Common use of Change in Control Clause in Contracts

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets.

Appears in 27 contracts

Samples: Indemnity Agreement (Castle Biosciences Inc), Indemnity Agreement (Metacrine, Inc.), Indemnity Agreement (Poseida Therapeutics, Inc.)

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Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange said Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets.

Appears in 20 contracts

Samples: Indemnity Agreement (Shotspotter, Inc), Indemnification Agreement (Maxcyte, Inc.), Indemnity Agreement (Surrozen, Inc./De)

Change in Control. For purposes of this Agreement, a “Change change in Controlcontrol” shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange ActAct of 1934, as amended), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, voting securities; or (ii) during any period of two consecutive years, individuals who on at the date beginning of this Agreement are members such period constitute the Board and any new director whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the Board (directors then still in office who either were directors at the “Incumbent Board”) 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 members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), thereof; or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which that would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, ; or (iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) of all or substantially all of the Company’s assets.

Appears in 15 contracts

Samples: Indemnity Agreement (Cadence Design Systems Inc), Indemnity Agreement (Cadence Design Systems Inc), Indemnity Agreement (Cadence Design Systems Inc)

Change in Control. Executive shall have the right to terminate his employment hereunder on or within six (6) months following a Change in Control. Such termination shall be deemed a termination for Good Reason hereunder. For purposes of this Agreement, a “Agreement "Change in Control" shall be deemed to have occurred if mean that any of the following events has occurred: (iA) any "person” (" or "group" of persons, as such term is terms are used in Sections 13(d) 13 and 14(d) 14 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), other than a trustee or other fiduciary holding securities under an any employee benefit plan sponsored by the Company, becomes the "beneficial owner", as such term is used in Section 13 of the Exchange Act, (irrespective of any vesting or waiting periods) of (I) Common Stock or any class of stock convertible into Common Stock and/or (II) Common OP Units or preferred units or any other class of units convertible into Common OP Units, in an amount equal to twenty (20%) percent or more of the sum total of the Common Stock and the Common OP Units (treating all classes of outstanding stock, units or other securities convertible into stock units as if they were converted into Common Stock or Common OP Units as the case may be and then treating Common Stock and Common OP Units as if they were a single class) issued and outstanding immediately prior to such acquisition as if they were a single class and disregarding any equity raise in connection with the financing of such transaction; (B) any Common Stock is purchased pursuant to a tender or exchange offer other than an offer by the Company; (C) the dissolution or liquidation of the Company or a corporation owned directly the consummation of any merger or indirectly by the stockholders consolidation of the Company in or any sale or other disposition of all or substantially all of its assets, if the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities shareholders of the Company representing 20% or more and unitholders of the total voting power represented by the Company’s then outstanding Voting SecuritiesPartnership taken as a whole and considered as one class immediately before such transaction own, immediately after consummation of such transaction, equity securities and partnership units possessing less than fifty (ii50%) individuals who on the date of this Agreement are members percent of the Board surviving or acquiring company and partnership taken as a whole; or (D) a turnover, during any two (2) year period, of the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (providedBoard, however, that if without the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote consent of the remaining members of the Incumbent Board then still in office, such new member shall be considered as a member to the appointment of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsnew Board members.

Appears in 12 contracts

Samples: Employment Agreement (Mack Cali Realty Corp), Employment Agreement (Mack Cali Realty L P), Employment Agreement (Mack Cali Realty Corp)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if mean the consummation of a reorganization, merger, consolidation, statutory share exchange or similar form of corporate transaction involving the Company or a subsidiary of the Company (ia “Reorganization”), or the sale or other disposition of all or substantially all of the Company’s assets (a “Sale”) any or the acquisition of assets or stock of another corporation or other entity (an person” Acquisition”), unless immediately following such Reorganization, Sale or Acquisition: (A) all or substantially all of the individuals and entities who were the beneficial owners (as such term is used defined in Sections 13(d) Rule 13d-3 of the General Rules and 14(d) of Regulations under the Securities Exchange Act of 19341934 Act, as amended (the Exchange ActBeneficial Owners”)), other respectively, of the outstanding Company Stock and the Company’s then outstanding securities eligible to vote for the election of directors (“Company Voting Securities”) immediately prior to such Reorganization, Sale or Acquisition beneficially own, directly or indirectly, more than 50% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the entity resulting from or surviving such Reorganization, Sale or Acquisition (including, without limitation, an entity which as a trustee or other fiduciary holding securities under an employee benefit plan result of such transaction owns the Company or a corporation owned all or substantially all of the Company’s assets or stock either directly or indirectly by through one or more subsidiaries, the stockholders of the Company “Surviving Entity”) in substantially the same proportions as their ownership ownership, immediately prior to such Reorganization, Sale or Acquisition, of stock the outstanding Company Stock and the outstanding Company Voting Securities, as the case may be, and (B) no person (other than (x) the Company or any subsidiary of the Company, (y) the Surviving Entity or its ultimate parent entity, or (z) any employee benefit plan (or related trust) sponsored or maintained by any of the foregoing) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act)Beneficial Owner, directly or indirectly, of securities 50% or more of the Company representing 20total common stock or 50% or more of the total voting power represented by the Company’s then outstanding Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason outstanding voting securities eligible to constitute at least a majority elect directors of the members of the Board (provided, however, that if the appointment or election (or nomination for election) Surviving Entity. A Change in Control shall not include a public offering of any new Board member was approved class or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsequity securities pursuant to a registration statement filed by the Company under the Securities and Exchange Act of 1933, as amended.

Appears in 10 contracts

Samples: Employment Agreement (FirstCash Holdings, Inc.), Employment Agreement (FirstCash Holdings, Inc.), Employment Agreement (First Cash Financial Services Inc)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange said Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board of Directors of the Company (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board of Directors of the Company (the “Board”) (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets.

Appears in 8 contracts

Samples: Indemnity Agreement (Ovid Therapeutics Inc.), Indemnity Agreement (Applied Therapeutics Inc.), Indemnity Agreement (UBI Blockchain Internet LTD-DE)

Change in Control. For purposes of this Agreement, a “Change in Control” shall mean, and shall be deemed to have occurred if if, on or after the date of this Agreement: (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)amended) or group acting in concert, other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company acting in such capacity or a corporation owned directly or indirectly by the stockholders shareholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange said Act), directly or indirectly, of securities of the Company representing 20more than 50% or more of the total voting power represented by the Company’s then outstanding Voting Securities, voting securities; (ii) during any period of two (2) consecutive years, individuals who on at the date beginning of this Agreement are members such period constitute the Board and any new director whose election by the Board or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds (2/3) of the Board (directors then still in office who either were directors at the “Incumbent Board”) 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 members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or thereof; (iii) the stockholders shareholders of the Company approve a merger or consolidation of the Company with any other corporation, corporation other than a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least eighty percent (80% %) of the total voting power represented by the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, ; or (iv) the stockholders shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of related transactions) all or substantially all of the Company’s assets.

Appears in 8 contracts

Samples: Indemnification Agreement (Skywest Inc), Indemnification Agreement (Skywest Inc), Indemnification Agreement (Merit Medical Systems Inc)

Change in Control. For purposes of this Agreement, a “A Change in Control” Control of the Corporation shall be deemed to have occurred if (i) any “personPerson(as such term is used in Sections Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), ) (other than a the Corporation, any trustee or other fiduciary holding securities under an employee benefit plan of the Company Corporation, or a any corporation owned owned, directly or indirectly indirectly, by the stockholders of the Company Corporation in substantially the same proportions as their ownership of stock of the CompanyCorporation), is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company Corporation representing 20more than 50% or more of the total combined voting power represented by of the CompanyCorporation’s then outstanding Voting Securitiessecurities, (ii) during any 12-month period (not including any period prior to the execution of this Agreement), individuals who on at the date beginning of such period constituted the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Corporation to effect a transaction described in subclauses (i), (iii) or (iv) of this Agreement are paragraph) whose election by the Board or nomination for election by the Corporation’s stockholders was approved by a vote of at least 66-2/3% of the members of the Board (then still in office who either were directors at the “Incumbent Board”) 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 members of the Board (providedthereof, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the Corporation’s stockholders of the Company approve a merger or consolidation of the Company Corporation with any other corporation, other than (A) a merger or consolidation which would result in the Voting Securities voting securities of the Company Corporation outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80more than 50% of the total combined voting power represented by the Voting Securities of the Company voting securities of the Corporation or such surviving entity outstanding immediately after such merger or consolidationconsolidation or (B) a merger or consolidation effected to implement a recapitalization of the Corporation (or similar transaction) in which no “person” (as defined above) acquires more than 50% of the combined voting power of the Corporation’s then outstanding securities, or (iv) the stockholders of the Company Corporation approve a plan of complete liquidation of the Company Corporation or an agreement for the sale or disposition by the Company Corporation of (in one transaction or a series of transactions) all or substantially all of the CompanyCorporation’s assets.

Appears in 7 contracts

Samples: Employment Agreement (Anadigics Inc), Anadigics Inc, Anadigics Inc

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed mean the occurrence of any of the following events subsequent to have occurred if the date of this Agreement: (i) the acquisition of control of the Company or the Bank as defined in the rules and regulations of the applicable banking regulators on the date hereof (provided that in applying the definition of Change in Control as set forth under the rules and regulations of the applicable banking regulators, the Board of Directors of Employers shall substitute its judgment for that of the applicable banking regulators); (ii) an event that would be required to be reported in response to Item 5.01(a) of the Current Report on Form 8-K pursuant to Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), or any successor thereto, whether or not any class of securities of the Company is registered under the Exchange Act; (iii) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act), after the date hereof, other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock any Affiliate of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 2025% or more of the total combined voting power represented of the Company's then outstanding securities; (iv) the sale or other disposition of all or substantially all of the assets of the Company or the transfer by the Company of greater than 25% of the voting securities of the Company’s then outstanding Voting Securities; or (v) during any period of three consecutive years, (ii) individuals who on at the date beginning of this Agreement are members such period constitute the Board of Directors of the Board (the “Incumbent Board”) Company cease for any reason to constitute at least a majority thereof, unless the election, or the nomination for election by stockholders, of each new director was approved by a vote of at least two-thirds of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board directors then still in office, such new member shall be considered as a member office who were directors at the beginning of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsperiod.

Appears in 7 contracts

Samples: Employment Agreement (Pacific Premier Bancorp Inc), Employment Agreement (Pacific Premier Bancorp Inc), Employment Agreement (Pacific Premier Bancorp Inc)

Change in Control. a. For purposes of this Agreementletter, a “Change "change in Control” control" of the Company shall be deemed to have occurred if occur as of the date on which: (i) any “person” a person or entity or group of persons or entities, acting in concert (as such term "Person") shall, in a transaction in which the Company is used in Sections 13(d) and 14(d) not a party, become the direct or indirect beneficial owner (within the meaning of Rule 13d-3 of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, from time to time) of securities of the Company representing 20% fifty-one percent (51%) or more of the total combined voting power represented by of the Company’s then issued and outstanding Voting Securities, common stock of the Company (a "Majority Owner") or (ii) individuals the majority of the Company's Board of Directors is no longer comprised of the incumbent Directors who constitute the Board of Directors on the date of this Agreement are members letter and any other individual(s) who becomes a Director subsequent to the date of this letter whose initial election or nomination for election as a Director, as the Board (the “Incumbent Board”) cease for any reason to constitute case may be, was approved by at least a majority of the members Directors who comprise the incumbent Directors as of the Board date of such election or nomination ("Incumbent Directors"); provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote composition of the members Company's Board of Directors changes after or in conjunction with a transaction to which the Company is a party that results in a Person becoming a Majority Owner then, for purposes of this Paragraph 2.a., and notwithstanding the approval of the majority of the Incumbent Board then still Directors, a change in officecontrol will be deemed to have taken place if, such new member shall be considered as and on the date that, there is a member change in more than one-third (1/3) of the Incumbent Board), Board of Directors during the twelve (12) month period following such a transaction or in more than one-half (iii1/2) the stockholders of the Company approve Board of Directors during the twenty-four (24) month period following such a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetstransaction.

Appears in 6 contracts

Samples: Galoob Lewis Toys Inc /De/, Galoob Lewis Toys Inc /De/, Galoob Lewis Toys Inc /De/

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed mean the occurrence of any of the following events subsequent to have occurred if the date of this Agreement: (i) the acquisition of control of the Company or the Bank as defined in the rules and regulations of the applicable banking regulators on the date hereof (provided that in applying the definition of Change in Control as set forth under the rules and regulations of the applicable banking regulators, the Board of Directors of the Bank shall substitute its judgment for that of the applicable banking regulators); (ii) an event that would be required to be reported in response to Item 5.01(a) of the Current Report on Form 8-K pursuant to Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), or any successor thereto, whether or not any class of securities of the Company is registered under the Exchange Act; (iii) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act), after the date hereof, other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock any Affiliate of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 2025% or more of the total combined voting power represented of the Company's then outstanding securities; (iv) the sale or other disposition of all or substantially all of the assets of the Company or the transfer by the Company of greater than 25% of the voting securities of the Company’s then outstanding Voting Securities; or (v) during any period of three consecutive years, (ii) individuals who on at the date beginning of this Agreement are members such period constitute the Board of Directors of the Board (the “Incumbent Board”) Company cease for any reason to constitute at least a majority thereof, unless the election, or the nomination for election by stockholders, of each new director was approved by a vote of at least two-thirds of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board directors then still in office, such new member shall be considered as a member office who were directors at the beginning of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsperiod.

Appears in 6 contracts

Samples: Employment Agreement (Pacific Premier Bancorp Inc), Employment Agreement (Pacific Premier Bancorp Inc), Employment Agreement (Pacific Premier Bancorp Inc)

Change in Control. For purposes Subject to any restrictions in that certain Merger and Share Exchange Agreement dated as of January 8, 2014 by and among Infinity Cross Border Acquisition Corporation, Gxxxx Acquisition Corporation, Gxxxx Merger Subsidiary, Inc., Gxxxx Energy Inc. (now known as Gxxxx Energy Technology Inc.) and Infinity-C.S.V.C. Management Ltd. and that certain Termination and Release Agreement dated as of even date herewith by and between Executive and Gxxxx Energy Technology Inc., in the event of a Change in Control, 50 percent of Executive’s then-unvested restricted shares of stock of the Company will accelerate and vest in full and 50 percent of the Executive’s then-unvested options for purchase of shares of stock of the Company will accelerate, vest in full and become fully exercisable and if this AgreementAgreement is not assumed, a and Executive’s employment is not continued, by the resulting, surviving or successor entity from such Change in Control (“Successor”), and the then-remaining unvested shares of restricted stock and unvested and options for purchase of shares of stock of the Company are not replaced with incentive grants with similar value and terms in the Successor (“Replacement Grants”), or if Executive is terminated without Cause or resigns for Good Reason within 12 months of such Change in Control, then the remainder of the Executive’s restricted shares of stock of the Company and options for purchase of shares of stock of the Company and all Replacement Grants, if applicable, will accelerate and immediately vest in full. The term “Change in Control” shall be deemed to have occurred if mean (i) any “person” (as such term is used in Sections 13(d) and 14(d) the sale of all or substantially all of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than a trustee or other fiduciary holding securities under an employee benefit plan assets of the Company and its subsidiaries on a consolidated basis to an unrelated person or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securitiesentity, (ii) individuals who on a merger, reorganization or consolidation in which the date of this Agreement Company’s outstanding equity interests are members converted into or exchanged for securities of the Board (successor entity and the “Incumbent Board”) cease for any reason holders of the Company’s outstanding voting power immediately prior to constitute such transaction do not own at least a majority of the members outstanding voting power of the Board (provided, however, that if the appointment or election (or nomination for election) successor entity immediately upon completion of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board)transaction, or (iii) prior to the stockholders effective date of registration of the Company approve a merger or consolidation sale of any of its securities pursuant to the Securities Act of 1933, as amended, the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all effecting the issuance of voting securities to one or substantially all more persons or entities not then an affiliate of Company, resulting in shareholders of Company prior to any such transaction(s) not retaining at least 51 percent of the Company’s assetsissued and outstanding voting securities of the Company following the transaction(s).

