Treatment of Outstanding Awards. Executive will have Performance Stock Awards outstanding as of the Retirement Date. In consideration for the Executive’s execution of the release set forth below, the Company hereby agrees that each such award shall be afforded treatment consistent with Executive’s voluntary “Retirement” as defined in the 2013 Stock and Incentive Compensation Plan (“Equity Plan”) and in accordance with the terms of the Executive’s Performance Stock Award Agreements (“Award Agreements”), without regard to the Executive’s age as of the date of his Retirement. Therefore, on December 31, 2019, Executive shall be vested and shares prorated as follows: (1) 100% of the stock award for the 2017-2019 performance period, (2) 67% of the stock award for the 2018-2020 performance period and (3) 33% of the stock award for the 2019-2021 performance period. The number of shares of the Company’s common stock awarded under the Award Agreements shall be determined by the Compensation Committee following the conclusion of each performance period and the actual performance results achieved. Shares awarded under each outstanding Performance Stock Award will be issued to Executive as soon as reasonably practicable but within no more than 30 days following the determination by the Compensation Committee of the amount earned under each such award following the end of the applicable performance period. All such amounts shall be subject to appropriate payroll deductions and income tax withholdings, and shall remain subject to the Company’s policies regarding recovery of compensation (commonly referred to as the “clawback” policy) that was based upon the achievement of certain financial results (as reflected in the financial statement of the Company or otherwise) or other performance metrics that, in either case, were subsequently found to be materially inaccurate. In addition, the Parties acknowledge and agree that nothing in this Agreement shall limit the Compensation Committee’s discretion in determining the amount earned under any Award Agreement or to reduce or eliminate the amount due under any Award Agreement should it hereafter determine that Executive engaged in conduct at any time while employed by the Company or during the Restricted Period (as defined in Paragraph 9(c) of the Employment Agreement) that is or was in material violation of the policies of the Company, materially injurious to the Company, or undertaken without good faith and the reasonable belief that such conduct was in the best interest of the Company.
Appears in 1 contract
Treatment of Outstanding Awards. Executive will have Performance Stock Awards outstanding In the event of a Change of Control, unless otherwise specifically prohibited by any applicable laws, rules or regulations or otherwise provided in any applicable Award Agreement, as in effect prior to the occurrence of the Retirement Date. In consideration Change of Control, specifically with respect to a Change of Control:
(a) Immediately prior to the occurrence of such Change of Control, any and all Options, SARs and Other Stock-Based Awards (if applicable) which are outstanding shall immediately become fully exercisable as to all Shares covered thereby, notwithstanding anything to the contrary in the Plan or the Award Agreement, and, in the event of a Participant’s Termination (including termination of employment or services with any successor of the Company, a Subsidiary or an Affiliate) under any circumstances during the one year period following the Change of Control, all Options, SARs and Other Stock-Based Awards (if applicable) held by such Participant (or such Participant’s beneficiary or transferee) shall remain exercisable at least until the first anniversary of such Termination or the expiration of the term of such Option, SAR or Other Stock-Based Award, if earlier.
(b) Immediately prior to the occurrence of such Change of Control, any restrictions, performance goals or other conditions applicable to Restricted Stock Units, Shares of Restricted Stock and Other Stock-Based Awards previously awarded to Participants shall be immediately canceled or deemed achieved, the Period of Restriction applicable thereto shall immediately terminate, and all restrictions on transfer, sale, assignment, pledge or other disposition applicable to any such Shares of Restricted Stock shall immediately lapse, notwithstanding anything to the contrary in the Plan or the Award Agreement.
(c) Immediately prior to the occurrence of such Change of Control, all Awards which are outstanding shall immediately become fully vested and nonforfeitable.
