Termination Pursuant to a Change of Control. If there is a Change of Control, as defined in Section 5(d)(i) below, during the Term, the provisions of this Section 5(d) shall apply and shall continue to apply throughout the remainder of Employment Period. If, within one (1) year following a Change of Control, the Executive’s employment is terminated by the Company or the Executive following the occurrence of any of the events listed in Section 5(d)(ii) below or if the Executive’s employment is terminated without cause (in accordance with Section 5(a) above), the Company shall pay to the Executive (or the Executive’s estate, if applicable) the payments described under Section 5(a) and the Executive shall become vested in any outstanding options, restricted stock, or other equity incentive award; provided that the Company’s obligation to make any payment, or to permit any vesting of outstanding options, restricted stock, or other equity incentive award as described above, shall be conditioned upon the Executive’s execution, and non-revocation, of a written release, substantially in the form attached hereto as Exhibit 1.
(i) Change of Control shall mean the occurrence of one or more of the following events:
(A) any “person” (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) becomes a “beneficial owner” (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) (other than the Company, any trustee or other fiduciary holding securities under an employee benefit plan of the Company, or any corporation owned, directly or indirectly, by the stockholders of the Company, in substantially the same proportions as their ownership of stock of the Company), directly or indirectly, of securities of the Company, representing forty percent (40%) or more of the combined voting power of the Company’s then outstanding securities; or
(B) persons who, as of the Effective Date, constituted the Company’s Board of Directors (the “Incumbent Board”) cease for any reason including, without limitation, as a result of a tender offer, proxy contest, merger or similar transaction, to constitute at least a majority of the Board of Directors, provided that any person becoming a director of the Company subsequent to the Effective Date whose election was approved by at least a majority of the directors then comprising the Incumbent Board shall, for purposes of this Section 5(d), be considered a member of the Incumbent Board; or
(C) the stockholders...
Termination Pursuant to a Change of Control. If there is a Change of Control, as defined below, during the Term of Employment, the provisions of this Section 6(g) shall apply and shall continue to apply throughout the remainder of the Term (as extended by any Renewal Term). Upon a Change of Control, the Executive will become fully vested in any outstanding stock options, Restricted Stock or other stock grants awarded and become fully vested in all Company contributions made to the Executive’s 401(k), Profit Sharing or other retirement account(s). In addition, within thirty (30) days of the Change of Control, the Company shall pay to the Executive a lump sum equal to the Executive’s pro rata target cash bonus for the year in which the Change of Control occurred (as such may be set forth in the Company’s bonus plan for such year and calculated assuming target achievement of corporate and personal goals); such pro rata amount to be determined based on the actual date of the closing of such Change of Control transaction. If, within two (2) years following a Change of Control, the Executive’s employment is terminated by the Company without Cause (in accordance with Section 5(e) above) or by the Executive for “Good Reason” (as defined in Section 6(g)(ii) below), in lieu of any severance and other benefits payable under Section 6(e) or Section 6(f), subject to the Executive signing a general release of claims in a form and manner satisfactory to the Company and the lapse of any statutory revocation period, the Company shall pay to the Executive (or the Executive’s estate, if applicable) a lump sum amount equal to 1.5 times the sum of (x) the Executive’s Base Salary at the rate then in effect pursuant to Section 4(a), plus (y) an amount equal to the Executive’s cash bonus, if any, received in respect of the year immediately preceding the year of termination pursuant to Section 4(b) within thirty (30) days of the Date of Termination. Notwithstanding the foregoing, to the extent the cash severance payment to the Executive is considered deferred compensation subject to Section 409A of the Code, and if the Change of Control does not constitute a “change in control event” within the meaning of Section 409A of the Code, such cash severance shall be payable in installments over the same period as provided in Section 6(e). The Company shall also pay 100% of the costs to provide up to twelve (12) months of outplacement support services at a level appropriate for the Executive’s title and responsibility and provide th...