Appears in 6 contracts

Samples: Employment Agreement (Glori Acquisition Corp.), Employment Agreement (Glori Energy Inc.), Employment Agreement (Glori Energy Inc.)

Change in Control. For purposes of this Agreement, a “the term ----------------- "Change in Control" shall be deemed to have occurred if mean (i) any "person” (" as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended 1934 (the “Exchange "Act”), ") (other than a the Company, any trustee or other fiduciary holding securities under an any employee benefit plan of the Company Company, or a corporation owned any company owned, directly or indirectly indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of common stock of the Company), is or becomes becoming the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% twenty-five percent (25%) or more of the total combined voting power represented of the Company's then outstanding securities; (ii) during any period of two (2) consecutive years, individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii), or (iv) of this paragraph or a director whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 promulgated under the Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than a member of the Board) whose election by the Board or nomination for election by the Company’s then outstanding Voting Securities, (ii) individuals who on the date 's shareholders was approved by a vote of this Agreement are members at least two-thirds of the Board directors then still in office who either were directors at the beginning of the two (the “Incumbent Board”2) year period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or ; (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80% more than fifty percent (50%) of the total combined voting power represented by of the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; provided, however, that a merger or the stockholders consolidation effected to implement a recapitalization of the Company approve (or similar transaction) in which no person (other than those covered in the exceptions in (i) above) acquires more than twenty-five percent (25%) of the combined voting power of the Company's then outstanding securities shall not constitute a Change in Control; or (iv) approval by the shareholders of the Company of a plan of complete liquidation of the Company or an agreement for the closing of the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets's assets other than the sale of all or substantially all of the assets of the Company to a person or persons who beneficially own, directly or indirectly, at least fifty percent (50%) or more of the combined voting power of the outstanding voting securities of the Company at the time of the sale.

Appears in 6 contracts

Samples: Employment Agreement (Wilshire Financial Services Group Inc), Employment Agreement (Wilshire Financial Services Group Inc), Employment Agreement (Wilshire Financial Services Group Inc)

Change in Control. No compensation shall be payable under this Agreement unless and until (a) there shall have been a Change in Control of the Company, while the Executive is still an employee of the Company and (b) the Executive's employment by the Company thereafter shall have been terminated in accordance with Section 3. For purposes of this Agreement, a Change in Control” Control of the Company shall be deemed to have occurred if (i) there shall be consummated (x) any “person” consolidation or merger of the Company in which the Company is not the continuing or surviving corporation or pursuant to which shares of the Company's Common Stock would be converted into cash, securities or other property, other than a merger of the Company in which the holders of the Company's Common Stock immediately prior to the merger have the same proportionate ownership of common stock of the surviving corporation immediately after the merger, or (y) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company, or (ii) the stockholders of the Company approved any plan or proposal for the liquidation or dissolution of the Company, or (iii) any person (as such term is used in Sections 13(d) and 14(d14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) (hereinafter an "Acquiring Person"), other than a trustee or other fiduciary holding securities under an employee benefit plan shall become the beneficial owner (within the meaning of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, ) (hereinafter "Beneficial Owner") of securities of the Company representing 20% or more of the total combined voting power represented by of the Company’s 's then outstanding Voting Securitiessecurities, or (iiiv) during any period of two consecutive years, individuals who on at the date beginning of this Agreement are members such period constitute the entire Board of the Board (the “Incumbent Board”) Directors shall cease for any reason to constitute a majority thereof unless the election, or the nomination for election by the Company's stockholders, of each new director was approved by a vote of at least a majority two-thirds of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board directors then still in office, such new member shall be considered as a member office who were directors at the beginning of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsperiod.

Appears in 6 contracts

Samples: Severance Compensation Agreement (Zymetx Inc), Severance Compensation Agreement (Zymetx Inc), Severance Compensation Agreement (Zymetx Inc)

Change in Control. For purposes of this Agreement, a “the term "Change in Control" shall be deemed to have occurred if mean (i) any "person” (" as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended 1934 (the “Exchange "Act”), ") (other than a the Company, any trustee or other fiduciary holding securities under an any employee benefit plan of the Company Company, or a corporation owned any company owned, directly or indirectly indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of common stock of the Company), is or becomes becoming the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% twenty-five percent (25%) or more of the total combined voting power represented of the Company's then outstanding securities; (ii) during any period of two (2) consecutive years, individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii), or (iv) of this paragraph or a director whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 promulgated under the Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than a member of the Board) whose election by the Board or nomination for election by the Company’s then outstanding Voting Securities, (ii) individuals who on the date 's shareholders was approved by a vote of this Agreement are members at least two-thirds of the Board directors then still in office who either were directors at the beginning of the two (the “Incumbent Board”2) year period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or ; (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80% more than fifty percent (50%) of the total combined voting power represented by of the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; provided, however, that a merger or the stockholders consolidation effected to implement a recapitalization of the Company approve (or similar transaction) in which no person (other than those covered in the exceptions in (i) above) acquires more than twenty-five percent (25%) of the combined voting power of the Company's then outstanding securities shall not constitute a Change in Control; or (iv) approval by the shareholders of the Company of a plan of complete liquidation of the Company or an agreement for the closing of the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets's assets other than the sale of all or substantially all of the assets of the Company to a person or persons who beneficially own, directly or indirectly, at least fifty percent (50%) or more of the combined voting power of the outstanding voting securities of the Company at the time of the sale.

Appears in 5 contracts

Samples: Employment Agreement (Wilshire Real Estate Investment Trust Inc), Employment Agreement (Wilshire Real Estate Investment Trust Inc), Employment Agreement (Wilshire Real Estate Investment Trust Inc)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting SecuritiesSecurities (as defined below), (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets.

Appears in 5 contracts

Samples: Indemnity Agreement (MAIA Biotechnology, Inc.), Indemnity Agreement (Airship AI Holdings, Inc.), Indemnity Agreement (MAIA Biotechnology, Inc.)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, (ii) individuals who on the date of this Agreement are members of the Company’s Board of Directors (the “Board of Directors” and altogether, the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets.

Appears in 5 contracts

Samples: Indemnity Agreement (Mirum Pharmaceuticals, Inc.), Indemnity Agreement (Spruce Biosciences, Inc.), Indemnity Agreement (Artiva Biotherapeutics, Inc.)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if means (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”amended), other than a Subsidiary or a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the CompanySubsidiary, is or becomes the “beneficial ownerBeneficial Owner” (as defined in Rule 13d-3 under the Exchange said Act), directly or indirectly, of securities of the Company representing 2050% or more of the total voting power represented by the Company’s then outstanding Voting Securitiescapital stock (provided, however, that following the consummation of a firmly underwritten initial public offering registered under the Securities Act of 1933, as amended, of the Company’s capital stock, a person’s becoming the Beneficial Owner, directly or indirectly, of securities representing more than 50% of the total voting power represented by the Company’s then outstanding capital stock shall not be a Change in Control if such person has become such owner by becoming the Beneficial Owner of shares of the Company’s Class B Common Stock) or (ii) during any period of two consecutive years, individuals who on at the date beginning of this Agreement are members such period constitute the Board and any new director whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the Board (directors then still in office who either were directors at the “Incumbent Board”) 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 members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board)thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which that would result in the Voting Securities outstanding capital stock of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities capital stock of the surviving entity) at least 8050% of the total voting power represented by the Voting Securities capital stock of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) of all or substantially all of the Company’s assets.

Appears in 5 contracts

Samples: Indemnity Agreement (Bloom Energy Corp), Indemnity Agreement (Cloudera, Inc.), Indemnity Agreement (Bloom Energy Corp)

Change in Control. For purposes of this Agreement, a The term “Change in Control” of Employer shall mean a change in control of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934 as in effect on the date of this Agreement or, if Item 6(e) is no longer in effect, any regulations issued by the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934 that serve similar purposes; provided that, without limitation, such a Change in Control shall be deemed to have occurred if and when (i) any “person” person (as such term is used in Sections 13(d) and 14(d14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or ) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act), Act of 1934) directly or indirectly, indirectly of equity securities of the Company Employer representing 20% 20 percent or more of the total combined voting power represented of Employer’s then-outstanding equity securities, except that this provision shall not apply to any person currently owning at least five percent or more of the combined voting power of Employer’s currently outstanding equity securities or to an acquisition of up to 20 percent of the then-outstanding voting securities that has been approved by at least 75 percent of the Company’s then outstanding Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board of Directors who are not affiliates or associates of such person; (ii) during the period of this Agreement, individuals who, at the beginning of such period, constituted the Board of Directors of Employer (the “Incumbent BoardOriginal Directors) ), cease for any reason to constitute at least a majority of thereof unless the members of the Board (provided, however, that if the appointment or election (or nomination for election) election of any each new Board member director was approved or recommended (an “Approved Director”) by a majority the vote of the members a Board of the Incumbent Board then still in office, such new member shall be considered as a member Directors constituted entirely of the Incumbent Board), or Original Directors and/or Approved Directors; (iii) a tender offer or exchange offer is made whereby the stockholders effect of such offer is to take over and control Employer, and such offer is consummated for the equity securities of Employer representing 20 percent or more of the Company approve combined voting power of Employer’s then-outstanding voting securities; (iv) Employer is merged, consolidated, or enters into a merger reorganization transaction with another person and, as the result of such merger, consolidation, or consolidation reorganization, less than 75 percent of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities equity securities of the surviving entity) at least 80% of or resulting person shall then be owned in the total voting power represented aggregate by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the former stockholders of the Company approve a plan of complete liquidation of the Company Employer; or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactionsv) all or Employer transfers substantially all of the Companyits assets to another person or entity that is not a wholly owned subsidiary of Employer. Sales of Employer’s assetsCommon Stock beneficially owned or controlled by Employee shall not be considered in determining whether a Change in Control has occurred.

Appears in 5 contracts

Samples: Employment Agreement (American Outdoor Brands, Inc.), Employment Agreement (American Outdoor Brands, Inc.), Employment Agreement (Smith & Wesson Holding Corp)

Change in Control. For purposes of this Agreement, a “the term "Change in Control" shall be deemed to have occurred if mean (i) any "person” (" as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended 1934 (the “Exchange "Act”), ") (other than a the Company, any trustee or other fiduciary holding securities under an any employee benefit plan of the Company Company, or a corporation owned any company owned, directly or indirectly indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock Common Stock of the Company), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% twenty-five percent (25%) or more of the total combined voting power represented of the Company's then outstanding securities; (ii) during any period of two (2) consecutive years (not including any period prior to the Commencement Date), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii), or (iv) of this paragraph) whose election by the Board or nomination for election by the Company’s then outstanding Voting Securities, (ii) individuals who on the date 's stockholders was approved by a vote of this Agreement are members at least two-thirds of the Board (directors then still in office who either were directors at the “Incumbent Board”) beginning of the two-year period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or ; (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80% more than fifty percent (50%) of the total combined voting power represented by of the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; provided, however, that a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no person acquires more than twenty-five percent (25%) of the combined voting power of the Company's then outstanding securities shall not constitute a Change in Control of the Company; or (iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets's assets other than (x) the sale or disposition of all or substantially all of the assets of the Company to a person or persons who beneficially own, directly or indirectly, at least fifty percent (50%) or more of the combined voting power of the outstanding voting securities of the Company at the time of the sale or (y) pursuant to a spinoff type transaction, directly or indirectly, of such assets to the stockholders of the Company. In no event shall the Spinoff in and of itself constitute a Change in Control for purposes of this Agreement; provided, however, that the provisions of this Section 10 shall be operative immediately after consummation of the Spinoff.

Appears in 4 contracts

Samples: Employment Agreement (Strategic Industries Inc /Nj/), Employment Agreement (Strategic Industries Inc /Nj/), Employment Agreement (Strategic Industries Inc /Nj/)

Change in Control. Notwithstanding any vesting provisions identified in this Section 4, upon the occurrence of a "Change in Control" of the Company as defined herein, all unvested options granted pursuant to this Section 4 shall immediately vest and become fully exercisable and remain exercisable throughout their entire term. For purposes of this Agreement, a “the term "Change in Control" shall be deemed to mean that any one of the following events shall have occurred if occurred: (i) a person, partnership, joint venture, corporation or other entity, or two or more of any of the foregoing acting as a group (or a "person” (as such term is used in Sections 13(d) and 14(d" within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange "1934 Act"), other than the Company, a trustee or other fiduciary holding securities under majority-owned subsidiary of the Company, an employee benefit plan (or related trust) of the Company or a corporation owned such subsidiary, (A) directly or indirectly by become(s) after the stockholders effective date of grant of the Company in substantially stock options hereunder the same proportions as their ownership of stock of the Company, is or becomes the “"beneficial owner" (as defined in Rule 13d-3 13(d)(3) under the Exchange Act), directly or indirectly, 0000 Xxx) of securities of the Company representing 2015% or more of the total then outstanding voting power represented by stock of the Company or (B) makes a tender offer for 15% or more of the outstanding voting securities of the Company’s then outstanding Voting Securities, ; or (ii) individuals who on the date of this Agreement are members constitute a majority of the Board (of Directors at the “Incumbent Board”) cease for any reason to constitute effective date hereof, or individuals elected or nominated directly or indirectly by at least a majority of the members such current directors, no longer constitute a majority of the Company's Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), Directors'; or (iii) the stockholders Company enters into (A) a plan of complete liquidation of the Company approve or (B) an agreement for the sale or disposition of all or substantially all of the Company's assets (other than to a merger subsidiary of the Company); or consolidation (C) a merger, consolidation, or reorganization of the Company with or involving any other corporation, other than a merger merger, consolidation, or consolidation which reorganization that would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80% seventy-five percent (75%) of the total combined voting power represented by of the Voting Securities voting securities of the Company (or such surviving entity entity) outstanding immediately after such merger merger, consolidation or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsreorganization.

Appears in 4 contracts

Samples: Employment Agreement (Integrated Business Systems & Services Inc), Employment Agreement (Integrated Business Systems & Services Inc), Employment Agreement (Integrated Business Systems & Services Inc)

Change in Control. No compensation shall be payable under this Agreement unless and until (a) there has been a Change in Control of the Company while the Executive is still an employee of the Company and (b) the Executive's employment by the Company terminates in the circumstances specified in Section 3(a). For purposes of this Agreement, a "Change in Control" of the Company shall be deemed to have occurred if (i) there shall be consummated (x) any “person” consolidation or merger of the Company in which the Company is not the continuing or surviving corporation or pursuant to which shares of the Company's Common Stock would be converted into cash, securities or other property, other than a consolidation or merger of the Company in which the holders of the Company's Common Stock immediately prior to the consolidation or merger have substantially the same proportionate ownership of at least 65% of common stock of the surviving corporation immediately after the consolidation or merger, or (y) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company other than to a corporation in which the holders of the Company's Common Stock immediately prior to such transaction have substantially the same proportionate ownership of at least 65% of the common stock of such corporation, or (ii) the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company, or (iii) any person (as such term is used in Sections 13(d) and 14(d14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), other than a trustee or other fiduciary holding securities under an employee benefit plan shall become the beneficial owner (within the meaning of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, ) of securities more than 35% of the Company representing 20% Company's outstanding shares of Common Stock, or more (iv) during any period of two consecutive years during the term of this Agreement, individuals who at the beginning of the total voting power represented two year period constituted the entire Board do not for any reason constitute a majority thereof unless the election, or the nomination for election by the Company’s then outstanding Voting Securities's stockholders, (ii) individuals who on the date of this Agreement are members each new director was approved by a vote of at least five-eighths of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board directors then still in office, such new member shall be considered as a member office who were directors at the beginning of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsperiod.