(d) The target payment opportunities attainable under any outstanding Awards of Performance Units, Performance Shares and other Awards shall be deemed to have been fully earned for the Executive’s execution entire Performance Period(s) immediately prior to the effective date of the release set forth belowChange of Control, unless actual performance exceeds the Company hereby agrees that each such award target, in which case actual performance shall be afforded treatment consistent used. There shall be paid out to each Participant holding such an Award denominated in Shares, not later than five (5) days prior to the effective date of the Change of Control, a pro rata number of Shares (or the equivalent Fair Market Value thereof, as determined by the Committee, in cash) based upon an assumed achievement of all relevant targeted performance goals, unless actual performance exceeds the target, in which case actual performance shall be used, and upon the length of time within the Performance Period which has elapsed prior to the Change of Control. Awards denominated in cash shall be paid pro rata to applicable Participants in cash within thirty (30) days following the effective date of the Change of Control, with Executive’s voluntary “Retirement” the pro-ration determined as defined a function of the length of time within the Performance Period which has elapsed prior to the Change of Control, and based on an assumed achievement of all relevant targeted performance goals, unless actual performance exceeds the target, in which case actual performance shall be used.
(e) Any Award the 2013 Stock and Incentive Compensation Plan (“Equity Plan”) and payment or settlement of which was deferred under Section 20.6 or otherwise shall be paid or distributed immediately prior to the Change of Control, except as otherwise provided by the Committee in accordance with Section 15.1(f).
(f) In its discretion, and on such terms and conditions as it deems appropriate, the Committee may provide, either by the terms of the Executive’s Performance Stock Award Agreements (“Agreement applicable to any Award Agreements”), without regard or by resolution adopted prior to the Executive’s age as occurrence of the date Change of his Retirement. ThereforeControl, on December 31, 2019, Executive that any outstanding Award shall be vested and shares prorated as follows: adjusted by substituting for each Share subject to such Award immediately prior to the transaction resulting in the Change of Control the consideration (1) 100% whether stock or other securities of the stock award for the 2017-2019 performance period, (2) 67% of the stock award for the 2018-2020 performance period and (3) 33% of the stock award for the 2019-2021 performance period. The number of shares of the Company’s common stock awarded under the Award Agreements shall be determined by the Compensation Committee following the conclusion of each performance period and the actual performance results achieved. Shares awarded under each outstanding Performance Stock Award will be issued to Executive as soon as reasonably practicable but within no more than 30 days following the determination by the Compensation Committee of the amount earned under each such award following the end of the applicable performance period. All such amounts shall be subject to appropriate payroll deductions and income tax withholdings, and shall remain subject to the Company’s policies regarding recovery of compensation (commonly referred to as the “clawback” policy) that was based upon the achievement of certain financial results (as reflected in the financial statement of the Company surviving corporation or otherwise) or other performance metrics that, in either case, were subsequently found to be materially inaccurate. In addition, the Parties acknowledge and agree that nothing in this Agreement shall limit the Compensation Committee’s discretion in determining the amount earned under any Award Agreement or to reduce or eliminate the amount due under any Award Agreement should it hereafter determine that Executive engaged in conduct at any time while employed by the Company or during the Restricted Period (as defined in Paragraph 9(c) of the Employment Agreement) that is or was in material violation of the policies of the Company, materially injurious successor corporation to the Company, or undertaken without good faith and a parent or subsidiary thereof, or that may be issuable by another corporation that is a party to the reasonable belief that such conduct was transaction resulting in the best interest Change of Control) received in such transaction by holders of Shares for each Share held on the closing or effective date of such transaction, in which event the aggregate Option Price or Xxxxx Xxxxx, as applicable, of the CompanyAward shall remain the same; provided, however, that if such consideration received in such transaction is not solely stock of a successor, surviving or other corporation, the Committee may provide for the consideration to be received upon exercise or payment of an Award, for each Share subject to such Award, to be solely stock or other securities of the successor, surviving or other corporation, as applicable, equal in fair market value, as determined by the Committee, to the per-Share consideration received by holders of Shares in such transaction.
