multiplied by the sum of Executive’s base salary and Executive’s Severance Bonus Amount, without duplication) and such amount shall be payable over a period of 24 months after termination in accordance with Section 4(h) of this Agreement; provided, however, to the extent that such amount under Section 4(e)(ii) is exempt from Section 409A and/or if such Change in Control constitutes a change in ownership, change in effective control or a change in ownership of a substantial portion of the assets of SGC under Regulation Section 1.409A-3(i)(5), such amount otherwise payable under Section 4(e)(ii) hereof shall be paid in a lump sum in accordance with Section 4(h) of this Agreement. Notwithstanding the foregoing, payments pursuant to this Section 4(f) shall be reduced by the amount necessary, if any, to ensure that the aggregate compensation to be received by the Executive in connection with such Change in Control does not constitute a “parachute payment,” as such term is defined in 26 U.S.C. § 280G. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if: (i) any “person” as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and as used in Sections 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) of the Exchange Act but excluding SGC and any subsidiary or affiliate and any employee benefit plan sponsored or maintained by SGC or any subsidiary or affiliate (including any trustee of such plan acting as trustee) or any current stockholder of 20% or more of the outstanding common stock of SGC, directly or indirectly, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of securities of SGC representing at least 40% of the combined voting power of the SGC’s then-outstanding securities; (ii) the stockholders of SGC approve a merger, consolidation, recapitalization, or reorganization of SGC, or a reverse stock split of any class of voting securities of SGC, or the consummation of any such transaction if stockholder approval is not obtained, other than any such transaction that would result in at least 60% of the total voting power represented by the voting securities of SGC or the surviving entity outstanding immediately after such transaction being beneficially owned by persons who together beneficially owned at least 80% of the combined voting power of the voting securities of SGC outstanding immediately prior to such transaction; provided that, for purposes of this Section 4(f), such continuity of ownership (and preservation of relative voting power) shall be deemed to be satisfied if the failure to meet such 60% threshold is due solely to the acquisition of voting securities by an employee benefit plan of SGC or such surviving entity or of any subsidiary of SGC or such surviving entity; (iii) the stockholders of SGC approve a plan of complete liquidation of SGC, an agreement for the sale or disposition by SGC of all or substantially all of its assets (or any transaction having a similar effect); or (iv) during any period of two (2) consecutive years, individuals who at the beginning of such period constitute the Board, together with 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), (ii) or (iii) above) whose election by the Board or nomination for election by SGC’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 at least a majority of the Board.
Appears in 2 contracts
Samples: Employment Agreement (Scientific Games Corp), Employment Agreement (Scientific Games Corp)
Termination by the Company without Cause or by Executive for Good Reason in Connection with a Change in Control. In the event Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason pursuant to Section 4(e5(e) hereof and such termination occurs upon, or within one (1) year immediately following, a “Change in Control” (as defined below), Executive shall be entitled (without duplication) to the payments and benefits described in Section 4(e5(e) hereof, except that, solely in the case of an amount otherwise payable under Section 4(e)(ii5(e)(ii) hereof, such amount the multiplier referred to in Section 5(e)(ii)(A) hereof shall be multiplied by three (3) (instead of two (2) (i.e., an amount equal to two (2) multiplied by the sum of Executive’s base salary and Executive’s Severance Bonus Amount, without duplication)) and such amount shall be payable over a period of 24 thirty-six (36) months after termination in accordance with Section 4(h5(g) of this Agreement; provided, however, to the extent that such amount under Section 4(e)(ii5(e)(ii) is exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and applicable administrative guidance and regulations (“Section 409A”) and/or if such Change in Control constitutes a change in ownership, change in effective control or a change in ownership of a substantial portion of the assets of SGC the Company under Regulation Section 1.409A-3(i)(5), such amount otherwise payable under Section 4(e)(ii5(e)(ii) hereof shall be paid in a lump sum in accordance with