Appears in 4 contracts

Samples: Severance Compensation Agreement (Datum Inc), Severance Compensation Agreement (Datum Inc), Severance Compensation Agreement (Datum Inc)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if is defined as the occurrence of any of the following events: (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (amended, the “Exchange Act”), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or ) becomes the “beneficial owner” (as defined in Rule 13d-3 under of the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more than fifty percent (50%) of the total voting power represented by the Company’s then then-outstanding Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (voting securities; provided, however, that if for purposes of this subclause (i) the appointment or election acquisition of additional securities by any one Person who is considered to own more than fifty percent (or nomination for election50%) of any new Board member was approved or recommended by a majority vote the total voting power of the members securities of the Incumbent Board then still in office, such new member shall Company will not be considered as a member Corporate Transaction; (ii) the consummation of the Incumbent Board), sale or disposition by the Company of all or substantially all of the Company’s assets; (iii) the stockholders consummation of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entityentity or its parent) at least 80% fifty percent (50%) of the total voting power represented by the Voting Securities voting securities of the Company or such surviving entity or its parent outstanding immediately after such merger or consolidation, or ; (iv) any other transaction which qualifies as a “corporate transaction” under Section 424(a) of the Code wherein the stockholders of the Company approve a plan give up all of complete liquidation of their equity interest in the Company or an agreement (except for the acquisition, sale or disposition by the Company transfer of (in one transaction or a series of transactions) all or substantially all of the outstanding shares of the Company’s assets) or (v) a change in the effective control of the Company that occurs on the date that a majority of members of the Board is replaced during any twelve (12) month period by member of the Board whose appointment or election is not endorsed by as majority of the members of the Board prior to the date of the appointment or election. For purpose of this subclause (v), if any Person is considered to be in effective control of the Company, the acquisition of additional control of the Company by the same Person will not be considered a Corporate Transaction. For purposes of this definition, persons will be considered to be acting as a group if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction with the Company. Notwithstanding the foregoing, a transaction will not be deemed a Corporate Transaction unless the transaction qualifies as a change in control event within the meaning of Code Section 409A, as it has been and may be amended from time to time, and any proposed or final Treasury Regulations and IRS guidance that has been promulgated or may be promulgated thereunder from time to time.

Appears in 4 contracts

Samples: Employment Agreement (Acucela Inc.), Employment Agreement (Acucela Inc.), Employment Agreement (Acucela Inc.)

Change in Control. For purposes of this Agreement, a “A Change in Control” shall be deemed to have occurred if (i) Control is defined as any one of the following occurrences: Any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended 1934 (the “Exchange Act”)), other becomes the “beneficial owner” (as such term is defined in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the total fair market value or total combined voting power of the Company’s then-outstanding securities entitled to vote generally in the election of directors; provided, however, that a Change in Control shall not be deemed to have occurred if such degree of beneficial ownership results from any of the following: (A) an acquisition of securities by any person who on the Effective Date is the beneficial owner of more than fifty percent (50%) of such voting power, (B) any acquisition of securities directly from the Company, including, without limitation, pursuant to or in connection with a public offering of securities, (C) any acquisition of securities by the Company, (D) any acquisition of securities by a trustee or other fiduciary holding securities under an employee benefit plan of the Company Company, or a corporation (E) any acquisition of securities by an entity owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock the voting securities of the Company, is ; or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly sale or indirectly, disposition of securities all or substantially all of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, assets (ii) individuals who on the date of this Agreement are members other than a sale or disposition to one or more subsidiaries of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent BoardCompany), or (iii) the stockholders of any transaction having similar effect is consummated; or the Company approve is party to a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result that results in the Voting Securities holders of voting securities of the Company outstanding immediately prior thereto continuing failing to continue to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80more than 50% of the total combined voting power represented by of the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, ; or the stockholders of the Company approve a plan of complete dissolution or liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets.

Appears in 4 contracts

Samples: Executive Employment Agreement (Grand Canyon Education, Inc.), Executive Employment Agreement (Grand Canyon Education, Inc.), Executive Employment Agreement (Grand Canyon Education, Inc.)

Change in Control. (a) For purposes of this Agreement, a “Change in Control” "CHANGE IN CONTROL" of the Company shall be deemed to have occurred if upon (i) the acquisition at any “person” time by a "PERSON" or "GROUP" (as such that term is used in Sections 13(d) and 14(d14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”"EXCHANGE ACT")) (excluding, other than a trustee for this purpose, the Company or other fiduciary holding securities under an any of its subsidiaries, any employee benefit plan of the Company or any of its subsidiaries, an underwriter temporarily holding securities pursuant to such securities, or a corporation owned owned, directly or indirectly indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “) of beneficial owner” ownership (as defined in Rule 13d-3 under the Exchange Act), ) directly or indirectly, of securities of the Company representing 2025% or more of the total combined voting power represented by in the election of directors of the then-outstanding securities of the Company or any successor of the Company’s then outstanding Voting Securities, ; (ii) individuals who on the date termination of this Agreement are members of the Board (the “Incumbent Board”) cease service as directors, for any reason to constitute other than death, disability or retirement from the Board, during any period of two consecutive years or less, of individuals who at least the beginning of such period constituted a majority of the members Board, unless the election of the Board (provided, however, that if the appointment or election (or nomination for election) election of any each new Board member director during such period was approved or recommended by a majority vote of the members at least two-thirds of the Incumbent Board then directors still in office, such new member shall be considered as a member office who were directors at the beginning of the Incumbent Board), or period; (iii) approval by the stockholders of the Company approve a merger or consolidation of liquidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent Company; (either iv) approval by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan and consummation of complete liquidation any sale or disposition, or series of related sales or dispositions, of 50% or more of the assets or earning power of the Company; or (v) approval by the stockholders of the Company and consummation of any merger or an agreement for the sale consolidation or disposition by statutory share exchange to which the Company is a party as a result of (in one transaction or a series of transactions) all or substantially all which the persons who were stockholders of the Company’s assetsCompany immediately prior to the effective date of the merger or consolidation or statutory share exchange shall have beneficial ownership of less than 50% of the combined voting power in the election of directors of the surviving corporation following the effective date of such merger or consolidation or statutory share exchange.

Appears in 4 contracts

Samples: Change in Control Agreement (Spherion Corp), Change in Control Agreement (Spherion Corp), Change in Control Agreement (Spherion Corp)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if mean: (i) if any “person” (or “group” as such term is those terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than a trustee ) or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Companyany successors thereto, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange ActAct or any successor thereto), directly or indirectly, of securities of the Company representing 2050% or more of the total combined voting power represented by of the Company’s then outstanding Voting Securitiessecurities, provided, that the acquisition of additional securities by any person or group that owns 50% or more of the voting power prior to such acquisition of additional securities shall not be a Change in Control; (ii) during any 12-month period, individuals who on at the date beginning of this Agreement are members such period constitute the Board and any new directors whose election by the Board or nomination for election by the Company’s shareholders was approved by at least a majority of the Board (directors then still in office who either were directors at the “Incumbent Board”) beginning of the period or whose election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or thereof; (iii) the stockholders shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation (x) which would result in all or a portion of the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80more than 50% of the total combined voting power represented by of the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, consolidation or (y) by which the stockholders corporate existence of the Company is not affected and following which the Company’s chief executive officer and directors retain their positions with the Company (and constitute at least a majority of the Board) and such merger or consolidation is consummated; or (iv) the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsassets and such sale or disposition is consummated.

Appears in 4 contracts

Samples: Control Agreement (Patterson Companies, Inc.), Control Agreement (Patterson Companies, Inc.), Control Agreement (Patterson Companies, Inc.)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed mean the occurrence of any of the following events subsequent to have occurred if the date of this Agreement: (i) the acquisition of control of the Company or the Bank as defined in the rules and regulations of the applicable banking regulators on the date hereof (provided that in applying the definition of Change in Control as set forth under the rules and regulations of the applicable banking regulators, the Board of Directors of the Bank shall substitute its judgment for that of the applicable banking regulators); (ii) an event that would be required to be reported in response to Item 5.01(a) of the Current Report on Form 8-K pursuant to Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), or any successor thereto, whether or not any class of securities of the Company is registered under the Exchange Act; (iii) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act), after the date hereof, other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock any Affiliate of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 2025% or more of the total combined voting power represented by of the Company’s then outstanding Voting Securitiessecurities; (iv) the sale or other disposition of all or substantially all of the assets of the Company or the transfer by the Company of greater than 25% of the voting securities of the Company; or (v) during any period of three consecutive years, (ii) individuals who on at the date beginning of this Agreement are members such period constitute the Board of Directors of the Board (the “Incumbent Board”) Company cease for any reason to constitute at least a majority thereof, unless the election, or the nomination for election by stockholders, of each new director was approved by a vote of at least two-thirds of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board directors then still in office, such new member shall be considered as a member office who were directors at the beginning of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsperiod.

Appears in 3 contracts

Samples: Employment Agreement (Pacific Premier Bancorp Inc), Employment Agreement (Pacific Premier Bancorp Inc), Employment Agreement (Pacific Premier Bancorp Inc)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, ; (ii) individuals who on the date of this Agreement are members of the Company’s board of directors (the “Board (of Directors” and altogether, the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board of Directors (provided, however, that if the appointment or election (or nomination for election) of any new Board board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), ; or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets.

Appears in 3 contracts

Samples: Indemnity Agreement (Turnstone Biologics Corp.), Indemnity Agreement (RayzeBio, Inc.), Indemnity Agreement (RayzeBio, Inc.)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if means the consummation of any of the following transactions: (i) a sale, transfer or disposition of all or substantially all of the Company’s assets other than to (A) a corporation or other entity of which at least a majority of its combined voting power is owned directly or indirectly by the Company, (B) a corporation or other entity owned directly or indirectly by the holders of capital stock of the Company in substantially the same proportions as their ownership of Common Stock, or (C) an Excluded Entity (as defined in subsection (ii) below); or (ii) any merger, consolidation or other business combination transaction of the Company with or into another corporation, entity or person, other than a transaction with or into another corporation, entity or person in which the holders of at least a majority of the shares of voting capital stock of the Company outstanding immediately prior to such transaction continue to hold (either by such shares remaining outstanding in the continuing entity or by their being converted into shares of voting capital stock of the surviving entity) a majority of the total voting power represented by the shares of voting capital stock of the Company (or the surviving entity) outstanding immediately after such transaction (an “Excluded Entity”); or (iii) an acquisition of any voting securities of the Company by any “person” (as such the term “person” is used in Sections for purposes of Section 13(d) and or Section 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange 1934 Act”), other than a trustee ) immediately after which such person has “beneficial ownership” (within the meaning of Rule 13d-3 promulgated under the 0000 Xxx) of fifty percent (50%) or other fiduciary holding securities under an employee benefit plan more of the Company or a corporation owned directly or indirectly by the stockholders combined voting power of the Company Company’s then outstanding voting securities. Notwithstanding the foregoing, a transaction shall not constitute a “Change in Control” if its sole purpose is to change the state of the Company’s incorporation, or to create a holding company that will be owned in substantially the same proportions as their ownership of stock of by the persons who hold the Company’s securities immediately before such transaction. Further notwithstanding the foregoing, is or becomes the a beneficial ownerChange in Control(must also constitute a “change in control event,” as defined in Rule 13d-3 under the Exchange ActTreasury Regulation §1.409A-3(i)(5), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets.

Appears in 3 contracts

Samples: Change in Control and Severance Agreement (Micrel Inc), Change in Control and Severance Agreement (Micrel Inc), Change in Control and Severance Agreement (Micrel Inc)

Change in Control. For purposes of this Agreement, a “Change in Control” means a change in control of the Company occurring after December 1, 2008, of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar item on any similar schedule or form) promulgated under the Securities Exchange Act of 1934 (the “Act”), whether or not the Company is then subject to such reporting requirement; provided, however, that, without limitation, such a Change in Control shall be deemed to have occurred if after December 1, 2008, (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), ) other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, Company is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 2015% or more of the total combined voting power represented by of the Company’s then outstanding Voting Securities, securities without the prior approval of at least two-thirds of the members of the board of directors of the Company in office immediately prior to such person attaining such percentage interest; (ii) individuals who on there occurs a proxy contest, or the date Company is a party to a merger, consolidation, sale of this Agreement are assets, plan of liquidation or other reorganization not approved by at least two-thirds of the members of the Board board of directors of the Company then in office, as a consequence of which members of the board of directors in office immediately prior to such transaction or event constitute less than a majority of the board of directors thereafter; or (iii) during any period of two consecutive years, other than as a result of an event described in clause (ii) of this subsection (c), individuals who at the “Incumbent Board”beginning of such period constituted the board of directors of the Company (including for this purpose any new director whose election or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of such period) cease for any reason to constitute at least a majority of the members board of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsdirectors.

Appears in 3 contracts

Samples: Indemnity Agreement (NXT-Id, Inc.), Indemnity Agreement (xG TECHNOLOGY, INC.), Indemnity Agreement (NXT-Id, Inc.)

Change in Control. For purposes of this Agreement, a (a) A “Change in Control” shall be deemed to have occurred if (i1) any “personPerson” (as such term is used in Sections Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company), is or becomes the “beneficial owner” (as defined in determined pursuant to Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Corporation that are entitled to vote generally in the election of directors of the Company (“Voting Securities”) representing 20% thirty percent (30%) or more of the total combined voting power represented by of the CompanyCorporation’s then outstanding Voting Securities; or (2) during any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), (ii) individuals who on at the date beginning of this Agreement are such period constitute the members of the Board (the “Incumbent BoardDirectors”) and any new director, whose election to the Board or nomination for election to the Board by the Corporation’s stockholders was approved by a vote of at least two-thirds (2/3) of the Incumbent Directors or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), ; or (iii3) the stockholders of the Company approve a merger Corporation shall merge with or consolidation of the Company with consolidate into any other corporation, other than a merger or consolidation which would result in the Voting Securities holders of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company Corporation outstanding immediately prior thereto holding immediately thereafter securities representing at least seventy-five percent (75%) of the combined voting power of the Voting Securities of the Corporation or such surviving entity outstanding immediately after such merger or consolidation, ; except that a merger or consolidation effected to implement recapitalization of the Corporation (or similar transaction) in which no Person (other than Corporation or an employee benefit plan sponsored by the Corporation) acquires more than thirty percent (30%) of the combined voting power of the Corporation’s then outstanding Voting Securities shall not constitute a Change in Control; or (4) the stockholders of the Company Corporation approve a plan of complete liquidation of the Company Corporation or such a plan is commenced; or (5) the Corporation enters into or the stockholders of the Corporation approve an agreement for the sale or and disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the CompanyCorporation or of all or substantially all of the Corporation’s assets.