(g) In its discretion, and on such terms and conditions as it deems appropriate, the Committee may provide, either by the terms of the Award Agreement applicable to any Award or by resolution adopted prior to the occurrence of the Change of Control, that any outstanding Award (or portion thereof) shall be converted into a right to receive cash, on or as soon as practicable following the closing date or expiration date of the transaction resulting in the Change of Control in an amount equal to the highest value of the consideration to be received in connection with such transaction for one Share, or, if higher, the highest Fair Market Value of a Share during the thirty (30) consecutive business days immediately prior to the closing date or expiration date of such transaction, less the per-Share Option Price, Xxxxx Xxxxx or outstanding unpaid purchase price, as applicable to the Award, multiplied by the number of Shares subject to such Award, or the applicable portion thereof.
(h) The Committee may, in its discretion, provide that an Award can or cannot be exercised after, or will otherwise terminate or not terminate as of, a Change of Control.
Appears in 1 contract
Treatment of Outstanding Awards. Executive will have Performance Stock Awards outstanding In the event of a Change of Control, unless otherwise specifically prohibited by any applicable laws, rules or regulations or otherwise provided in any applicable Award Agreement, as in effect prior to the occurrence of the Retirement Date. Change of Control, specifically with respect to a Change of Control:
(a) In consideration for the Executive’s execution of the release set forth belowits discretion, and on such terms and conditions as it deems appropriate, the Company hereby agrees that each such award shall be afforded treatment consistent with Executive’s voluntary “Retirement” as defined in the 2013 Stock and Incentive Compensation Plan (“Equity Plan”) and in accordance with Committee may provide, either by the terms of the Executive’s Performance Stock Award Agreements (“Award Agreements”), without regard Agreement or by resolution adopted prior to the Executive’s age occurrence of such Change of Control, that any Options, SARs and Other Stock-Based Awards (if applicable) which are outstanding shall become exercisable as determined by the Committee, notwithstanding anything to the contrary in the Award Agreement; provided, however, that if (i) such Options, SARs or Other Stock-Based Awards are not Assumed or Replaced, or in the event of the date of his Retirement. Therefore, on December 31, 2019, Executive shall be vested and shares prorated as follows: (1) 100% of the stock award for the 2017-2019 performance period, (2) 67% of the stock award for the 2018-2020 performance period and (3) 33% of the stock award for the 2019-2021 performance period. The number of shares a liquidation of the Company’s common stock awarded under , or (ii) a Participant incurs a Termination, either by the Company, an Affiliate or a Subsidiary without Cause or by the Participant for Good Reason, after the Change of Control, then all outstanding Options, SARs and Other Stock-Based Awards (if applicable) that (x) are not so Assumed or Replaced, or are outstanding at the time of such a liquidation of the Company, or (y) are held by such a Terminated Participant, as the case may be, shall become fully exercisable as to all Shares covered thereby, immediately prior to the occurrence of such Change of Control (or such earlier date as the Committee may prescribe), in the case of clause (x) immediately preceding, or upon the occurrence of such Termination, in the case of clause (y) immediately preceding, notwithstanding anything to the contrary in the Plan or the Award Agreements Agreement.
(b) In its discretion, and on such terms and conditions as it deems appropriate, the Committee may provide, either by the terms of the Award Agreement or by resolution adopted prior to the occurrence of such Change of Control, that restrictions, performance goals or other conditions applicable to Restricted Stock Units, Shares of Restricted Stock and Other Stock-Based Awards previously awarded to Participants shall be determined canceled or deemed achieved, the Period of Restriction applicable thereto shall terminate, and restrictions on transfer, sale, assignment, pledge or other disposition applicable to any such Shares of Restricted Stock shall lapse, in each case, to the extent provided by the Compensation Committee following Committee, notwithstanding anything to the conclusion contrary in the Award Agreement; provided, however, that if (i) any such Awards are not Assumed or Replaced, or in the event of each a liquidation of the Company, or (ii) a Participant incurs a Termination, either by the Company, an Affiliate or a Subsidiary without Cause or by the Participant for Good Reason, after the Change of Control, then any restrictions, performance period goals or other conditions applicable to outstanding Restricted Stock Units, Shares of Restricted Stock and Other Stock-Based Awards that (x) are not so Assumed or Replaced, or are outstanding at the time of such a liquidation of the Company, or (y) are held by such a Terminated Participant, as the case may be, shall be immediately cancelled or deemed achieved, and the actual performance results achieved. Period of Restriction applicable to any such Shares awarded under each outstanding Performance of Restricted Stock Award will be issued shall terminate, and restrictions on transfer, sale, assignment, pledge or other disposition applicable to Executive any such Shares of Restricted Stock shall lapse, in each case, immediately prior to the occurrence of such Change of Control (or such earlier date as soon the Committee may prescribe), in the case of clause (x) immediately preceding, or upon the occurrence of such Termination, in the case of clause (y) immediately preceding, notwithstanding anything to the contrary in the Plan or the Award Agreement.