Section 4(h5(g) of this Agreement. Notwithstanding the foregoing, payments pursuant to foregoing provisions of this Section 4(f) shall be reduced by the amount necessary5(f), if anyany payment or right accruing under this Agreement (without application of this subsection), either alone or together with other payments or rights accruing to ensure that Executive from the aggregate compensation to be received by Company or its affiliates (the Executive in connection with such Change in Control does not “Total Payments”) would constitute a “parachute payment,” as such term is defined in 26 U.S.C. § 280G. For purposes 280G of this Agreementthe Code and regulations thereunder, a “Change in Control” such payment or right shall be deemed reduced to have occurred if: the largest amount or greatest right that will result in no portion of the amount payable or right accruing under this Agreement being subject to an excise tax under Section 4999 of the Code or being disallowed as a deduction under Section 280G of the Code, provided that Executive may elect by written notice to the Company that no such reduction occur if after reduction for any applicable federal excise tax imposed by Section 4999 of the Code and federal income tax imposed by the Code, the Total Payments accruing to Executive would be greater than the amount of the Total Payments as reduced (if applicable) pursuant to this subsection after reduction for federal income taxes. Executive shall cooperate in good faith with the Company in providing the necessary information for making a determination of the applicability of Section 280G. The reduction of Total Payments, if applicable, shall be effected in the following order (unless Executive, to the extent permitted by Section 409A, elects another method of reduction by written notice to the Company prior to the Section 280G event): (i) any “person” as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and as used in Sections 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) of the Exchange Act but excluding SGC and any subsidiary or affiliate and any employee benefit plan sponsored or maintained by SGC or any subsidiary or affiliate (including any trustee of such plan acting as trustee) or any current stockholder of 20% or more of the outstanding common stock of SGC, directly or indirectly, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of securities of SGC representing at least 40% of the combined voting power of the SGC’s then-outstanding securitiescash severance payments; (ii) the stockholders of SGC approve a merger, consolidation, recapitalization, or reorganization of SGC, or a reverse stock split of any class of voting securities of SGC, or the consummation of any such transaction if stockholder approval is not obtained, other than any such transaction that would result in at least 60% of the total voting power represented by the voting securities of SGC or the surviving entity outstanding immediately after such transaction being beneficially owned by persons who together beneficially owned at least 80% of the combined voting power of the voting securities of SGC outstanding immediately prior cash amounts payable to such transaction; provided that, for purposes of this Section 4(f), such continuity of ownership (and preservation of relative voting power) shall be deemed to be satisfied if the failure to meet such 60% threshold is due solely to the acquisition of voting securities by an employee benefit plan of SGC or such surviving entity or of any subsidiary of SGC or such surviving entityExecutive; (iii) the stockholders of SGC approve a plan of complete liquidation of SGC, an agreement for the sale or disposition by SGC of all or substantially all of its assets (or any transaction having a similar effect)benefits valued as parachute payments; or (iv) during acceleration of vesting of any period stock options for which the exercise price exceeds the then fair market value of two (2) consecutive yearsthe underlying stock, individuals who at in order of the beginning of such period constitute the Board, together with any new director (other than a director designated by a person who has entered into an agreement stock option tranches with the Company to effect largest Section 280G parachute value; (v) acceleration of vesting of any equity award that is not a transaction described in clause stock option; and (i), (iivi) or (iii) above) whose election by acceleration of vesting of any stock options for which the Board or nomination for election by SGC’s stockholders was approved by a vote of at least two-thirds (2/3) exercise price is less then the fair market value of the directors then still underlying stock in office who either such manner as would net Executive the largest remaining spread value if the options were directors at the beginning all exercised as of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the BoardSection 280G event.