Termination Pursuant to a Change of Control. If, within three (3) months before or twenty four (24) months following a Change of Control, the Company terminates Employee’s employment without Cause pursuant to Section 3.1(a) or Employee terminates his employment for Good Reason pursuant to Section 3.1(b), Employee shall have no further rights against the Company hereunder, except the Company will no later than the date that is six (6) months and one (1) day after the date of termination of employment, or the last day of such shorter period upon such termination of employment that is sufficient to avoid the imposition of additional tax under Section 409A(a)(1)(B) of the Internal Revenue Code of 1986, as amended, or any other taxes or penalties imposed under Section 409A of the Code:
(i) pay Employee a lump-sum severance payment (the “Severance Payment”) in an amount equal to the sum of: (i) 2.0 times Employee’s annual base salary as in effect on the date of termination; and (ii) 2.0 times the greater of (x) the average of the two annual bonuses paid to Employee for the two years preceding the year in which such termination occurs or (y) the target bonus for the year in which such termination occurs;
(ii) pay the COBRA premium for health care coverage for Employee and Employee’s spouse and children, as applicable and to the extent eligible (the “Severance Benefits”), provided that Employee properly elects COBRA continuation coverage, for the 24-month period immediately following the date of such termination of Employee’s employment. On the Deferred Payment Date, the Company will pay Employee an amount equal to the Severance Benefits for the period beginning on the date of your termination of employment and ending on the Deferred Payment Date; and
(iii) pay up to $10,000 for outplacement services.
Termination Pursuant to a Change of Control i. If, during a Change of Control Period, FairMarket terminates Executive's employment pursuant to Section 2(c) or Executive terminates Executive's employment with FairMarket pursuant to Section 2(d) and, in either event, Executive executes a General Release (as defined in Section 2(g)) and, if a revocation period is provided in the General Release, does not revoke the same within the period stated in the General Release, and subject to Section 3 below, then:
A. FairMarket shall pay Executive a lump sum amount equal to the greater of (1) the sum of (x) Executive's annual base salary as of the date on which such termination occurs plus (y) Executive's Target Bonus (as defined below) as of the date on which such termination occurs or (2) the sum of (x) the base salary paid or payable to Executive during the twelve (12) months preceding the date on which such termination occurs plus (y) the total of the Bonuses (as defined below) paid to or payable to Executive with respect to the last four (4) consecutive quarters for which Executive had been eligible to be considered for Bonuses prior to the date on which such termination occurs;
B. FairMarket shall provide Executive with continuation of group health plan benefits to the extent authorized by and consistent with 29 U.S.C. Section 1161 ET SEQ. (commonly known as "COBRA"), with payments for such benefits made by FairMarket in the same proportion as made during Executive's employment; and
C. any and all stock options granted Executive by FairMarket and not yet exercised, expired, surrendered or canceled shall automatically vest in full as of Executive's termination date.
Termination Pursuant to a Change of Control. If there is a Change ------------------------------------------- of Control, as defined below, during the Term of Employment, the provisions of this Section 6(g) shall apply and shall continue to apply throughout the remainder of the Term (as extended by any Renewal Term). If, within one (1) year following a Change of Control, the Employee's employment is terminated by the Company without cause (in accordance with Section 6(e) above) or by the Employee for "Good Reason" (as defined in Section 6(g)(ii) below), the Company shall pay to the Employee (or the Employee's estate, if applicable) a lump sum amount equal to one (1) time the sum of (x) the Employee's Base Salary at the rate then in effect pursuant to Section 4(a), plus (y) an amount equal to the ---- Employee's cash bonus, if any, received in respect of the immediately preceding year pursuant to Section 4(b).
Termination Pursuant to a Change of Control i. If, during a Change of Control Period, FairMarket terminates Executive's employment pursuant to Section 2(c) or Executive terminates Executive's employment with FairMarket pursuant to Section 2(d) and, in either event, Executive executes a General Release (as defined in Section 2(g)) and, if a revocation period is provided in the General Release, does not revoke the same within the period stated in the General Release, and subject to Section 3 below, then:
A. FairMarket shall pay Executive an amount equal to the greater of (1) the sum of the base salary and the amount of any Bonus (as defined below) paid or payable to Executive during the twelve (12) months following the date on which such termination occurs or (2) the sum of (x) the base salary paid or payable to Executive during the twelve (12) months preceding the date on which such termination occurs plus (y) the average of the last four (4) quarterly Bonuses paid to or payable to Executive prior to the date on which such termination occurs multiplied by four (4), payable as provided below;
B. FairMarket shall provide Executive with continuation of group health plan benefits to the extent authorized by and consistent with 29 U.S.C. Section 1161 ET SEQ. (commonly known as "COBRA"), with payments for such benefits made by FairMarket in the same proportion as made during Executive's employment; and
C. any and all stock options granted Executive by FairMarket and not yet exercised, expired, surrendered or canceled shall automatically vest in full as of Executive's termination date.