(c) In its discretion, and on such terms and conditions as reasonably practicable but within no more than 30 days following it deems appropriate, the determination Committee may provide, either by the Compensation Committee terms of the amount earned under each Award Agreement or by resolution adopted prior to the occurrence of such award following Change of Control, that any Awards which are outstanding shall, in whole or in part, immediately become vested and nonforfeitable; provided, however, that if (i) any such Awards are not Assumed or Replaced, or in the end event of a liquidation of the applicable performance period. All such amounts shall be subject to appropriate payroll deductions and income tax withholdingsCompany, and shall remain subject to or (ii) a Participant incurs a Termination, either by the Company’s policies regarding recovery , an Affiliate or a Subsidiary without Cause or by the Participant for Good Reason, after the Change of compensation Control, then all outstanding Awards that (commonly referred to as x) are not so Assumed or Replaced or are outstanding at the “clawback” policy) that was based upon the achievement time of certain financial results (as reflected in the financial statement such a liquidation of the Company or otherwise(y) are held by such a Terminated Participant, as the case may be, shall become fully vested and nonforfeitable, immediately prior to the occurrence of such Change of Control (or other performance metrics thatsuch earlier date as the Committee may prescribe), in either casethe case of clause (x) immediately preceding, were subsequently found or upon the occurrence of such Termination, in the case of clause (y) immediately preceding, notwithstanding anything to be materially inaccurate. the contrary in the Plan or the Award Agreement.
(d) In additionits discretion, and on such terms and conditions as it deems appropriate, the Parties acknowledge and agree that nothing in this Agreement shall limit Committee may provide, either by the Compensation Committee’s discretion in determining terms of the amount earned under any Award Agreement or by resolution adopted prior to reduce or eliminate the amount due occurrence of such Change of Control, that the target payment opportunities attainable under any Award Agreement should it hereafter determine that Executive engaged in conduct at outstanding Awards of Performance Units, Performance Shares, Cash-Based Awards and other Awards shall be deemed to have been fully or partially earned for any time while employed Performance Period(s), as determined by the Company or during Committee, immediately prior to the Restricted Period (as defined in Paragraph 9(c) effective date of the Employment AgreementChange of Control. Notwithstanding the immediately preceding sentence to the contrary, if (i) that is any such Awards are not Assumed or was Replaced, or in material violation the event of the policies a liquidation of the Company, materially injurious to the Company, or undertaken without good faith and the reasonable belief that such conduct was in the best interest of the Company.or
Appears in 1 contract
Samples: Incentive Compensation Plan (Golfsmith International Holdings Inc)
Treatment of Outstanding Awards. Executive will have Performance Stock Awards outstanding In the event of a Change of Control, unless otherwise specifically prohibited by any applicable laws, rules or regulations or otherwise provided in any applicable Award Agreement, as in effect prior to the occurrence of the Retirement Date. Change of Control, specifically with respect to a Change of Control:
(a) In consideration for the Executive’s execution of the release set forth belowits discretion, and on such terms and conditions as it deems appropriate, the Company hereby agrees that each such award shall be afforded treatment consistent with Executive’s voluntary “Retirement” as defined in the 2013 Stock and Incentive Compensation Plan (“Equity Plan”) and in accordance with Committee may provide, either by the terms of the Executive’s Performance Stock Award Agreements (“Award Agreements”), without regard Agreement or by resolution adopted prior to the Executive’s age occurrence of such Change of Control, that any Options, SARs and Other Stock-Based Awards (if applicable) which are outstanding shall become exercisable as of the date of his Retirement. Therefore, on December 31, 2019, Executive