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Termination by the Company without Cause or by Executive for Good Reason in Connection with a Change in Control. In the event Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason pursuant to Section 4(e) hereof and such termination occurs upon, or within one (1) year immediately following, a “Change in Control” (as defined below), Executive shall be entitled (without duplication) to the payments and benefits described in Section 4(e) hereof), except that, solely in the case of an amount otherwise payable under Section 4(e)(ii) hereof), such amount shall be multiplied by two (2) (i.e., an amount equal to two (2) multiplied by the sum of Executive’s base salary Base Salary and Executive’s the Severance Bonus Amount, without duplication) and such amount shall be payable over a period of 24 twenty-four (24) months after termination in accordance with Section 4(h3(g) of this Agreement; provided, however, to the extent that such amount under Section 4(e)(ii) is exempt from Section 409A and/or if such Change in Control constitutes a change in ownership, change in effective control or a change in ownership of a substantial portion of the assets of SGC the Company under Regulation Section 1.409A-3(i)(5), such amount otherwise payable under Section 4(e)(ii) hereof shall be paid in a lump sum in accordance with Section 4(h3(g) of this Agreement. Notwithstanding the foregoing, payments if following the Effective Date there occurs a transaction that constitutes a “change of control” under U.S Treasury Regulation 1.280G-1, and any payments, distributions, benefits or entitlements due to the Executive hereunder (the “Payments”) could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”), the Payments shall be reduced to the extent necessary to avoid the imposition of any excise tax imposed by Section 4999 of the Code (or any successor provision thereto), any similar tax imposed by state or local law, or any interest or penalties with respect to such tax on the Payments or a loss of deductibility under Section 280G of the Code; provided, however, that the Payments shall only be reduced to the extent that the after-tax value of amounts received by Executive after application of the above reduction would exceed the after-tax value of the Payments received without application of such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, and excise taxes applicable to such amount. In making any determination as to whether the Payments would be Parachute Payment, consideration shall be given to whether any portion of the Payments could reasonably be considered, based on the relevant facts and circumstances, to be reasonable compensation for services rendered (whether before or after the consummation of the applicable Change in Control). To the extent Payments must be reduced pursuant to this Section 4(f) shall be reduced by Section, the amount necessaryCompany, if anywithout consulting Executive regarding the order of reduction of such Payments, will reduce the Payments to ensure that achieve the aggregate compensation best economic benefit, and to be received by the Executive in connection with such Change in Control does not constitute extent economically equivalent, on a “parachute payment,” as such term is defined in 26 U.S.C. § 280G. pro-rata basis. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if: (i) any “person” as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and as used in Sections 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) of the Exchange Act but excluding SGC the Company and any subsidiary or affiliate and any employee benefit plan sponsored or maintained by SGC the Company or any subsidiary or affiliate (including any trustee of such plan acting as trustee) or any current stockholder of 20% or more of the outstanding common stock of SGCthe Company, directly or indirectly, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of securities of SGC the Company representing at least 40% of the combined voting power of the SGCCompany’s then-outstanding securities; (ii) the stockholders of SGC the Company approve a merger, consolidation, recapitalization, or reorganization of SGCthe Company, or a reverse stock split of any class of voting securities of SGCthe Company, or the consummation of any such transaction if stockholder approval is not obtained, other than any such transaction that would result in at least 60% of the total voting power represented by the voting securities of SGC the Company or the surviving entity outstanding immediately after such transaction being beneficially owned by persons who together beneficially owned at least 80% of the combined voting power of the voting securities of SGC the Company outstanding immediately prior to such transaction; provided that, for purposes of this Section 4(f), such continuity of ownership (and preservation of relative voting power) shall be deemed to be satisfied if the failure to meet such 60% threshold is due solely to the acquisition of voting securities by an employee benefit plan of SGC the Company or such surviving entity or of any subsidiary of SGC the Company or such surviving entity; (iii) the stockholders of SGC the Company approve a plan of complete liquidation of SGCthe Company, an agreement for the sale or disposition by SGC the Company of all or substantially all of its assets (or any transaction having a similar effect); or (iv) during any period of two (2) consecutive years, individuals who at the beginning of such period constitute the Board, together with 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), (ii) or (iii) above) whose election by the Board or nomination for election by SGCthe 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 at least a majority of the Board.