Appears in 3 contracts

Samples: Employment Agreement (Factory Card Outlet Corp), Employment Agreement (Factory Card Outlet Corp), Employment Agreement (Factory Card Outlet Corp)

Change in Control. For purposes of this Agreement, a A “Change in Control” shall occur or be deemed to have occurred only if any of the following events occur (i) any “person” (”, as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (other than a the Company, any trustee or other fiduciary holding securities under an employee benefit plan of the Company Company, or a any corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions proportion as their ownership of stock of the Company, or the Xxxx X. Xxxx Trust or the Trustees of the Xxxx X. Xxxx Trust) is or becomes the “beneficial owner” (as defined in Rule Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the total combined voting power represented by of the Company’s then outstanding Voting Securities, securities (other than as a result of acquisitions of such securities from the Company); (ii) individuals who on who, as of the date of this Agreement are members of hereof, constitute the Board (as of the date hereof the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of Board; provided that any person becoming a director subsequent to the Board (provideddate hereof whose election, however, that if the appointment or election (or nomination for election) of any new Board member election by the Company’s shareholders was approved or recommended by a majority vote of at least a majority of the members of directors then comprising the Incumbent Board then still (other than an election or nomination of an individual whose initial assumption of office is in officeconnection with an actual or threatened election contest as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act relating to the election of the Directors of the Company) shall be, such new member shall be for purposes of this Agreement, considered as though such person were a member of the Incumbent Board), or ; (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80more than 50% of the total combined voting power represented by of the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, consolidation or (B) a merger or consolidation effected to implement a re-capitalization of the Company (or similar transaction) in which no “person” (as hereinabove defined) acquires more than 20% of the combined voting power of the Company’s then outstanding securities; or (iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets.

Appears in 3 contracts

Samples: Employee Retention Agreement (Hooper Holmes Inc), Employee Retention Agreement (Hooper Holmes Inc), Employee Retention Agreement (Hooper Holmes Inc)

Change in Control. (i) No benefits shall be payable hereunder unless there shall have been a Change in Control of the Company, as set forth below. For purposes of this Agreement, a "Change in Control" of the Company shall mean a change in control of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), whether or not the Company is then subject to such reporting requirement; provided that, without limitation, such a Change in Control shall be deemed to have occurred if (iA) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, ) is or becomes the "beneficial owner" (as defined in Rule 13d-3 determined for purpose of Regulation 13D-G under the Exchange ActAct as currently in effect), directly or indirectly, of securities of the Company representing 2015% or more of the total combined voting power represented of the Company's then outstanding securities; or (B) during any period of two consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board and any new director, whose election to the Board or nomination for election to the Board by the Company’s then outstanding Voting Securities, 's stockholders was approved by a vote of at least two-thirds (ii2/3) individuals who on the date of this Agreement are members of the Board (directors then still in office who either were directors at the “Incumbent Board”) 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 members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), ; or (iiiC) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities holders of the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least holding immediately thereafter securities representing more than 80% of the total combined voting power represented by of the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, ; or (D) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s 's assets.

Appears in 3 contracts

Samples: Minerals Technologies Inc, Minerals Technologies Inc, Minerals Technologies Inc

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if means the occurrence of any of the following events: (i) any “personPerson” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or ) becomes the “beneficial owner” (as defined in Rule 13d-3 under of the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more than fifty percent (50%) of the total voting power represented by the Company’s then then-outstanding Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (voting securities; provided, however, that if for purposes of this subclause (i) the appointment or election acquisition of additional securities by any one Person who is considered to own more than fifty percent (or nomination for election50%) of any new Board member was approved or recommended by a majority vote the total voting power of the members securities of the Incumbent Board then still in office, such new member shall Company will not be considered as a member Change in Control; (ii) the consummation of the Incumbent Board), sale or disposition by the Company of all or substantially all of the Company’s assets; or (iii) the stockholders consummation of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entityentity or its parent) at least 80% fifty percent (50%) of the total voting power represented by the Voting Securities voting securities of the Company or such surviving entity or its parent outstanding immediately after such merger or consolidation. For purposes of this definition, Persons will be considered to be acting as a group if they are direct or indirect owners of a corporation or other entity that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction with the stockholders Company. Notwithstanding the foregoing, to the extent that any amount constituting deferred compensation (as defined in Section 409A of the Company approve Code) would become payable under this Agreement solely by reason of a plan of complete liquidation Change in Control, such amount shall become payable only if the event constituting a Change in Control would also qualify as a change in ownership or effective control of the Company or an agreement for a change in the sale or disposition by ownership of a substantial portion of the Company of (in one transaction or a series of transactions) all or substantially all assets of the Company’s assets, each as defined within the meaning of Section 409A of the Code, as it has been and may be amended from time to time, and any proposed or final Treasury Regulations and IRS guidance that has been promulgated or may be promulgated thereunder from time to time.

Appears in 3 contracts

Samples: Transition Agreement (Shutterfly Inc), Transition Agreement, Shutterfly Inc

Change in Control. For purposes of this Agreement, a “the term "Change in Control" shall be deemed to have occurred if mean (i) any "person” (" as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended 1934 (the “Exchange "Act”), ") (other than a the Company, any trustee or other fiduciary holding securities under an any employee benefit plan of the Company Company, or a corporation owned any company owned, directly or indirectly indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of common stock of the Company), is or becomes becoming the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% twenty-five percent (25%) or more of the total combined voting power represented of the Company's then outstanding securities; (ii) during any period of two (2) consecutive years, individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii), or (iv) of this paragraph or a director whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 promulgated under the Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than a member of the Board) whose election by the Board or nomination for election by the Company’s then outstanding Voting Securities, (ii) individuals who on the date 's shareholders was approved by a vote of this Agreement are members at least two-thirds of the Board directors then still in office who either were directors at the beginning of the two (the “Incumbent Board”2) year period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or ; (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80% more than fifty percent (50%) of the total combined voting power represented by of the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; provided, however, that a merger or the stockholders consolidation effected to implement a recapitalization of the Company approve (or similar transaction) in which no person (other than those covered in the exceptions in (i) above) acquires more than twenty- five percent (25%) of the combined voting power of the Company's then outstanding securities shall not constitute a Change in Control; or (iv) approval by the shareholders of the Company of a plan of complete liquidation of the Company or an agreement for the closing of the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets's assets other than the sale of all or substantially all of the assets of the Company to a person or persons who beneficially own, directly or indirectly, at least fifty percent (50%) or more of the combined voting power of the outstanding voting securities of the Company at the time of the sale.

Appears in 3 contracts

Samples: Employment Agreement (Fog Cutter Capital Group Inc), Employment Agreement (Fog Cutter Capital Group Inc), Employment Agreement (Fog Cutter Capital Group Inc)

Change in Control. For purposes of this Agreement, a “Change in Control” shall mean, and shall be deemed to have occurred if if, on or after the date of this Agreement: (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)amended) or group acting in concert, other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company acting in such capacity or a corporation owned directly or indirectly by the stockholders shareholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange said Act), directly or indirectly, of securities of the Company representing 20% or more than fifty percent (50%) of the total voting power represented by the Company’s then outstanding Voting Securities, voting securities; (ii) during any period of two (2) consecutive years, individuals who on at the date beginning of this Agreement are members such period constitute the Board and any new director whose election by the Board or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds (2/3) of the Board (directors then still in office who either were directors at the “Incumbent Board”) 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 members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or thereof; (iii) the stockholders shareholders of the Company approve a merger or consolidation of the Company with any other corporation, corporation other than a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least eighty percent (80% %) of the total voting power represented by the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, ; or (iv) the stockholders shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of related transactions) all or substantially all of the Company’s assets.. ​

Appears in 3 contracts

Samples: Indemnification Agreement (Merit Medical Systems Inc), Indemnification Agreement (Merit Medical Systems Inc), Indemnification Agreement (Merit Medical Systems Inc)

Change in Control. For purposes of this Agreement, a “the term "Change in Control" shall be deemed to have occurred if mean the occurrence of any of the following (i) any "person” (" as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended 1934 (the “Exchange "Act”), ") (other than a the Company, any trustee or other fiduciary holding securities under an any employee benefit plan of the Company Company, or a corporation owned any company owned, directly or indirectly indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock Common Stock of the Company), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% twenty-five percent (25%) or more of the total combined voting power represented of the Company's then outstanding securities; (ii) during any period of two (2) consecutive years, individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii), or (iv) of this paragraph) whose election by the Board or nomination for election by the Company’s then outstanding Voting Securities, (ii) individuals who on the date 's stockholders was approved by a vote of this Agreement are members at least two-thirds of the Board (directors then still in office who either were directors at the “Incumbent Board”) beginning of the two-year period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or ; (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80% more than fifty percent (50%) of the total combined voting power represented by of the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; provided, however, that a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no person acquires more than twenty-five percent (25%) of the combined voting power of the Company's then outstanding securities shall not constitute a Change in Control of the Company; or (iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the consummation of the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets's assets other than (x) the sale or disposition of all or substantially all of the assets of the Company to a person or persons who beneficially own, directly or indirectly, at least fifty percent (50%) or more of the combined voting power of the outstanding voting securities of the Company at the time of the sale or (y) pursuant to a spinoff type transaction, directly or indirectly, of such assets to the stockholders of the Company.

Appears in 3 contracts

Samples: Employment Agreement (Us Industries Inc /De), Employment Agreement (Us Industries Inc /De), Employment Agreement (Us Industries Inc /De)

Change in Control. Notwithstanding any other provision of this Agreement, should a Change of Control (as defined below) occur, Employee, at his sole option and discretion, may terminate his employment under this Agreement at any time within one year after such change of control upon 15 days notice. In the event of such termination, Company shall pay to Employee a severance payment equal to three times the base amount as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended ("Code") minus $1.00 which shall be payable no later than one month after the effective date of the Employee's termination of employment. In addition, in the event of a Change of Control, all outstanding stock options held by Employee (whether issued under Company's 1996 Stock Option Plan, Company's 1999 Flexible Stock Plan, or otherwise) shall become fully exercisable (to the extent not already exercisable). For purposes of this Agreement, a Change in Control” Control shall be deemed to have occurred occur (a) if (i) any person” (, as such term is used in Sections 13(d) and 14(d14(d)(2) of the Securities Exchange Act of 1934, as amended 1934 (the “"Exchange Act"), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the total combined voting power represented by the (i) of Company’s 's then outstanding Voting Securities, securities or (ii) on a fully diluted basis, (b) upon the first purchase of the common stock of Company pursuant to a tender or exchange offer (other than a tender or exchange offer made by Company), (c) upon the approval by Company's stockholders of a merger or consolidation, a sale or disposition of all or substantially all of Company's assets or a plan of liquidation or dissolution of Company, or (d) if, during any period of 2 consecutive years, individuals who on at the date beginning of this Agreement are members such period constitute the board of the Board (the “Incumbent Board”) directors of Company cease for any reason to constitute at least a majority of thereof, unless the members of the Board (provided, however, that if the appointment or election (or nomination for election) the election by Company's stockholders of any each new Board member director was approved or recommended by a majority vote of the members at least 2/3 of the Incumbent Board directors then still in office, such new member shall be considered as a member office who were directors at the beginning of the Incumbent Board)period. Notwithstanding the foregoing, a Change in Control shall not be deemed to occur if Company either merges or (iii) consolidates with or into another company or sells or disposes of all or substantially all of its assets to another company, if such merger, consolidation, sale or disposition is in connection with a corporate restructuring wherein the stockholders of the Company approve a merger immediately before such merger, consolidation, sale or consolidation of the Company with any other corporationdisposition own, other than a merger directly or consolidation which would result in the Voting Securities of the Company outstanding indirectly, immediately prior thereto continuing to represent (either by remaining outstanding following such merger, consolidation, sale or by being converted into Voting Securities of the surviving entity) disposition at least 80% of the total combined voting power represented by the Voting Securities of all outstanding classes of securities of the Company or such surviving entity outstanding immediately after company resulting from such merger or consolidation, or to which Company sells or disposes of its assets, in substantially the stockholders of the same proportion as their ownership in Company approve a plan of complete liquidation of the Company or an agreement for the immediately before such merger, consolidation, sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsdisposition.

Appears in 3 contracts

Samples: Employment Agreement (Applied Digital Solutions Inc), Employment Agreement (Applied Digital Solutions Inc), Employment Agreement (Applied Digital Solutions Inc)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if means the consummation of any of the following transactions: (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, amended) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange said Act), directly or indirectly, of securities of the Company representing 2050% or more of the total voting power represented by the Company’s then outstanding Voting Securities, voting securities; or (ii) individuals who on a change in the date of this Agreement are members composition of the Board (the “Incumbent Board”) cease for any reason to constitute at least occurring within a two-year period, as a result of which fewer than a majority of the members of the Board directors are Incumbent Directors (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Boarddefined below), ; or (iii) the stockholders date of the Company approve consummation of a merger or consolidation of the Company with any other corporationcorporation that has been approved by the shareholders of the Company, other than a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80more than 50% of the total voting power represented by the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders shareholders of the Company approve a plan of complete liquidation of the Company Company; or an agreement for (iv) the date of the consummation of the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets. Notwithstanding the foregoing, a transaction shall not constitute a “Change in Control” unless it also constitutes a “change in control event,” as defined in Treasury Regulation §1.409A-3(i)(5). “Incumbent Directors” will mean directors who either (A) are directors of the Company as of the date of this Agreement, or (B) are elected, or nominated for election, to the Board with the affirmative votes of at least a majority of the Incumbent Directors at the time of such election or nomination (but will not include an individual whose election or nomination is in connection with an actual or threatened proxy contest relating to the election of directors to the Company).

Appears in 3 contracts

Samples: Employment Agreement (Ellie Mae Inc), Employment Agreement (Ellie Mae Inc), Change in Control Severance Agreement (Ellie Mae Inc)

Change in Control. For purposes of this Agreement, a “A Change in Control” Control of the Company shall be deemed to have occurred if (i) any “personPerson(as such term is used in Sections Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), ) (other than a the Company, any trustee or other fiduciary holding securities under an employee employer benefit plan of the Company Company, or a any corporation owned owned, directly or indirectly indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company), is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20more than 50% or more of the total combined voting power represented by of the Company’s then outstanding Voting Securitiessecurities, (ii) during any 12-month period (not including any period prior to the execution of this Agreement), individuals who on are the date beginning of such period constituted the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in subclauses (i), (iii) or (iv) of this Agreement are paragraph) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least 66 2/3% of the members of the Board (then still in office who either were directors at the “Incumbent Board”) 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 members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or thereof (iii) the Company’s stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the Company or such surviving entity) at least 80more than 50% of the total combined voting power represented by of the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidationconsolidation or (B) a merger or consolidation effected to implemented a recapitalization of the Company (or similar transaction) in which no “person” (as defined above) acquires more than 50% of the combined voting power of the Company’s then outstanding securities, or (iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets.