shall be vested and shares prorated as follows: (1) 100% of the stock award for the 2017-2019 performance period, (2) 67% of the stock award for the 2018-2020 performance period and (3) 33% of the stock award for the 2019-2021 performance period. The number of shares of the Company’s common stock awarded under the Award Agreements shall be determined by the Compensation Committee following the conclusion of each performance period and the actual performance results achieved. Shares awarded under each outstanding Performance Stock Award will be issued to Executive as soon as reasonably practicable but within no more than 30 days following the determination by the Compensation Committee of the amount earned under each such award following the end of the applicable performance period. All such amounts shall be subject to appropriate payroll deductions and income tax withholdingsCommittee, and shall remain subject notwithstanding anything to the Company’s policies regarding recovery of compensation (commonly referred to as the “clawback” policy) that was based upon the achievement of certain financial results (as reflected contrary in the financial statement of Award Agreement; provided, however, that if the Company surviving or otherwise) or other performance metrics that, in either case, were subsequently found to be materially inaccurate. In addition, the Parties acknowledge and agree that nothing in this Agreement shall limit the Compensation Committee’s discretion in determining the amount earned under any Award Agreement or to reduce or eliminate the amount due under any Award Agreement should it hereafter determine that Executive engaged in conduct at any time while employed by the Company or during the Restricted Period (as defined in Paragraph 9(c) of the Employment Agreement) that is or was in material violation of the policies of the Company, materially injurious successor corporation to the Company, or undertaken without good faith and any parent or subsidiary thereof, or any other corporation that is a party to the reasonable belief that such conduct was transaction resulting in the best interest Change of Control, does not agree to assume, or substitute equivalent options or other awards for, such Options, SARs or Other Stock-Based Awards, or in the event of a liquidation of the Company, then immediately prior to the occurrence of such Change of Control, or as of such earlier date as the Committee may prescribe, any and all Options, SARs and Other Stock-Based Awards (if applicable) which are outstanding shall immediately become fully exercisable as to all Shares covered thereby, notwithstanding anything to the contrary in the Plan or the Award Agreement.
(b) In its discretion, and on such terms and conditions as it deems appropriate, the Committee may provide, either by the terms of the Award Agreement or by resolution adopted prior to the occurrence of such Change of Control, that restrictions, performance goals or other conditions applicable to Restricted Stock Units, Shares of Restricted Stock and Other Stock-Based Awards previously awarded to Participants shall be canceled or deemed achieved, the Period of Restriction applicable thereto shall terminate, and restrictions on transfer, sale, assignment, pledge or other disposition applicable to any such Shares of Restricted Stock shall lapse, in each case, to the extent provided by the Committee, notwithstanding anything to the contrary in the Award Agreement; provided, however, that if the surviving or successor corporation to the Company, or any parent or subsidiary thereof, or any other corporation that is a party to the transaction resulting in the Change of Control does not agree to assume, or substitute equivalent awards for, any such Awards, or in the event of a liquidation of the Company, then immediately prior to the occurrence of such Change of Control, any restrictions, performance goals or other conditions applicable to Restricted Stock Units, Shares of Restricted Stock and Other Stock-Based Awards previously awarded to Participants shall be immediately canceled or deemed achieved, the Period of Restriction applicable thereto shall immediately terminate, and all restrictions on transfer, sale, assignment, pledge or other disposition applicable to any such Shares of Restricted Stock shall immediately lapse, notwithstanding anything to the contrary in the Plan or the Award Agreement.