Appears in 1 contract
Samples: Executive Employment Agreement (Scientific Games Corp)
Termination by the Company without Cause or by Executive for Good Reason in Connection with a Change in Control. In the event Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason pursuant to Section 4(e) hereof and such termination occurs upon, or within one (1) year immediately following, a “Change in Control” (as defined below), Executive shall be entitled (without duplication) to the payments and benefits described in Section 4(e) hereof, except that, solely in the case of an amount otherwise payable under Section Sections 4(e)(ii) and (iv) hereof, such amount shall be multiplied by two (2) (i.e., an amount equal to two (2) multiplied by the sum of Executive’s base salary and Executive’s Severance Target Bonus Amount, without duplication) and such amount shall be payable over a period of 24 months after termination in accordance with Section 4(h) of this Agreement; provided, however, to the extent that such amount under Section 4(e)(ii) is exempt from Section 409A and/or if such Change in Control constitutes a change in ownership, change in effective control or a change in ownership of a substantial portion of the assets of SGC under Regulation Section 1.409A-3(i)(5), such amount otherwise payable under Section 4(e)(ii) hereof shall be paid in a lump sum in accordance with Section 4(h) of this Agreement. Notwithstanding the foregoing, payments pursuant to this Section 4(f) shall be reduced by the amount necessary, if any, to ensure that the aggregate compensation to be received by the Executive in connection with such Change in Control does not constitute a “parachute payment,” as such term is defined in 26 U.S.C. § 280G. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if: (i) any “person” as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and as used in Sections 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) of the Exchange Act but excluding SGC and any subsidiary or affiliate and any employee benefit plan sponsored or maintained by SGC or any subsidiary or affiliate (including any trustee of such plan acting as trustee) or any current stockholder of 20% or more of the outstanding common stock of SGC, directly or indirectly, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of securities of SGC representing at least 40% of the combined voting power of the SGC’s then-outstanding securities; (ii) the stockholders of SGC approve a merger, consolidation, recapitalization, or reorganization of SGC, or a reverse stock split of any class of voting securities of SGC, or the consummation of any such transaction if stockholder approval is not obtained, other than any such transaction that would result in at least 60% of the total voting power represented by the voting securities of SGC or the surviving entity outstanding immediately after such transaction being beneficially owned by persons who together beneficially owned at least 80% of the combined voting power of the voting securities of SGC outstanding immediately prior to such transaction; provided that, for purposes of this Section 4(f), such continuity of ownership (and preservation of relative voting power) shall be deemed to be satisfied if the failure to meet such 60% threshold is due solely to the acquisition of voting securities by an employee benefit plan of SGC or such surviving entity or of any subsidiary of SGC or such surviving entity; (iii) the stockholders of SGC approve a plan of complete liquidation of SGC, an agreement for the sale or disposition by SGC of all or substantially all of its assets (or any transaction having a similar effect); or (iv) during any period of two (2) consecutive years, individuals who at the beginning of such period constitute the Board, together with 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), (ii) or (iii) above) whose election by the Board or nomination for election by SGC’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 at least a majority of the Board.
Appears in 1 contract
Termination by the Company without Cause or by Executive for Good Reason in Connection with a Change in Control. In the event Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason pursuant to Section 4(e) hereof and such termination occurs upon, or within one (1) year immediately following, a “Change in Control” (as defined below), Executive shall be entitled (without duplication) to the payments and benefits described in Section 4(e) hereof), except that, solely in that the case of an amount otherwise payable under to which Executive is entitled pursuant to Section 4(e)(ii) hereof, such amount shall be multiplied by two (2) (i.e., an amount equal to two (2) multiplied by the sum of Executive’s base salary and Executive’s the Severance Bonus Amount, without duplication) and such amount shall be payable in substantially equal installments over a period of 24 twenty-four (24) months after termination in accordance with Section 4(h4(g) of this Agreement; provided, however, to the extent that such amount under Section 4(e)(ii) is exempt from Section 409A and/or if such Change in Control constitutes a change in ownership, change in effective control or a change in ownership of a substantial portion of the assets of SGC the Company under Regulation Section 1.409A-3(i)(5), such amount otherwise payable under Section 4(e)(ii) hereof as increased under this Section 4(f) shall be paid in a lump sum in accordance with Section 4(h4(g) of this Agreement. Notwithstanding the foregoing, payments pursuant to this Section 4(f) shall be reduced by the amount necessary, if any, to ensure that the aggregate compensation to be received by the Executive in connection with such Change in Control does not constitute a “parachute payment,” as such term is defined in 26 U.S.C. § 280G. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if: (i) any “person” as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and as used in Sections 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) of the Exchange Act Act, but excluding SGC the Company and any subsidiary or affiliate and any employee benefit plan sponsored or maintained by SGC the Company or any subsidiary or affiliate (including any trustee of such plan acting as trustee) or any current stockholder of 20% or more of the outstanding common stock of SGCthe Company, directly or indirectly, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of securities of SGC the Company representing at least 40% of the combined voting power of the SGCCompany’s then-outstanding securities; (ii) the stockholders of SGC the Company approve a merger, consolidation, recapitalization, or reorganization of SGCthe Company, or a reverse stock split of any class of voting securities of SGCthe Company, or the consummation of any such transaction if stockholder approval is not obtained, other than any such transaction that would result in at least 60% of the total voting power represented by the voting securities of SGC the Company or the surviving entity outstanding immediately after such transaction being beneficially owned by persons who together beneficially owned at least 80% of the combined voting power of the voting securities of SGC the Company outstanding immediately prior to such transaction; provided that, for purposes of this Section 4(f), such continuity of ownership (and preservation of relative voting power) shall be deemed to be satisfied if the failure to meet such 60% threshold is due solely to the acquisition of voting securities by an employee benefit plan of SGC the Company or such surviving entity or of any subsidiary of SGC the Company or such surviving entity; (iii) the stockholders of SGC the Company approve a plan of complete liquidation of SGCthe Company, an agreement for the sale or disposition by SGC the Company of all or substantially all of its assets (or any transaction having a similar effect); or (iv) during any period of two (2) consecutive years, individuals who at the beginning of such period constitute the Board, together with 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), (ii) or (iii) above) whose election by the Board or nomination for election by SGCthe 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 at least a majority of the Board.
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Termination by the Company without Cause or by Executive for Good Reason in Connection with a Change in Control. In the event Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason pursuant to Section 4(e) hereof and such termination occurs upon, or within one (1) year immediately following, a “Change in Control” (as defined below), Executive shall be entitled (without duplication) to the payments and benefits described in Section 4(e) hereof, except that, solely in the case of an amount otherwise payable under Section 4(e)(ii) hereof, that such amount shall be multiplied by two (2) (i.e., an amount equal to two (2) multiplied by the sum of Executive’s base salary and Executive’s Severance Bonus Amount, without duplication) and such amount shall be payable over a period of 24 twenty-four (24) months after termination in accordance with Section 4(h4(g) of this Agreement; provided, however, to the extent that such amount under Section 4(e)(ii) hereof is exempt from Section 409A and/or if such Change in Control constitutes a change in ownership, change in effective control or a change in ownership of a substantial portion of the assets of SGC the Company under Regulation Section 1.409A-3(i)(5), such amount otherwise payable under Section 4(e)(ii) hereof shall be paid in a lump sum in accordance with Section 4(h4(g) of this Agreement. Notwithstanding the foregoing, payments pursuant to this Section 4(f) shall be reduced by the amount necessary, if any, to ensure that the aggregate compensation to be received by the Executive in connection with such Change in Control does not constitute a “parachute payment,” as such term is defined in 26 U.S.C. § 280G. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if: (i) any “person” as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and as used in Sections 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) of the Exchange Act but excluding SGC the Company and any subsidiary or affiliate and any employee benefit plan sponsored or maintained by SGC the Company or any subsidiary or affiliate (including any trustee of such plan acting as trustee) or any current stockholder of 20% or more of the outstanding common stock of SGCstock, directly or indirectly, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of securities of SGC the Company representing at least 40% of the combined voting power of the SGCCompany’s then-outstanding securities; (ii) the stockholders of SGC the Company approve a merger, consolidation, recapitalization, or reorganization of SGCthe Company, or a reverse stock split of any class of voting securities of SGCthe Company, or the consummation of any such transaction if stockholder approval is not obtained, other than any such transaction that which would result in at least 60% of the total voting power represented by the voting securities of SGC the Company or the surviving entity outstanding immediately after such transaction being beneficially owned by persons who together beneficially owned at least 80% of the combined voting power of the voting securities of SGC the Company outstanding immediately prior to such transaction; provided that, for purposes of this Section 4(f), such continuity of ownership (and preservation of relative voting power) shall be deemed to be satisfied if the failure to meet such 60% threshold is due solely to the acquisition of voting securities by an employee benefit plan of SGC the Company or such surviving entity or of any subsidiary of SGC the Company or such surviving entity; (iii) the stockholders of SGC the Company approve a plan of complete liquidation of SGCthe Company, an agreement for the sale or disposition by SGC the Company of all or substantially all of its assets (or any transaction having a similar effect), or the Company sells all or substantially all of the stock of the Company to any person or entity other than an affiliate of the Company; or (iv) during any period of two (2) consecutive years, individuals who at the beginning of such period constitute the Board, together with 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), (ii) or (iii) above) whose election by the Board or nomination for election by SGCthe 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 at least a majority of the Board.