Appears in 3 contracts

Samples: Employment Agreement (Anadigics Inc), Employment Agreement (Anadigics Inc), Anadigics Inc

Change in Control. For purposes of this Agreement, a “A Change in Control” Control shall be deemed to have occurred if mean any of the following: (i) (A) the making of a tender or exchange offer by any “person” person or entity or group of associated persons or entities (as such term is used in Sections 13(dwithin the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934, as amended ) (the “Exchange Act”), a "Person") (other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders its Affiliates) for shares of Common Stock pursuant to which purchases are made of securities representing at least twenty percent (20%) of the Company in substantially the same proportions as their ownership of stock total combined voting power of the Company, is or becomes the “beneficial owner” 's then issued and outstanding voting securities; (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iiiB) the stockholders of the Company approve a merger or consolidation of the Company with with, or the sale or disposition of all or substantially all of the assets of the Company to, any other corporation, Person other than (a) a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving or parent entity) at least 80% fifty percent (50%) or more of the total combined voting power represented by of the Voting Securities voting securities of the Company or such surviving or parent entity outstanding immediately after such merger or consolidation, ; or the stockholders (b) a merger or capitalization effected to implement a recapitalization of the Company approve a (or similar transaction) in which no Person is or becomes the beneficial owner, directly or indirectly (as determined under Rule 13d-3 promulgated under the Securities Exchange Act of 1934), of securities representing more than the amounts set forth in (C) below; (C) the acquisition of direct or indirect beneficial ownership (as determined under Rule 13d-3 promulgated under the Securities Exchange Act of 1934), in the aggregate, of securities of the Company representing twenty percent (20%) or more of the total combined voting power of the Company's then issued and outstanding voting securities by any Person acting in concert as of the date of this Agreement; provided, however, that the Board of Directors of the Company (referred to herein as the "Board") may at any time and from time to time and in the sole discretion of the Board, as the case may be, increase the voting security ownership percentage threshold of this item (C) to an amount not exceeding forty percent (40%); or (D) the approval by the shareholders of the Company of any plan of or proposal for the complete liquidation or dissolution of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the assets of the Company’s assets; or (ii) during any period of not more than two (2) consecutive years, individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into agreement with the Company to effect a transaction described in clause (i)) whose election by the Board or nomination for election by the Company's shareholders 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 thereof.

Appears in 3 contracts

Samples: Restricted Stock Award Agreement (Foot Locker Inc), Restricted Stock Award Agreement (Foot Locker Inc), Restricted Stock Award Agreement (Venator Group Inc)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if of the Company means the occurrence of any of the following events: (i) any “person” merger, consolidation or other reorganization whereby the Company’s equity holders existing immediately prior to such merger, consolidation or reorganization do not, immediately after consummation of such merger, consolidation or reorganization, beneficially own (as such term is used in Sections 13(dwithin the meaning of Rule 13(d)(3) and 14(d) of promulgated under the Securities Exchange Act of 19341934 (as amended, as amended (the “Exchange Act”)) more than 50% of the combined voting power of the surviving entity’s then outstanding voting securities; (ii) the Bank is merged or consolidated into, or otherwise acquired by, an entity other than a trustee or other fiduciary holding securities under an employee benefit plan wholly-owned subsidiary of the Company or a corporation owned directly or indirectly by the stockholders of Company; (iii) the Company sells, leases or exchanges all or substantially all of its assets to any other person or entity in substantially which the same proportions as their ownership of stock Company, any subsidiary of the Company, or the Company’s equity holders existing immediately prior to such sale, lease or exchange beneficially own less than 50% of the combined voting power of such acquiring entity’s then outstanding voting securities; (iv) the Company is dissolved and liquidated; (v) any person or becomes the entity, including a beneficial ownergroup(as defined in Rule 13d-3 under contemplated by Section 13(d)(3) of the Exchange Act), directly acquires or indirectly, gains beneficial ownership of securities more than 50% of the Company representing 20% or more of the total combined voting power represented by of the Company’s then outstanding Voting Securities, voting securities; or (iivi) individuals who on any change in the date identity of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least directors constituting a majority of the members of Board within a twenty-four month period unless the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member change was approved or recommended by a majority vote of the members of the Incumbent Board then still in officeDirectors, such new member shall be considered as where “Incumbent Director” means a member of the Incumbent Board)Board at the beginning of the period in question, including any director who was not a member of the Board at the beginning of such period but was elected or nominated to the Board by, or (iii) on the stockholders recommendation of or with the approval of, at least two-thirds of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsdirectors who then qualified as Incumbent Directors.

Appears in 3 contracts

Samples: Executive Employment Agreement (Spirit of Texas Bancshares, Inc.), Executive Employment Agreement (Spirit of Texas Bancshares, Inc.), Executive Employment Agreement (Spirit of Texas Bancshares, Inc.)

Change in Control. For purposes of this Agreement, a “A "Change in Control" shall be deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (not including any securities acquired directly from the Company) representing 20more than 30% or more of the total combined voting power represented by of the Company’s 's then outstanding Voting Securities, securities; (ii) during any period of two (2) consecutive years during the term of this Agreement, individuals who on at the date beginning of this Agreement are members of such period constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority thereof, unless the election of each director who was not a director at the beginning of such period has been approved in advance by directors representing at least two-thirds of the members directors then in office who were directors at the beginning of the Board (providedperiod, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (x) a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 8066 2/3% of the total combined voting power represented by of the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (y) a merger or consolidation effected to implement a recapitalization of the stockholders Company in which no person acquires more than 30% of the combined voting power of the Company and outstanding securities; (iv) the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company's assets; or (v) the Company's insolvency, general assignment for the benefit of creditors, or the commencement by or against the Company of any case, proceeding, or other action seeking reorganization, arrangement, adjustment, liquidation, dissolution, or composition of the Company’s 's debts under any law relating to bankruptcy, insolvency, or reorganization, or relief of debtors, or seeking appointment of a receiver, trustee, custodian, or other similar official for the Company or for all or any substantial part of the Company's assets. Notwithstanding anything in the foregoing to the contrary, no Change in Control of the Company shall be deemed to have occurred for purposes of this Agreement by virtue of any transaction which results in the Executive, or a group of persons which includes the Executive, acquiring, directly or indirectly, more than 25% of the combined voting power of the Company's then outstanding securities.

Appears in 3 contracts

Samples: Severance Agreement (Versatility Inc), Severance Agreement (Versatility Inc), Severance Agreement (Versatility Inc)

Change in Control. No benefits shall be payable hereunder unless there shall have been a change in control of the Company, as set forth below. For purposes of this Agreementagreement, a “Change "change in Control” control of the Company" shall mean and be deemed to have occurred if on (i) any “person” (as such term the date upon which the Company is used in Sections provided a copy of a Schedule 13D, filed pursuant to Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended 1934 (the “Exchange "1934 Act"), other than indicating that a trustee group or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Companyperson, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange 1934 Act), directly or indirectly, has become the beneficial owner of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, Shares of the Company or the date upon which the Company first learns that a person or group has become the beneficial owner of 20% or more of the outstanding Voting Shares of the Company if a Schedule 13D is not filed; (ii) individuals who on the date of this Agreement are a change in the composition of the Board of Directors of the Company such that individuals who were members of the Board of Directors on the date two years prior to such change (or who were subsequently elected to fill a vacancy in the “Incumbent Board”) cease , or were subsequently nominated for any reason to constitute election by the Company's shareholders, by the affirmative vote of at least two-thirds of the directors then still in office who were directors at the beginning of such two year period) no longer constitute a majority of the members Board of Directors of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or Company; (iii) the stockholders date the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the holders of the Voting Securities Shares of the Company outstanding immediately prior thereto to the merger or consolidation continuing to represent (either by remaining outstanding own immediately after the merger or by being converted into Voting Securities consolidation 80% or more of the surviving entity) at least 80% of the total voting power represented by the Voting Securities Shares of the Company or such the surviving entity, if the Company is not the surviving entity outstanding immediately after such in the merger or consolidation, ; or (iv) the stockholders date shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company's assets. "Voting Shares" means any securities of the Company’s assetsCompany which vote generally in the election of directors.

Appears in 2 contracts

Samples: Change of Control Agreement (Amcast Industrial Corp), Change of Control Agreement (Amcast Industrial Corp)

Change in Control. Immediately upon the occurrence of a “Change in Control,” the Employee shall become fully vested in all employee benefit programs (other than any tax qualified retirement or savings plan, the Employee’s interest in which shall vest in accordance with such plan’s terms), including without limitation, all stock options or other awards under the 1996 or 2004 Stock Plans, in which he was a participant at the time of the Change in Control. For purposes of this Agreement, a the term “Change in Control” shall be deemed to have occurred if mean the occurrence of any of the following events after the date of this Agreement (i) the acquisition by any “person” individual, entity or group (as such term is used in Sections 13(dwithin the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than ) (a trustee or other fiduciary holding securities under an employee benefit plan “Person”) of beneficial ownership (within the Company or a corporation owned directly or indirectly by the stockholders meaning of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 promulgated under the Exchange Act), directly ) of fifty percent (50%) or indirectly, more of the combined voting power of the then outstanding voting securities of the Company representing 20% or more entitled to vote generally in the election of the total voting power represented by the Company’s then outstanding directors (“Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board) cease for any reason to constitute at least a majority of the members of the Board (); provided, however, that if the appointment or election following acquisitions shall not constitute a Change in Control: (A) any acquisition by the Company, (B) any acquisition by any employee benefit plan (or nomination for electionrelated trust) sponsored or maintained by the Company or any corporation controlled by the Company or (C) any acquisition by the Employee (or a group including the Employee); (ii) the consummation of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in officereorganization, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a reorganization, merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% fifty percent (50%) of the total combined voting power represented by of the Voting Securities of the Company or such surviving entity outstanding immediately after such reorganization, merger or consolidation, ; or (iii) the stockholders consummation of the Company approve a plan of complete liquidation of the Company or of an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) of all or substantially all of the Company’s assets.

Appears in 2 contracts

Samples: Employment Agreement (Airnet Systems Inc), Employment Agreement (Airnet Systems Inc)

Change in Control. For purposes of this Agreement, a “A Change in Control” Control shall be deemed to have occurred if mean any of the following: (i) (A) the making of a tender or exchange offer by any “person” person or entity or group of associated persons or entities (as such term is used in Sections 13(dwithin the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934, as amended 1934 (the a Exchange ActPerson), ) (other than a trustee the Company or other fiduciary holding securities under an employee benefit plan its Affiliates) for shares of common stock of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, pursuant to which purchases are made of securities of the Company representing at least twenty percent (20% or more %) of the total combined voting power represented by of the Company’s then issued and outstanding Voting Securities, voting securities; (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iiiB) the stockholders of the Company approve a merger or consolidation of the Company with with, or the sale or disposition of all or substantially all of the assets of the Company to, any other corporation, Person other than (a) a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving or parent entity) at least 80% fifty percent (50%) or more of the total combined voting power represented by of the Voting Securities voting securities of the Company or such surviving or parent entity outstanding immediately after such merger or consolidation, ; or the stockholders (b) a merger or capitalization effected to implement a recapitalization of the Company approve a (or similar transaction) in which no Person is or becomes the beneficial owner, directly or indirectly (as determined under Rule 13d-3 promulgated under the Securities Exchange Act of 1934), of securities representing more than the amounts set forth in (C) below; (C) the acquisition of direct or indirect beneficial ownership (as determined under Rule 13d-3 promulgated under the Securities Exchange Act of 1934), in the aggregate, of securities of the Company representing twenty percent (20%) or more of the total combined voting power of the Company’s then issued and outstanding voting securities by any Person acting in concert as of the date of this Agreement; provided, however, that the Board may at any time and from time to time and in the sole discretion of the Board, as the case may be, increase the voting security ownership percentage threshold of this item (C) to an amount not exceeding forty percent (40%); or (D) the approval by the shareholders of the Company of any plan of or proposal for the complete liquidation or dissolution of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the assets of the Company; or (ii) during any period of not more than two (2) consecutive years, individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into agreement with the Company to effect a transaction described in clause (i)) whose election by the Board or nomination for election by the Company’s assetsstockholders was approved by a vote of at least two-thirds (?) 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 thereof.

Appears in 2 contracts

Samples: Nonstatutory Stock Option Award Agreement (Foot Locker Inc), Incentive Stock Option Award Agreement (Foot Locker Inc)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if means (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934a sale, as amended (the “Exchange Act”)lease, other than a trustee exchange or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (transfer in one transaction or a series of transactions) related transactions of all or substantially all of the Company’s assets, or (ii) a merger or consolidation of the Company with or into any other corporation or other entity or person or any other transaction or a series of related transactions, including the sale by the Company of new shares of its capital stock or a transfer of existing shares of capital stock of the Company, the result of which is that a third party that is not an affiliate of the Company or its stockholders (or a group of third parties not affiliated with the Company or its stockholders) immediately prior to such transaction acquires or holds capital stock of the Company representing a majority of the Company’s outstanding voting power immediately following such transaction; provided that the following events shall not constitute a “Change in Control”: (A) a transaction (other than a sale of all or substantially all of the Company’s assets) in which the holders of the voting securities of the Company immediately prior to the merger, consolidation or other transaction hold, directly or indirectly, at least a majority of the voting securities in the successor corporation or its parent immediately after the merger, consolidation or other transaction; (B) a sale, lease, exchange or other transaction in one transaction or a series of related transactions of all or substantially all of the Company’s assets to an affiliate of the Company; (C) an initial public offering of any of the Company’s securities; (D) a reincorporation of the Company solely to change its jurisdiction; (E) a transaction undertaken for the primary purpose of creating a holding company that will be owned in substantially the same proportion by the persons who held the Company’s securities immediately before such transaction; or (F) any transaction or series of transactions principally for bona fide equity financing purposes in which cash is received by the Company or any successor or indebtedness of the Company is cancelled or converted or a combination thereof. Notwithstanding the foregoing, if a Change in Control would give rise to a payment or settlement event with respect to any amount that constitutes “nonqualified deferred compensation,” the transaction or event constituting the Change in Control must also constitute a “change in control event” (as defined in Treasury Regulation §1.409A-3(i)(5)) in order to give rise to the payment or settlement event for such amount, to the extent required by Section 409A of the Code.

Appears in 2 contracts

Samples: Employment Agreement (Verrica Pharmaceuticals Inc.), Employment Agreement (Verrica Pharmaceuticals Inc.)