(c) In its discretion, and on such terms and conditions as it deems appropriate, the Committee may provide, either by the terms of the Award Agreement or by resolution adopted prior to the occurrence of such Change of Control, that any Awards which are outstanding shall, in whole or in part, immediately become vested and nonforfeitable; provided, however, that if the surviving or successor corporation to the Company, or any parent or subsidiary thereof, or any other corporation that is a party to the transaction resulting in the Change of Control does not agree to assume, or substitute equivalent awards for, any such Awards, or in the event of a liquidation of the Company, then immediately prior to the occurrence of such Change of Control, all Awards which are outstanding shall immediately become fully vested and nonforfeitable.
(d) In its discretion, and on such terms and conditions as it deems appropriate, the Committee may provide, either by the terms of the Award Agreement or by resolution adopted prior to the occurrence of such Change of Control, that the target payment opportunities attainable under any outstanding Awards of Performance Units, Performance Shares, Cash-Based Awards and other Awards shall be deemed to have been fully or partially earned for any Performance Period(s), as determined by the Committee, immediately prior to the effective date of the Change of Control. Notwithstanding the immediately preceding sentence to the contrary, if the surviving or successor corporation to the Company, or any parent or subsidiary thereof, or any other corporation that is a party to the transaction resulting in the Change of Control does not agree to assume, or substitute equivalent awards for, any such Awards, or in the event of a liquidation of the Company, then the target payment opportunities attainable under any outstanding Awards of Performance Units, Performance Shares, Cash-Based Awards and other Awards shall be deemed to have been fully earned for the entire Performance Period(s) immediately prior to the effective date of the Change of Control, unless actual performance exceeds the target, in which case actual performance shall be used, and (i) there shall be paid out to each Participant holding such an Award denominated in Shares, not later than five (5) days prior to the effective date of the Change of Control, a pro rata number of Shares (or the equivalent Fair Market Value thereof, as determined by the Committee, in cash) based upon an assumed achievement of all relevant targeted performance goals, unless actual performance exceeds the target, in which case actual performance shall be used, and upon the length of time within the Performance Period which has elapsed prior to the Change of Control, and (ii) Awards denominated in cash shall be paid pro rata to applicable Participants in cash within thirty (30) days following the effective date of the Change of Control, with the pro-ration determined as a function of the length of time within the Performance Period which has elapsed prior to the Change of Control, and based on an assumed achievement of all relevant targeted performance goals, unless actual performance exceeds the target, in which case actual performance shall be used.
(e) In its discretion, and on such terms and conditions as it deems appropriate, the Committee may provide, either by the terms of the Award Agreement applicable to any Award or by resolution adopted prior to the occurrence of such Change of Control, that any Award the payment or settlement of which was deferred under Section 21.6 or otherwise may be paid or distributed immediately prior to the Change of Control, except as otherwise provided by the Committee in accordance with Section 16.1(f); provided, however, that if the surviving or successor corporation to the Company, or any parent or subsidiary thereof, or any other corporation that is a party to the transaction resulting in the Change of Control does not agree to assume, or substitute equivalent awards for, any such Awards, or in the event of a liquidation of the Company, then any such Award shall be paid or distributed immediately prior to such Change of Control, except as otherwise provided by the Committee in accordance with Section 16.1(f).
(f) In its discretion, and on such terms and conditions as it deems appropriate, the Committee may provide, either by the terms of the Award Agreement applicable to any Award or by resolution adopted prior to the occurrence of the Change of Control, that any outstanding Award shall be adjusted by substituting for each Share subject to such Award immediately prior to the transaction resulting in the Change of Control the consideration (whether stock or other securities of the surviving corporation or any successor corporation to the Company, or a parent or subsidiary thereof, or that may be issuable by another corporation that is a party to the transaction resulting in the Change of Control) received in such transaction by holders of Shares for each Share held on the closing or effective date of such transaction, in which event the aggregate Option Price or Xxxxx Xxxxx, as applicable, of the Award shall remain the same; provided, however, that if such consideration received in such transaction is not solely stock of a successor, surviving or other corporation, the Committee may provide for the consideration to be received upon exercise or payment of an Award, for each Share subject to such Award, to be solely stock or other securities of the successor, surviving or other corporation, as applicable, equal in fair market value, as determined by the Committee, to the per-Share consideration received by holders of Shares in such transaction.