Termination Pursuant to a Change of Control. If upon or at any time during the Term of Agreement there is a “Termination Event”, as defined below, that occurs within one (1) year following a “Change in Control”, as defined below, Executive shall be treated as if Executive had been terminated by the Company Without Good Cause pursuant to Section 3.2(b) and in addition to the severance benefits described therein shall be entitled to receive an additional Change in Control amount equal to fifty percent (50%) of the Executive’s current annual base salary. The Change in Control amount shall be paid at the same time and in the same manner as the Executive’s severance payments pursuant to Section 3.2(b)(ii).
(i) A Termination Event shall mean the occurrence of any one or more of the following, but shall not include Executive’s termination due to death or disability:
A. the termination or material breach of this Agreement by the Company;
B. the failure by the Company to obtain the assumption of this Agreement by any successor to the Company or any assignee of all or substantially all of the Company’s assets;
C. any material diminishment in the title, position, duties, responsibility or status that the Executive had with the Company immediately prior to the Change in Control;
D. any reduction, limitation or failure to pay or provide any of the compensation provided to the Executive under Section 2.1 of this Agreement or any other agreement or understanding between the Executive and the Company, or pursuant to the Company’s policies and past practices, as of the date immediately prior to the Change in Control; or
E. any requirement that the Executive relocate more than 30 miles from his place of employment as of the date immediately prior to the Change in Control.
(ii) Change in Control shall mean any of the following, occurring during the term of the Executive’s employment or employment relationship with the Company:
A. an acquisition by an individual, an entity or a group (excluding the Company, an employee benefit plan of the Company, or a corporation controlled Company’s shareholders) of fifty percent (50%) or more of the Company’s then-outstading common stock or voting securities;
B. a change in composition of the Board occurring within a rolling twelve-month period, as a result of which fewer than a majority of the director are Incumbent Directors (“Incumbent Directors” shall mean directors who either (x) are member of the Board as of the Executive Date or (y) are elected, or nominated for election, to t...
Termination Pursuant to a Change of Control. If, within three (3) months before or twenty four (24) months following a Change of Control, the Company terminates Employee’s employment without Cause pursuant to Section 3.1(a), Employee terminates his employment for Good Reason pursuant to Section 3.1(b) or upon expiration of this Agreement following the Company’s notice of its intention not to renew pursuant to Section 1.1, Employee shall have no further rights against the Company hereunder, except the Company will, subject to Section 3.2(g):
(i) pay the Employee the Accrued Obligations:
(ii) subject to Section 3.2(f), pay Employee a lump-sum severance payment (the “Severance Payment”) 53 days following the termination of employment, in an amount equal to the sum of: (a) 2.0 times Employee’s annual base salary as in effect on the date of termination; and (b) 2.0 times the greater of (x) the average of the two annual bonuses paid to Employee for the two years preceding the year in which such termination occurs, provided that if the Employee was not employed for the period required to be eligible for two prior annual bonuses, then the amount in this subparagraph (b)(x) shall be the amount of the annual bonus, if any, received for the year prior to the year in which termination of employment occurred, or (y) the target bonus for the year in which such termination occurs; provided such lump sum shall be reduced by the amount of any lump sum payable under Section 3.2(a)(ii).
(iii) subject to Section 3.2(f), pay the full premium for group health care coverage for Employee and Employee’s eligible dependents, as applicable and to the extent eligible, provided that Employee properly elects COBRA continuation coverage, for the 24 month period immediately following the date of such termination of Employee’s employment, except that payment of such premiums shall cease if and when the Employee (and Employee’s eligible dependents) become eligible for medical, hospital and health coverage under a plan of a subsequent employer; and
(iv) subject to Section 3.2(f), pay up to $10,000 for outplacement services, provided such payment shall be reduced by the amount of any payment under Section 3.2(a)(iv), and provided further that such services are used within two years of termination of employment.
Termination Pursuant to a Change of Control. This Agreement may be terminated by the Business Manager upon a Change of Control.
Termination Pursuant to a Change of Control. If there is a Change ------------------------------------------- of Control, as defined below, during the Term of Employment, the provisions of this Section 6(g) shall apply and shall continue to apply throughout the remainder of the Term (as extended by any Renewal Term). If, within one (1) year following a Change of Control, the Executive's