Change in Control. (a) For purposes of this Agreement, a "Change in Control" of the Company shall be deemed to have occurred if at such time as (iA) any "person" (as such the term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “"Exchange Act"), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, ) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of voting securities of the Institution or the Company representing 2025% or more of the total Institution's or the Company's outstanding voting power represented securities or right to acquire such securities except for any voting securities of the Institution purchased by the Company’s then outstanding Voting SecuritiesCompany and any voting securities purchased by any employee benefit plan of the Company or its Subsidiaries, or (iiB) individuals who constitute the Board on the date of this Agreement are members of the Board hereof (the "Incumbent Board") cease for any reason to constitute at least a majority thereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by a vote of at least three-quarters of the members of directors comprising the Board (providedIncumbent Board, however, that if the appointment or election (or whose nomination for election) of any new Board member election by the Company's stockholders was approved or recommended by a majority vote Nominating Committee solely composed of the members of the which are Incumbent Board then still in officemembers, such new member shall be be, for purposes of this clause (B), considered as though he were a member of the Incumbent Board), or (iiiC) a plan of reorganization, merger, consolidation, sale of all or substantially all the stockholders assets of the Company approve or similar transaction (a merger "Transaction") occurs or consolidation of the Company with any other corporationis effectuated, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent Transaction following which: (either by remaining outstanding or by being converted into Voting Securities of the surviving entityi) at least 80more than 50% of the total voting power represented by the Voting Securities equity ownership interests of the Company or entity resulting from such surviving entity outstanding Transaction are beneficially owned (within the meaning of Rule 13d-3 promulgated under the Exchange Act) in substantially the same relative proportions by persons who, immediately after prior to such merger or consolidationTransaction, or beneficially owned (within the stockholders meaning of Rule 13d-3 promulgated under the Exchange Act) more than 50% of the Company approve a plan of complete liquidation outstanding equity ownerships interests in the Company; and (ii) more than 50% of the Company or an agreement for securities entitled to vote generally in the sale or disposition election of directors of the entity resulting from such Transaction are beneficially owned (within the meaning of Rule 13d-3 promulgated under the Exchange Act) in substantially the same relative proportions by persons who, immediately prior to such Transaction, beneficially owned (within the Company meaning of (Rule 13d-3 promulgated under the Exchange Act) more than 50% of the securities entitled to vote generally in one transaction or a series the election of transactions) all or substantially all directors of the Company’s assets.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Tr Financial Corp), Agreement and Plan of Merger (Roslyn Bancorp Inc)

Change in Control. For purposes of this Agreement, a "Change in Control” Control of the Company" shall be deemed to have occurred if (iA) there shall be consummated (I) any consolidation or merger of the Company in which the Company is not the continuing or surviving corporation, or pursuant to which shares of the Company's Common Stock would be converted in whole or in part into cash, securities or other property, other than a merger of the Company in which the holders of the Company's Common Stock immediately prior to the merger have substantially the same proportionate ownership of common stock of the surviving corporation immediately after the merger, or (II) any sale, lease, exchange or transfer (in one transaction or a series of related transactions) of all or substantially all the assets of the Company, or (B) the shareholders of the Company shall approve any plan or proposal for the liquidation or dissolution of the Company, or (C) any "person” (" [as such term is used in Sections 13(d13(d)(3) and 14(d14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), ] other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a subsidiary thereof or any employee benefit plan sponsored by the Company or a subsidiary thereof or a corporation owned owned, directly or indirectly indirectly, by the stockholders shareholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes shall become the beneficial owner” owner (as defined in within the meaning of Rule 13d-3 under the Exchange Act), directly or indirectly, ) of securities of the Company representing 20% or more of the total combined voting power represented by of the Company’s 's then outstanding Voting Securitiessecurities ordinarily (and apart from rights accruing in special circumstances) having the right to vote in the election of directors, as a result of a tender or exchange offer, open market purchases, privately negotiated purchases or otherwise, or (iiD) at any time during a period of two consecutive years, individuals who on at the date beginning of this Agreement are members such period constituted the Board of Directors of the Board (the “Incumbent Board”) Company shall cease for any reason to constitute at least a majority thereof, unless the election or the nomination for election by the Company's shareholders of each new director during such two-year period was approved by a vote of at least two-thirds of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board directors then still in office, office who were directors at the beginning of such new member shall be considered as a member of the Incumbent Board)two-year period, or (iiiE) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger event shall occur that would be required to be reported in response to Item 6(e) (or consolidation which would result in any successor provision) of Schedule 14A of Regulation 14A promulgated under the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsExchange Act.

Appears in 2 contracts

Samples: TXCO Resources Inc, Exploration Co of Delaware Inc

Change in Control. For purposes of this Agreement, a “A Change in Control” Control shall be deemed to have occurred if mean any of the following: (i) (A) the making of a tender or exchange offer by any “person” person or entity or group of associated persons or entities (as such term is used in Sections 13(dwithin the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934, as amended 1934 (the a Exchange ActPerson), ) (other than a trustee the Company or other fiduciary holding securities under an employee benefit plan its Affiliates) for shares of common stock of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, pursuant to which purchases are made of securities of the Company representing at least twenty percent (20% or more %) of the total combined voting power represented by of the Company’s then issued and outstanding Voting Securities, voting securities; (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iiiB) the stockholders of the Company approve a merger or consolidation of the Company with with, or the sale or disposition of all or substantially all of the assets of the Company to, any other corporation, Person other than (a) a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving or parent entity) at least 80% fifty percent (50%) or more of the total combined voting power represented by of the Voting Securities voting securities of the Company or such surviving or parent entity outstanding immediately after such merger or consolidation, ; or the stockholders (b) a merger or capitalization effected to implement a recapitalization of the Company approve a (or similar transaction) in which no Person is or becomes the beneficial owner, directly or indirectly (as determined under Rule 13d-3 promulgated under the Securities Exchange Act of 1934), of securities representing more than the amounts set forth in (C) below; (C) the acquisition of direct or indirect beneficial ownership (as determined under Rule 13d-3 promulgated under the Securities Exchange Act of 1934), in the aggregate, of securities of the Company representing twenty percent (20%) or more of the total combined voting power of the Company’s then issued and outstanding voting securities by any Person acting in concert as of the date of this Agreement; provided, however, that the Board may at any time and from time to time and in the sole discretion of the Board, as the case may be, increase the voting security ownership percentage threshold of this item (C) to an amount not exceeding forty percent (40%); or (D) the approval by the shareholders of the Company of any plan of or proposal for the complete liquidation or dissolution of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the assets of the Company; or (ii) during any period of not more than two (2) consecutive years, individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into agreement with the Company to effect a transaction described in clause (i)) whose election by the Board or nomination for election by the Company’s assetsstockholders 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 thereof.

Appears in 2 contracts

Samples: Foot Locker _________ Stock Option and Award Plan Incentive Stock Option Award Agreement (Foot Locker Inc), Foot Locker              stock Option and Award Plan Nonstatutory Stock Option Award Agreement (Foot Locker Inc)

Change in Control. For purposes of this Agreement, a “A Change in Control” Control of the Company shall be deemed to have occurred if (i) any “personPerson(as such term is used in Sections Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), ) (other than a the Company, any trustee or other fiduciary holding securities under an employee benefit plan of the Company Company, or a any corporation owned owned, directly or indirectly indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company), is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20more than 50% or more of the total combined voting power represented by of the Company’s then outstanding Voting Securitiessecurities, (ii) during any 12-month period (not including any period prior to the execution of this Agreement), individuals who on at the date beginning of such period constituted the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in subclauses (i), (iii) or (iv) of this Agreement are paragraph) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least 66 2/3% of the members of the Board (then still in office who either were directors at the “Incumbent Board”) 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 members of the Board (providedthereof, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the Company’s stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80more than 50% of the total combined voting power represented by of the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidationconsolidation or (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no “person” (as defined above) acquires more than 50% of the combined voting power of the Company’s then outstanding securities, or (iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets.

Appears in 2 contracts

Samples: Anadigics Inc, Anadigics Inc

Change in Control. Upon the occurrence of a Change in Control (as hereinafter defined), the Employee shall have the right to terminate this Agreement within 30 days of the occurrence of such Change in Control. Upon the termination of this Agreement by the Employee due to the occurrence of a Change in Control, the Employee shall be entitled to receive one year of Base Compensation in one lump sum within five days of the effective date of such termination, subject to withholding for applicable taxes and other amounts, all unvested stock options held by the Employee shall immediately vest and become exercisable. For purposes of this Agreement, a “Change in Control” of the Company shall be deemed to have occurred if in the event that: (i) any “person” (individuals who, as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act date hereof, constitute the Board cease for any reason to constitute at least a majority of 1934the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Board shall be considered as amended though such individual was a member of the Board as of the date hereof; (ii) the “Exchange Act”)Company shall have been sold by either (A) a sale of all or substantially all its assets, or (B) a merger or consolidation, other than a trustee any merger or other fiduciary holding securities under an employee benefit plan of consolidation pursuant to which the Company acquires another entity, or (C) a corporation owned directly tender offer, whether solicited or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of unsolicited; or (iii) any party, other than the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange ActAct of 1934, as amended), directly or indirectly, of voting securities of the Company representing 2050% or more of the total voting power represented by of all the Company’s then then-outstanding Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all securities of the Company’s assets.

Appears in 2 contracts

Samples: Employment Agreement (Black Diamond, Inc.), Employment Agreement (Black Diamond, Inc.)

Change in Control. Immediately upon the occurrence of a "Change in Control," the Employee shall become fully vested in all employee benefit programs (other than any tax qualified retirement or savings plan, the Employee's interest in which shall vest in accordance with such plan's terms), including without limitation, all stock options or other awards under the Stock Plan, in which he was a participant at the time of the Change in Control. For purposes of this Agreement, a “the term "Change in Control" shall be deemed to have occurred if mean the occurrence of any of the following events after the date of this Agreement (i) the acquisition by any “person” individual, entity or group (as such term is used in Sections 13(dwithin the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act”), other than ") (a trustee or other fiduciary holding securities under an employee benefit plan "Person") of beneficial ownership (within the Company or a corporation owned directly or indirectly by the stockholders meaning of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 promulgated under the Exchange Act), directly ) of fifty percent (50%) or indirectly, more of the combined voting power of the then outstanding voting securities of the Company representing 20% or more entitled to vote generally in the election of the total voting power represented by the Company’s then outstanding directors ("Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board ("); provided, however, that if the appointment or election following acquisitions shall not constitute a Change in Control: (A) any acquisition by the Company, (B) any acquisition by any employee benefit plan (or nomination for electionrelated trust) sponsored or maintained by the Company or any corporation controlled by the Company or (C) any acquisition by the Employee (or a group including the Employee); (ii) the consummation of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in officereorganization, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a reorganization, merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% fifty percent (50%) of the total combined voting power represented by of the Voting Securities of the Company or such surviving entity outstanding immediately after such reorganization, merger or consolidation, ; or (iii) the stockholders consummation of the Company approve a plan of complete liquidation of the Company or of an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) of all or substantially all of the Company’s 's assets.

Appears in 2 contracts

Samples: Employment Agreement (Airnet Systems Inc), Employment Agreement (Airnet Systems Inc)

Change in Control. For purposes of this Agreement, a “A "Change in Control" shall be deemed to have occurred if (i) if: 1. any “person” ("Person," as such term is used in Sections for purposes of Section 13(d) and or 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than (A) the Company, (B) IMS Health, Inc., a Delaware corporation, or any wholly-owned subsidiary of IMS Health, Inc. (collectively, "IMS"), other than a until IMS shall cease to be the "Beneficial Owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing at least 15% of the combined voting power of the Company's then-outstanding securities, (C) any trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned IMS, or (D) any company owned, directly or indirectly indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company), is or becomes the “beneficial owner” Beneficial Owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the total combined voting power represented by of the Company’s then 's then-outstanding Voting Securitiessecurities; provided that, in the case of any Person which (i) has filed and has in effect a report of beneficial ownership on Schedule 13-G in which such Person is reported as a "passive" investor for the purpose of such Schedule 13-G, for so long as such person continues to be a passive investor thereunder in the Company, (ii) individuals who on is the date Beneficial Owner of this Agreement are members less than 15% of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority combined voting power of the members outstanding securities of the Board Company immediately prior to the Proposed Recapitalization (provided, however, that if defined below) and immediately prior to the appointment or election Proposal Spinoff (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Boarddefined below), or (iii) is the stockholders Beneficial Owner of less than 15% of the combined voting power of the outstanding securities of IMS Health, Inc. immediately prior to the Proposed Recapitalization and immediately prior to the Proposed Spinoff, and (iv) acquires more than 15% but less than [20%] of the combined voting power of the Company's then-outstanding securities solely by virtue of the Proposed Recapitalization and Proposed Spinoff, then a Change in Control shall not be deemed to occur so long as (i) such Person remains a passive investor in the Company under Schedule 13-G and (ii) such Person beneficially owns shares in the Company representing no more than the combined voting power of the outstanding securities of the Company approve a merger or consolidation of beneficially owned by such Person immediately following the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent Proposed Spinoff plus [five percent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets.5%)];

Appears in 2 contracts

Samples: Employment Agreement (Gartner Group Inc), Employment Agreement (Gartner Group Inc)

Change in Control. For purposes of this Agreement, a A “Change in Control” shall be deemed to have occurred if (i) there shall be consummated (1) any consolidation or merger of HMEC in which HMEC is not the continuing or surviving corporation, or pursuant to which shares of HMEC’s Common Stock would be converted into cash, securities or other property, other than a merger of HMEC in which no HMEC shareholder’s ownership percentage in the surviving corporation immediately after the merger is less than such shareholder’s ownership percentage in HMEC immediately prior to such merger by ten percent (10%) or more, or (2) any sale, lease exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of HMEC; (ii) the shareholders of HMEC approve any plan or proposal for the liquidation or dissolution of HMEC which is a part of a sale of assets, merger, or reorganization of HMEC or other similar transaction; (iii) any “personPerson(as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than a trustee is or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned becomes, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Companyindirectly, is or becomes the “beneficial owner,(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20HMEC that represent 51% or more of the total combined voting power represented by the Companyof HMEC’s then outstanding Voting Securities, securities; or (iiiv) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Company’s Board (provided, however, that if of Directors are persons who are then serving on the appointment or election (or nomination for election) Board of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented Directors without having been elected by the Voting Securities Board of the Company Directors or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition having been nominated by the Company for election of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsits shareholders.

Appears in 2 contracts

Samples: Severance Agreement (Horace Mann Educators Corp /De/), Form of Severance Agreement (Horace Mann Educators Corp /De/)

Change in Control. For purposes of this Agreement, a “the term "Change in Control" shall be deemed to have occurred if mean the occurrence of any of the following (i) any "person” (" as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended 1934 (the “Exchange "Act”), ") (other than a the Company, any trustee or other fiduciary holding securities under an any employee benefit plan of the Company Company, or a corporation owned any company owned, directly or indirectly indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock Common Stock of the Company), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% twenty-five percent (25%) or more of the total combined voting power represented of the Company's then outstanding securities; (ii) during any period of two (2) consecutive years, individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii), or (iv) of this paragraph) whose election by the Board or nomination for election by the Company’s then outstanding Voting Securities, (ii) individuals who on the date 's stockholders was approved by a vote of this Agreement are members at least two-thirds of the Board (directors then still in office who either were directors at the “Incumbent Board”) beginning of the two-year period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or ; (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80% more than fifty percent (50%) of the total combined voting power represented by of the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; provided, however, that a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no person acquires more than twenty-five percent (25%) of the combined voting power of the Company's then outstanding securities shall not constitute a Change in Control of the Company; or (iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets's assets other than (x) the sale or disposition of all or substantially all of the assets of the Company to a person or persons who beneficially own, directly or indirectly, at least fifty percent (50%) or more of the combined voting power of the outstanding voting securities of the Company at the time of the sale or (y) pursuant to a spinoff type transaction, directly or indirectly, of such assets to the stockholders of the Company.

Appears in 2 contracts

Samples: Employment Agreement (Us Industries Inc /De), Employment Agreement (Us Industries Inc /De)

Change in Control. For purposes of this Agreement, a “Change in Control" shall be deemed to have occurred if mean (i) the acquisition, directly or indirectly, by any “person” Person or group (as such term is used in Sections 13(d) and 14(dwithin the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than a trustee or other fiduciary holding securities under an employee benefit plan amended) of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their beneficial ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or possessing more than fifty percent (50%) of the total combined voting power represented by of all outstanding securities of the Company’s then , unless the Person or group of Persons acquiring such beneficial ownership owned more than 25% of the outstanding Voting SecuritiesCommon Stock of the Company on the date of adoption of this Plan, (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation in which the Company is not the surviving entity, except for a transaction in which holders of outstanding voting securities of the Company with any other corporation, other than a immediately prior to such merger or consolidation which would result hold, in the Voting Securities aggregate, securities possessing more than fifty percent (50%) of the Company total combined voting power of all outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or ; (iii) a reverse merger in which the stockholders Company is the surviving entity but in which securities possessing more than fifty percent (50%) of the total combined voting power of all outstanding voting securities of the Company approve are transferred to or acquired by a plan of complete liquidation of Person or Persons different from the Company persons holding those securities immediately prior to such merger; (iv) the sale, transfer or an agreement for the sale or other disposition by the Company of (in one transaction or a series of related transactions) of all or substantially all of the assets of the Company’s assets; or (v) the approval by the shareholders of a plan or proposal for the liquidation or dissolution of the Company.