(g) In its discretion, and on such terms and conditions as it deems appropriate, the Committee may provide, either by the terms of the Award Agreement applicable to any Award or by resolution adopted prior to the occurrence of the Change of Control, that any outstanding Award (or portion thereof) shall be converted into a right to receive cash, on or as soon as practicable following the closing date or expiration date of the transaction resulting in the Change of Control in an amount equal to the highest value of the consideration to be received in connection with such transaction for one Share, or, if higher, the highest Fair Market Value of a Share during the thirty (30) consecutive business days immediately prior to the closing date or expiration date of such transaction, less the per-Share Option Price, Xxxxx Xxxxx or outstanding unpaid purchase price, as applicable to the Award, multiplied by the number of Shares subject to such Award, or the applicable portion thereof.
(h) The Committee may, in its discretion, provide that an Award can or cannot be exercised after, or will otherwise terminate or not terminate as of, a Change of Control.
Appears in 1 contract
Treatment of Outstanding Awards. Executive will have Performance Stock Awards outstanding In the event of a Change of Control, unless otherwise specifically prohibited by any applicable laws, rules or regulations or otherwise provided in any applicable Award Agreement, as in effect prior to the occurrence of the Retirement Date. In consideration Change of Control, specifically with respect to a Change of Control:
(a) Immediately prior to the occurrence of such Change of Control, any and all Options, SARs and Other Stock-Based Awards (if applicable) which are outstanding shall immediately become fully exercisable as to all Shares covered thereby, notwithstanding anything to the contrary in the Plan or the Award Agreement, and, in the event of a Participant’s Termination (including termination of employment or services with any successor of the Company, a Subsidiary or an Affiliate) under any circumstances during the one year period following the Change of Control, all Options, SARs and Other Stock-Based Awards (if applicable) held by such Participant (or such Participant’s beneficiary or transferee) shall remain exercisable at least until the first anniversary of such Termination or the expiration of the term of such Option, SAR or Other Stock-Based Award, if earlier.
(b) Immediately prior to the occurrence of such Change of Control, any restrictions, performance goals or other conditions applicable to Restricted Stock Units, Shares of Restricted Stock and Other Stock-Based Awards previously awarded to Participants shall be immediately canceled or deemed achieved, the Period of Restriction applicable thereto shall immediately terminate, and all restrictions on transfer, sale, assignment, pledge or other disposition applicable to any such Shares of Restricted Stock shall immediately lapse, notwithstanding anything to the contrary in the Plan or the Award Agreement.
(c) Immediately prior to the occurrence of such Change of Control, all Awards which are outstanding shall immediately become fully vested and nonforfeitable.
(d) The target payment opportunities attainable under any outstanding Awards of Performance Units, Performance Shares, Cash-Based Awards and other Awards shall be deemed to have been fully earned for the Executive’s execution entire Performance Period(s) immediately prior to the effective date of the release set forth belowChange of Control, unless actual performance exceeds the Company hereby agrees that each such award target, in which case actual performance shall be afforded treatment consistent used. There shall be paid out to each Participant holding such an Award denominated in Shares, not later than five (5) days prior to the effective date of the Change of Control, a pro rata number of Shares (or the equivalent Fair Market Value thereof, as determined by the Committee, in cash) based upon an assumed achievement of all relevant targeted performance goals, unless actual performance exceeds the target, in which case actual performance shall be used, and upon the length of time within the Performance Period which has elapsed prior to the Change of Control. Awards denominated in cash shall be paid pro rata to applicable Participants in cash within thirty (30) days following the effective date of the Change of Control, with Executive’s voluntary “Retirement” the pro-ration determined as defined a function of the length of time within the Performance Period which has elapsed prior to the Change of Control, and based on an assumed achievement of all relevant targeted performance goals, unless actual performance exceeds the target, in which case actual performance shall be used.