Appears in 1 contract
Termination by the Company without Cause or by Executive for Good Reason in Connection with a Change in Control. In the event Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason pursuant to Section 4(e) hereof and such termination occurs upon, or within one (1) year immediately following, a “Change in Control” (as defined below), Executive shall be entitled (without duplication) to the payments and benefits described in Section 4(e) hereof, except that, solely in the case of an amount otherwise payable under Section 4(e)(ii4(e)(ii)(B) hereof, such amount shall be multiplied by two (2) (i.e.e.g., if such termination occurs during any extended Term on or after March 1, 2012, Executive shall receive an amount equal to two (2) multiplied by the sum of Executive’s base salary and Executive’s Severance Bonus Amount, without duplication) and such amount (or the amount contemplated by Section 4(e)(ii)(A), as the case may be) shall be payable over a period of 24 twenty-four (24) months after termination in accordance with Section 4(h4(g) of this Agreement; provided, however, to the extent that such amount under either clause (A) or clause (B) of Section 4(e)(ii) is exempt from Section 409A and/or if such Change in Control constitutes a change in ownership, change in effective control or a change in ownership of a substantial portion of the assets of SGC the Company under Regulation Section 1.409A-3(i)(5), such amount otherwise payable under Section 4(e)(ii) hereof shall be paid in a lump sum in accordance with Section 4(h4(g) of this Agreement. Notwithstanding the foregoing, payments pursuant to this Section 4(f) shall be reduced by the amount necessary, if any, to ensure that the aggregate compensation to be received by the Executive in connection with such Change in Control does not constitute a “parachute payment,” as such term is defined in 26 U.S.C. § 280G. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if: (i) any “person” as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and as used in Sections 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) of the Exchange Act but excluding SGC the Company and any subsidiary or affiliate and any employee benefit plan sponsored or maintained by SGC the Company or any subsidiary or affiliate (including any trustee of such plan acting as trustee) or any current stockholder of 20% or more of the outstanding common stock of SGCstock, directly or indirectly, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of securities of SGC the Company representing at least 40% of the combined voting power of the SGCCompany’s then-outstanding securities; (ii) the stockholders of SGC the Company approve a merger, consolidation, recapitalization, or reorganization of SGCthe Company, or a reverse stock split of any class of voting securities of SGCthe Company, or the consummation of any such transaction if stockholder approval is not obtained, other than any such transaction that which would result in at least 60% of the total voting power represented by the voting securities of SGC the Company or the surviving entity outstanding immediately after such transaction being beneficially owned by persons who together beneficially owned at least 80% of the combined voting power of the voting securities of SGC the Company outstanding immediately prior to such transaction; provided that, for purposes of this Section 4(f), such continuity of ownership (and preservation of relative voting power) shall be deemed to be satisfied if the failure to meet such 60% threshold is due solely to the acquisition of voting securities by an employee benefit plan of SGC the Company or such surviving entity or of any subsidiary of SGC the Company or such surviving entity; (iii) the stockholders of SGC the Company approve a plan of complete liquidation of SGCthe Company, an agreement for the sale or disposition by SGC the Company of all or substantially all of its assets (or any transaction having a similar effect), or the Company sells all or substantially all of the stock of the Company to any person or entity other than an affiliate of the Company; or (iv) during any period of two (2) consecutive years, individuals who at the beginning of such period constitute the Board, together with 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), (ii) or (iii) above) whose election by the Board or nomination for election by SGCthe 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 at least a majority of the Board.
Appears in 1 contract