Appears in 2 contracts

Samples: Collectors Universe Inc, Collectors Universe Inc

Change in Control. For purposes of this Agreement, a “Change in Control” shall mean a change in control of the Company of a nature that would be deemed required to have occurred if (i) any “person” (as such term is used be reported in Sections 13(d) and 14(dresponse to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than a trustee whether or other fiduciary holding securities under an employee benefit plan of not the Company or is then subject to such reporting requirement; provided that, without limitation, such a corporation owned directly or indirectly by the stockholders of the Company Change in substantially the same proportions as their ownership of stock of the Company, Control shall be deemed to have occurred if: (i) any person is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 2025% or more of the total combined voting power represented by of the Company’s then outstanding Voting Securities, securities; (ii) individuals who on during any period of two consecutive years (not including any period prior to the date execution of this Agreement are members Agreement), individuals, who at the beginning of such period constitute the Board and any new director added during the period whose election to the Board or nomination for election to the Board by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the Board (directors then still in office who either were directors at the “Incumbent Board”) beginning of the period or whose election or nomination for election was approved prior to the beginning of the period, cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or ; (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80more than 66 2/3% of the total combined voting power represented by of the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, ; or (iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets. For purposes hereof, “Company” includes the ultimate parent of the Company, if applicable.

Appears in 2 contracts

Samples: 2001 Equity Incentive Plan (Apogent Technologies Inc), 2001 Equity Incentive Plan (Apogent Technologies Inc)

Change in Control. For purposes of this Agreement, a “Change in Control” of the Company shall be deemed to have occurred if any of the events set forth in any one of the following subparagraphs shall occur; (iA) during any period of not more than twelve consecutive months, any “person” (as such term is used in Sections sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other than excluding the Company or any of its affiliates, a trustee or other any fiduciary holding securities under an employee benefit plan of the Company or any of its affiliates, an underwriter temporarily holding securities pursuant to an offering of such securities, or a corporation owned owned, directly or indirectly indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 13(d)(3) under the Exchange Act), directly or indirectly, of securities of the Company representing 2035% or more of the total combined voting power represented by of the Company’s then outstanding Voting Securitiessecurities; (B) during any period of not more than twelve consecutive months, individuals who at the beginning of such period constitute the Board and any new director (other than a director designated by a Person who has entered into an agreement with the Company to effect a transaction described in clause (A), (iiC) individuals who on the date or (D) of this Agreement are members subparagraph) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the Board (directors then still in office who either were directors at the “Incumbent Board”) 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 members of the Board thereof; (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iiiC) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (x) a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) ), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 8050% of the total combined voting power represented by of the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (y) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person acquires more than 50% of the combined voting power of the Company’s then outstanding securities; or (D) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets. Notwithstanding the foregoing, no Change in Control shall be deemed to have occurred if there is consummated any transaction or series of integrated transactions immediately following which, in the judgment of the Compensation Committee of the Board, the holders of the Company’s common stock immediately prior to such transaction or series of transactions continue to have the same proportionate ownership in an entity which owns all or substantially all of the assets of the Company immediately prior to such transaction or series of transactions.

Appears in 2 contracts

Samples: Employment Agreement (McKesson Corp), Employment Agreement (McKesson Corp)

Change in Control. (a) No benefit shall be payable under this Section 2 unless there shall have been a Change in Control of the Company as set forth below and unless the Executive executed a general release of all claims against the Company in a form reasonably acceptable to the Company. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company shall mean any of the following, but only to the extent that such change of control transaction is a change in the ownership or effective control of Company or a corporation owned directly or indirectly by change in the stockholders ownership of a substantial portion of the assets of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under Section 409A: (A) individuals who constitute the Exchange Act), directly or indirectly, Board of securities Directors of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board hereof (the “Incumbent Board”) cease for any reason to constitute at least a majority thereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by a vote of at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of directors comprising the Incumbent Board then still (or directors elected by the process set forth in officethis clause (A)), such new member shall be be, for purposes of this clause (A), considered as though he were a member of the Incumbent Board), ; or (iiiB) a sale of all or substantially all of the assets of the Company, (C) a plan of reorganization, merger or consolidation or similar transaction occurs in which the stockholders of the Company approve prior to such transaction do not continue to hold, as a result of shares of capital stock of the Company held by them prior to such transaction, a majority of the voting power of the capital stock of the surviving corporation or entity; (D) a proxy statement shall be distributed soliciting proxies from stockholders of the Company, by someone other than the current management of the Company, seeking stockholder approval of a plan of reorganization, merger or consolidation of the Company with any other corporation, other than one or more entities as a merger result of which the outstanding shares of the class of securities then subject to such a plan or consolidation which would result in transaction are subsequently exchanged for or converted into cash or property or securities not issued by the Voting Securities Company shall be distributed; or (E) a tender offer is completed for 50% or more of the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsthen outstanding.

Appears in 2 contracts

Samples: Change of Control and Severance Agreement (Digital River Inc /De), Change of Control and Severance Agreement (Digital River Inc /De)

Change in Control. Notwithstanding the foregoing, if, prior to any Vesting Date, and within two years after the effectiveness of a Change in Control (as defined below), the Participant is (i) terminated by the Company without Cause (as defined below) or (ii) terminates his employment for Good Reason (as defined below), then, all (or, in the case of a performance-based RSU that is still subject to performance criteria per Exhibit A, the Target Number of RSUs (as defined on Exhibit A, if applicable) of the Participant’s unforfeited RSUs shall become immediately and fully vested and shall no longer be subject to the Forfeiture provisions under this Agreement and the Shares subject to such RSUs shall be delivered to the Participant as soon as practicable (but no later than thirty (30) days) following the date of the date of termination. For purposes of this Agreement, a section “Change in Control” shall be deemed means the first to have occurred if occur of any of the following events: (iI) any “person” (as such that term is used in Sections 13(d) Section 13 and 14(d14(d)(2) of the Securities Exchange Act of 1934, as amended 1934 (the “Exchange Act”), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or ) becomes the beneficial owner” owner (as defined that term is used in Rule 13d-3 under Section 13(d) of the Exchange Act), directly or indirectly, of securities of the Company representing 20% fifty percent (50%) or more of the total voting power represented by the Company’s then outstanding Voting Securities, capital stock entitled to vote in the election of directors; (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iiiII) the stockholders shareholders of the Company approve a any consolidation or merger or consolidation of the Company with any other corporationCompany, other than a consolidation or merger or consolidation which would result in the Voting Securities of the Company outstanding in which the holders of Common Stock immediately prior thereto continuing to represent the consolidation or merger hold more than fifty percent (either by remaining outstanding or by being converted into Voting Securities 50%) of the common stock of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding corporation immediately after such merger the consolidation or consolidation, merger; or (III) the stockholders shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company transfer of (in one transaction or a series of transactions) all or substantially all of the assets of the Company to parties that are not within a “controlled group of corporations” (as defined in Code Section 1563) in which the Company is a member; provided, that, in the event that the RSUs constitute nonqualified deferred compensation subject to Section 409A, such Change in Control is also a “change in control event” within the meaning of Treasury Regulation Section 1.409A-3(i)(5). For purposes of this Agreement, “Cause” shall mean (I) Participant commits a felony or engages in fraud, misappropriation or embezzlement, (II) Participant knowingly fails or refuses to perform his or her duties in a material way and, to the extent that the Company determines such failure or refusal can be reasonably cured, Participant fails or refuses to effect a cure within 10 days after the Company notifies the Participant in writing of the failure or refusal, (III) Participant knowingly causes, or knowingly creates a serious risk of causing, material harm to the Company’s assetsbusiness or reputation or (IV) Participant breaches, in a material way, Participant’s employment agreement (an “Employment Agreement”), to the extent one exists, Participant’s confidential information agreement or any other material agreement between the Participant and the Company, and to the extent that the Company determines such breach can reasonably be cured, Participant fails or refuses to effect a cure within 10 days after the Company’s notification to the Participant in writing of the breach. For purposes of this section, “Good Reason” shall mean termination of the Participant’s employment by the Participant within 90 days following (I) a material diminution in the Participant’s positions, duties or responsibilities, (II) a material reduction in the Participant’s then current base salary, (III) a material breach of any provision of the Participant’s Employment Agreement, to the extent one exists, by the Company or (IV) the Company changes Participant’s principal place of work to a location more than 50 miles from Participant’s then current principal place of work, unless Participant is on an international assignment, in which case, if, during the term of such assignment, the Company changes Participant’s principal place of work to a location more than 50 miles from the host location specified in his or her international assignment terms, as may be in effect from time to time. Notwithstanding the foregoing, a termination shall not be treated as a termination for Good Reason (I) if the Participant shall have consented in writing to the occurrence of the event giving rise to the claim of termination for Good Reason or (II) unless the Participant shall have delivered a written notice to the Company within thirty (30) days of his having actual knowledge of the occurrence of one of such events stating that he intends to terminate his employment for Good Reason and specifying the factual basis for such termination, and such event, if capable of being cured, shall not have been cured within thirty (30) days of the receipt of such notice.

Appears in 2 contracts

Samples: Restricted Stock Unit Agreement (MKS Instruments Inc), Restricted Stock Unit Agreement (MKS Instruments Inc)

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Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if of the Company means the occurrence of any of the following events: (i) any “person” merger, consolidation or other reorganization whereby the Company’s equity holders existing immediately prior to such merger, consolidation or reorganization do not, immediately after consummation of such merger, consolidation or reorganization, beneficially own (as such term is used in Sections 13(dwithin the meaning of Rule 13(d)(3) and 14(d) of promulgated under the Securities Exchange Act of 19341934 (as amended, as amended (the “Exchange Act”)) more than fifty percent (50%) of the combined voting power of the surviving entity’s then outstanding voting securities; (ii) the Bank is merged or consolidated into, or otherwise acquired by, an entity other than a trustee or other fiduciary holding securities under an employee benefit plan wholly-owned subsidiary of the Company or a corporation owned directly or indirectly by the stockholders of Company; (iii) the Company sells, leases or exchanges all or substantially all of its assets to any other person or entity in substantially which the same proportions as their ownership of stock Company, any subsidiary of the Company, or the Company’s equity holders existing immediately prior to such sale, lease or exchange beneficially own less than fifty percent (50%) of the combined voting power of such acquiring entity’s then outstanding voting securities; (iv) the Company is dissolved and liquidated; (v) any person or becomes the entity, including a beneficial ownergroup(as defined in Rule 13d-3 under contemplated by Section 13(d)(3) of the Exchange Act), directly acquires or indirectly, gains beneficial ownership of securities more than fifty percent (50%) of the Company representing 20% or more of the total combined voting power represented by of the Company’s then outstanding Voting Securities, voting securities; or (iivi) individuals who on any change in the date identity of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least directors constituting a majority of the members of Board within a twenty-four (24)-month period unless the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member change was approved or recommended by a majority vote of the members of the Incumbent Board then still in officeDirectors, such new member shall be considered as where “Incumbent Director” means a member of the Incumbent Board)Board at the beginning of the period in question, including any director who was not a member of the Board at the beginning of such period but was elected or nominated to the Board by, or (iii) on the stockholders recommendation of or with the approval of, at least two-thirds of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsdirectors who then qualified as Incumbent Directors.

Appears in 2 contracts

Samples: Executive Employment Agreement (Spirit of Texas Bancshares, Inc.), Executive Employment Agreement (Spirit of Texas Bancshares, Inc.)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if mean the first occurrence of any of the following: (ia) any “person” (as such term is used in Sections 13(d) and 14(d) consolidation, merger, plan of the Securities Exchange Act of 1934share exchange, as amended (the “Exchange Act”), other than a trustee or other fiduciary holding securities under an employee benefit plan of reorganization involving the Company or (a corporation owned directly or indirectly by “Merger”) as a result of which the stockholders holders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of outstanding securities of the Company representing 20ordinarily having the right to vote for the election of directors (“Voting Securities”) immediately prior to the Merger do not continue to hold at least 50% or more of the total combined voting power represented of the outstanding Voting Securities of the surviving or continuing corporation immediately after the Merger, disregarding any Voting Securities issued or retained by such holders in respect of securities of any other party to the Merger; (b) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, the assets of the Company’s then outstanding Voting Securities, ; (iic) the adoption of any plan or proposal for the liquidation or dissolution of the Company; (d) individuals who constitute the Board on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members Board, provided that any person becoming a director after the date of the Board (providedthis Agreement whose election, however, that if the appointment or election (or nomination for election) of any new Board member election by the Company’s shareholders, was approved or recommended by a majority vote of at least a majority of the members of directors comprising the Incumbent Board then still (either by a specific vote or by approval of the proxy statement of the Company in officewhich such person is named as a nominee for director, without objection to such new member nomination) shall be be, for purposes of this clause (d), considered as though such person were a member of the Incumbent Board; (e) any Person (as defined below) shall have become the beneficial owner (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934 (the “Exchange Act”)), directly or indirectly other than by purchase from the Company, of securities of the Company ordinarily having the right to vote for the election of directors (“Voting Securities”) representing 50% or more of the combined voting power of the then outstanding Voting Securities. Notwithstanding anything in the foregoing to the contrary, unless otherwise determined by the Board, no Change in Control shall be deemed to have occurred for purposes of this Agreement if (a) you acquire (other than on the same basis as all other holders of the Company shares) an equity interest in an entity that acquires the Company in a Change in Control otherwise described under clause (a) or (b) of the prior sentence, or (iiib) the stockholders you are part of a group that constitutes a Person which becomes a beneficial owner of Voting Securities in a transaction that otherwise would have resulted in a Change in Control under clause (e) of the Company approve a merger prior sentence. For purposes of this Agreement, the term “Person” shall mean and include any individual, corporation, partnership, group, association or consolidation other “person,” as such term is used in Section 14(d) of the Company with any other corporationExchange Act, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition any employee benefit plan(s) sponsored by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets.

Appears in 2 contracts

Samples: Noncompetition Agreement (Tektronix Inc), Noncompetition Agreement (Tektronix Inc)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed mean and includes each of the following: i A transaction or series of transactions (other than an offering of Company shares to have occurred if (ithe general public through a registration statement filed with the Securities and Exchange Commission) whereby any “person” or related “group” of “persons” (as such term is terms are used in Sections 13(d) and 14(d14(d)(2) of the Securities Exchange Act of 1934, as amended ) (the “Exchange Act”), other than a trustee or other fiduciary holding securities under the Company, any of its subsidiaries, an employee benefit plan of maintained by the Company or any of its subsidiaries or a corporation owned “person” that, prior to such transaction, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of controls, is controlled by, or is under common control with, the Company, is ) directly or becomes indirectly acquires beneficial ownership (within the “beneficial owner” (as defined in meaning of Rule 13d-3 under the Securities Exchange Act), directly or indirectly, Act of 1934) of securities of the Company representing 20possessing more than 50% or more of the total combined voting power represented of the Company’s securities outstanding immediately after such acquisition; or ii During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in Sections 11(b)(i) or 11(b)(iii) hereof) whose election by the Board or nomination for election by the Company’s then outstanding Voting Securities, (ii) individuals who on the date stockholders was approved by a vote of this Agreement are members at least two-thirds of the Board (directors then still in office who either were directors at the “Incumbent Board”) beginning of the two-year period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment thereof; or election (or nomination for election) of any new Board member was approved or recommended iii The consummation by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of whether directly involving the Company or such surviving entity outstanding immediately after such merger indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or the stockholders of the Company approve business combination or (y) a plan of complete liquidation of the Company or an agreement for the sale or other disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets.assets in any single transaction or series of related transactions or (z) the acquisition of assets or shares of another entity, in each case other than a transaction:

Appears in 2 contracts

Samples: Severance Benefit Agreement (Broadcom Inc.), Severance Benefit Agreement (Broadcom Inc.)