(e) Any Award the 2013 Stock and Incentive Compensation Plan (“Equity Plan”) and payment or settlement of which was deferred under Section 19.6 or otherwise shall be paid or distributed immediately prior to the Change of Control, except as otherwise provided by the Committee in accordance with Section 14.1(f) .
(f) In its discretion, and on such terms and conditions as it deems appropriate, the Committee may provide, either by the terms of the Executive’s Performance Stock Award Agreements (“Agreement applicable to any Award Agreements”), without regard or by resolution adopted prior to the Executive’s age as occurrence of the date Change of his Retirement. ThereforeControl, on December 31, 2019, Executive that any outstanding Award shall be vested and shares prorated as follows: adjusted by substituting for each Share subject to such Award immediately prior to the transaction resulting in the Change of Control the consideration (1) 100% whether stock or other securities of the stock award for the 2017-2019 performance period, (2) 67% of the stock award for the 2018-2020 performance period and (3) 33% of the stock award for the 2019-2021 performance period. The number of shares of the Company’s common stock awarded under the Award Agreements shall be determined by the Compensation Committee following the conclusion of each performance period and the actual performance results achieved. Shares awarded under each outstanding Performance Stock Award will be issued to Executive as soon as reasonably practicable but within no more than 30 days following the determination by the Compensation Committee of the amount earned under each such award following the end of the applicable performance period. All such amounts shall be subject to appropriate payroll deductions and income tax withholdings, and shall remain subject to the Company’s policies regarding recovery of compensation (commonly referred to as the “clawback” policy) that was based upon the achievement of certain financial results (as reflected in the financial statement of the Company surviving corporation or otherwise) or other performance metrics that, in either case, were subsequently found to be materially inaccurate. In addition, the Parties acknowledge and agree that nothing in this Agreement shall limit the Compensation Committee’s discretion in determining the amount earned under any Award Agreement or to reduce or eliminate the amount due under any Award Agreement should it hereafter determine that Executive engaged in conduct at any time while employed by the Company or during the Restricted Period (as defined in Paragraph 9(c) of the Employment Agreement) that is or was in material violation of the policies of the Company, materially injurious successor corporation to the Company, or undertaken without good faith and a parent or subsidiary thereof, or that may be issuable by another corporation that is a party to the reasonable belief that such conduct was transaction resulting in the best interest Change of Control) received in such transaction by holders of Shares for each Share held on the closing or effective date of such transaction, in which event the aggregate Option Price or Xxxxx Xxxxx, as applicable, of the CompanyAward shall remain the same; provided, however, that if such consideration received in such transaction is not solely stock of a successor, surviving or other corporation, the Committee may provide for the consideration to be received upon exercise or payment of an Award, for each Share subject to such Award, to be solely stock or other securities of the successor, surviving or other corporation, as applicable, equal in fair market value, as determined by the Committee, to the per-Share consideration received by holders of Shares in such transaction.
(g) In its discretion, and on such terms and conditions as it deems appropriate, the Committee may provide, either by the terms of the Award Agreement applicable to any Award or by resolution adopted prior to the occurrence of the Change of Control, that any outstanding Award (or portion thereof) shall be converted into a right to receive cash, on or as soon as practicable following the closing date or expiration date of the transaction resulting in the Change of Control in an amount equal to the highest value of the consideration to be received in connection with such transaction for one Share, or, if higher, the highest Fair Market Value of a Share during the thirty (30) consecutive business days immediately prior to the closing date or expiration date of such transaction, less the per-Share Option Price, Xxxxx Xxxxx or outstanding unpaid purchase price, as applicable to the Award, multiplied by the number of Shares subject to such Award, or the applicable portion thereof.
(h) The Committee may, in its discretion, provide that an Award can or cannot be exercised after, or will otherwise terminate or not terminate as of, a Change of Control.
Appears in 1 contract