Change in Control. For purposes of this Agreement, a “Change in Control” means a change in control of the Company occurring after June 1, 2006, of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar item on any similar schedule or form) promulgated under the Securities Exchange Act of 1934 (the “Act”), whether or not the Company is then subject to such reporting requirement; provided, however, that, without limitation, such a Change in Control shall be deemed to have occurred if after June 1, 2006, (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), ) other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, Company is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 2015% or more of the total combined voting power represented by of the Company’s then outstanding Voting Securities, securities without the prior approval of at least two-thirds of the members of the board of directors of the Company in office immediately prior to such person attaining such percentage interest; (ii) individuals who on there occurs a proxy contest, or the date Company is a party to a merger, consolidation, sale of this Agreement are assets, plan of liquidation or other reorganization not approved by at least two-thirds of the members of the Board board of directors of the Company then in office, as a consequence of which members of the board of directors in office immediately prior to such transaction or event constitute less than a majority of the board of directors thereafter; or (iii) during any period of two consecutive years, other than as a result of an event described in clause (ii) of this subsection (c), individuals who at the “Incumbent Board”beginning of such period constituted the board of directors of the Company (including for this purpose any new director whose election or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of such period) cease for any reason to constitute at least a majority of the members board of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsdirectors.

Appears in 2 contracts

Samples: Employment Agreement (Teton Energy Corp), Indemnity Agreement (Teton Energy Corp)

Change in Control. For purposes Any of this Agreement, a “Change in Control” shall be deemed to have occurred if the following: (i) a merger of the Company with another entity, a consolidation involving the Company, or the sale of all or substantially all of the assets of the Company to another entity if, in any “person” such case, (A) the holders of equity securities of the Company immediately prior to such transaction or event do not beneficially own immediately after such transaction or event, in substantially the same proportions that they owned the equity securities of the Company immediately prior to such transaction or event, 50% or more of the common equity of the resulting entity, (B) the holders of equity securities of the Company immediately prior to such transaction or event do not beneficially own immediately after such transaction or event, in substantially the same proportions that they owned the equity securities of the Company immediately prior to such transaction or event, equity securities of the resulting entity entitled to 50% or more of the votes then eligible to be cast in the election of directors generally (or comparable governing body) of the resulting entity, or (C) the persons who were members of the Board immediately prior to such transaction or event shall not constitute at least a majority of the board of directors of the resulting entity immediately after such transaction or event, (ii) shareholder approval of a plan of dissolution or liquidation of the Company, (iii) when any person or entity, including a "group" as such term is used in Sections 13(d) and 14(dcontemplated by section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), (other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any affiliate of the Company), acquires or gains ownership or control (including, without limitation, power to vote) of more than 30% of the combined voting power of the outstanding securities of, (A) if the Company has not engaged in a corporation owned directly merger or indirectly by consolidation, the stockholders Company, or (B) if the Company has engaged in a merger or consolidation, the resulting entity, or (iv) a change in the composition of the Board, as a result of which fewer than a majority of the supervisory directors are Incumbent Directors. For purposes of the preceding sentence, (1) "resulting entity" in the context of a transaction or event that is a merger, consolidation or sale of all or substantially all assets shall mean the surviving entity (or acquiring entity in the case of an asset sale) unless the surviving entity (or acquiring entity in the case of an asset sale) is a subsidiary of another entity and the holders of common equity of the Company receive capital stock of such other entity in substantially such transaction or event, in which event the same proportions resulting entity shall be such other entity, (2) subsequent to the consummation of a merger or consolidation that does not constitute a Change in Control, the term "Company" shall refer to the resulting entity and the term "Board" shall refer to the board of directors (or comparable governing body) of the resulting entity, and (3) "Incumbent Directors" shall mean directors who either (a) are directors of the Company as their of February 28, 2003, or (b) are elected, or nominated for election, to the Board with the affirmative votes of at least two-thirds of the Incumbent Directors at the time of such election or nomination, but Incumbent Director shall not include an individual whose election or nomination occurs as a result of either (x) an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or (y) an actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Board. Notwithstanding the foregoing, for purposes of Section 2.7, under no circumstances shall any of the foregoing events constitute a Change in Control unless such event also constitutes a change in the ownership of stock or effective control of the Company, is or becomes in the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, ownership of securities a substantial portion of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all assets of the Company’s assets, within the meaning of section 409A(a)(2)(A)(v) of the Code (and applicable administrative guidance thereunder).

Appears in 2 contracts

Samples: Core Laboratories N V, Core Laboratories N V

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if means (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”amended), other than a Subsidiary or a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the CompanySubsidiary, is or becomes the “beneficial ownerBeneficial Owner” (as defined in Rule 13d-3 under the Exchange said Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securitiescapital stock (provided, however, that following the consummation of a firmly underwritten initial public offering registered under the Securities Act of 1933, as amended, of the Company’s capital stock, a person’s becoming the Beneficial Owner, directly or indirectly, of securities representing more than 20% of the total voting power represented by the Company’s then outstanding capital stock shall not be a Change in Control if such person has become such owner by becoming the Beneficial Owner of shares of the Company’s Class B Common Stock) or (ii) during any period of two consecutive years, individuals who on at the date beginning of this Agreement are members such period constitute the Board and any new director whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the Board (directors then still in office who either were directors at the “Incumbent Board”) 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 members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board)thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which that would result in the Voting Securities outstanding capital stock of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities capital stock of the surviving entity) at least 80% of the total voting power represented by the Voting Securities capital stock of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) of all or substantially all of the Company’s assets.

Appears in 2 contracts

Samples: Indemnity Agreement (GoPro, Inc.), Indemnity Agreement (Corium International, Inc.)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 13-d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities (unless such change in beneficial ownership results solely from a reduction in the aggregate number of outstanding shares of Voting Securities, ); (ii) during any period of two consecutive years, not including any period prior to the execution of this Indemnification Agreement, individuals who on at the date beginning of this Agreement are members such period constitute the Board of Directors of the Company (and any new director whose election by the Board of Directors or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the “Incumbent Board”) 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 members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), thereof; or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets.

Appears in 2 contracts

Samples: Indemnification Agreement (Telomir Pharmaceuticals, Inc.), Indemnification Agreement (Mira Pharmaceuticals, Inc.)

Change in Control. For purposes of this Agreement, a “Change in Control" shall be deemed to have occurred if mean (i) the acquisition, directly or indirectly, in one transaction or a series of related transactions, by any “person” person or group (as such term is used in Sections 13(d) and 14(dwithin the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than a trustee or other fiduciary holding securities under an employee benefit plan amended) of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their beneficial ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or possessing more than fifty percent (50%) of the total combined voting power represented by of all outstanding securities of the Company’s then outstanding Voting Securities, ; (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation in which the Company is not the surviving entity, except for a transaction in which the holders of the outstanding voting securities of the Company with any other corporation, other than a immediately prior to such merger or consolidation which would result hold, in the Voting Securities aggregate, securities possessing more than fifty percent (50%) of the Company total combined voting power of all outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or ; (iii) a reverse merger in which the stockholders Company is the surviving entity but in which securities possessing more than fifty percent (50%) of the total combined voting power of all outstanding voting securities of the Company approve are transferred to or acquired by a plan of complete liquidation of person or persons different from the Company persons holding those securities immediately prior to such merger; (iv) the sale, transfer or an agreement for the sale or other disposition by the Company of (in one transaction or a series of related transactions) of all or substantially all of the assets of the Company; or (v) the approval by the stockholders of a plan or proposal for the liquidation or dissolution of the Company. In addition, a “Change in Control” of the Company shall be deemed to have occurred if, at any time during any period of 12 consecutive months during the term of this Agreement, individuals who at the beginning of the 12-month period constituted the entire Board of Directors of the Company do not for any reason constitute a majority of the Board of Directors, unless the election, or the nomination for election by the Company’s assetsstockholders, of each new director was approved by a vote of at least a majority of the directors then still in office who were directors at the beginning of the period (but not including any new director whose election or nomination is in connection with an actual or threatened proxy contest relating to the election of directors of the Company).

Appears in 2 contracts

Samples: Employment Agreement (Qualstar Corp), Employment Agreement (Qualstar Corp)

Change in Control. Upon the occurrence of a Change in Control (as hereinafter defined), the Employee shall have the right to terminate this Agreement. Upon the termination of this Agreement by the Employee due to the occurrence of a Change in Control, the Employee shall be entitled to receive one year of Base Compensation in one lump sum within five days of the effective date of such termination, subject to withholding for applicable taxes and other amounts, all unvested stock options held by the Employee shall immediately vest and become exercisable. For purposes of this Agreement, a “Change in Control” of the Company shall be deemed to have occurred if in the event that: (i) any “person” (individuals who, as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act date hereof, constitute the Board cease for any reason to constitute at least a majority of 1934the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Board shall be considered as amended though such individual was a member of the Board as of the date hereof; (ii) the “Exchange Act”)Company shall have been sold by either (A) a sale of all or substantially all its assets, or (B) a merger or consolidation, other than a trustee any merger or other fiduciary holding securities under an employee benefit plan of consolidation pursuant to which the Company acquires another entity, or (C) a corporation owned directly tender offer, whether solicited or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of unsolicited; or (iii) any party, other than the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange ActAct of 1934, as amended), directly or indirectly, of voting securities of the Company representing 2050% or more of the total voting power represented by of all the Company’s then then-outstanding Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all securities of the Company’s assets.

Appears in 2 contracts

Samples: Employment Agreement (Clarus Corp), Employment Agreement (Clarus Corp)

Change in Control. For purposes of this Agreement, a “Change in Control" shall be deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3 13-d-3 under the Exchange said Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s 's then outstanding Voting Securities, ; (ii) during any period of two consecutive years, individuals who on at the date beginning of this Agreement are members such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the “Incumbent Board”) 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 members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), thereof; or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s 's assets.

Appears in 2 contracts

Samples: Indemnification Agreement (Checkers Drive in Restaurants Inc /De), Indemnification Agreement (Sun Hydraulics Inc)

Change in Control. For purposes of this Agreement, a “A Change in Control” Control shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange said Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who on at the date beginning of this Agreement are members such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the “Incumbent Board”) 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 members Board of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board)Directors, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto to such a merger or consolidation continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) of all or substantially all of the Company’s assets.

Appears in 2 contracts

Samples: Indemnification Agreement (MDC Holdings Inc), Indemnification Agreement (MDC Holdings Inc)

Change in Control. For purposes of this Agreement, a “Change in ControlControl of the Company” shall be deemed to have occurred if (iA) there shall be consummated (1) any consolidation or merger of the Company or Bancorp in which the Company or Bancorp, as the case may be, is not the continuing or surviving corporation (unless the shareholders of Company or Bancorp, as the case may be, immediately before such merger own immediately after such merger more than a majority of the voting securities of the surviving entity), or pursuant to which shares of the Company’s or Bancorp’s common stock would be converted in whole or in part into cash, securities or other property, or (2) any sale, lease, exchange or transfer (in one transaction or a series of related transactions) of all or substantially all the assets of the Company or Bancorp, or (B) the shareholders of the Company or Bancorp shall approve any plan or proposal for the liquidation or dissolution of the Company or Bancorp, or (C) any “person” (as such term is used in Sections 13(d13(d)(3) and 14(d14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other than the Company or Bancorp, or a trustee subsidiary thereof, or other fiduciary holding securities under an any employee benefit plan sponsored by the Company or Bancorp, or a subsidiary thereof, or a corporation owned, directly or indirectly, by the shareholders of the Company or a corporation owned directly or indirectly by the stockholders of the Company Bancorp in substantially the same proportions as their ownership of stock of the CompanyCompany or Bancorp, is or becomes shall become the beneficial owner” owner (as defined in within the meaning of Rule 13d-3 under the Exchange Act), directly or indirectly, ) of securities of the Company or Bancorp representing 20% or more of the total combined voting power represented by the Company’s then outstanding Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsor Bancorp’s then outstanding securities ordinarily (and apart from rights accruing in special circumstances) having the right to vote in the election of directors as a result of a tender or exchange offer, open market purchases, privately negotiated purchases or otherwise.

Appears in 2 contracts

Samples: Agreement (Heritage Oaks Bancorp), Agreement (Heritage Oaks Bancorp)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if mean any of the following events, provided that such event is closed, consummated, completed, or disposed of on or after June 10, 2019: (i) any “person” a sale of all or substantially all of the assets of the Company; (as ii) a merger or consolidation in which the Company is not the surviving entity and in which the holders of the Company’s outstanding voting shares immediately prior to such term is used in Sections 13(d) and 14(dtransaction own, immediately after such transaction, securities representing less than fifty percent (50%) of the Securities Exchange Act voting power of 1934the entity surviving such transaction or, as amended where the surviving entity is a wholly-owned subsidiary of another entity, the surviving entity’s parent; (iii) a reverse merger in which the “Exchange Act”)Company is the surviving entity but the ordinary shares outstanding immediately preceding the merger are converted by virtue of the merger into other property, other whether in the form of securities of the surviving entity’s parent, cash or otherwise, and in which the holders of the Company’s outstanding voting stock immediately prior to such transaction own, immediately after such transaction, securities representing less than a trustee fifty percent (50%) of the voting power of the Company; or other fiduciary holding securities under (iv) an acquisition by any person, entity or group (excluding any employee benefit plan plan, or related trust, sponsored or maintained by the Company or subsidiary of the Company or a corporation owned directly or indirectly other entity controlled by the stockholders Company) of the Company in substantially the same proportions as their beneficial ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more at least seventy-five percent (75%) of the total combined voting power represented by entitled to vote in the Company’s then outstanding Voting Securities, (ii) individuals who on the date election of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (directors; provided, however, that if nothing in this paragraph shall apply to a sale of assets, merger or other transaction effected exclusively for the appointment or election (or nomination for election) purpose of any new Board member was approved or recommended by a majority vote of changing the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders domicile of the Company approve and further provided that none of the foregoing transactions shall constitute a merger or consolidation Change in Control unless it also constitutes a change in ownership of the Company with any other corporation, other than within the meaning of Treasury Regulation Section 1.409A-3(i)(5)(v) or a merger or consolidation which would result change in ownership of a substantial portion of the Voting Securities assets of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities within the meaning of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsTreasury Regulation Section 1.409A-3(i)(5)(vii).

Appears in 2 contracts

Samples: Employment Agreement (Arcturus Therapeutics Holdings Inc.), Employment Agreement (Arcturus Therapeutics Holdings Inc.)

Change in Control. In the event of the occurrence of a Change in Control of the Company, the Executive shall remain employed by the Company, pursuant to the terms and conditions of this Agreement. If, after the Change in Control, the Executive's employment is terminated without Cause or the Executive resigns following a material diminution in her duties as set forth in Section 1.2 of this Agreement, then the Executive shall continue to receive her Base Salary for one year, and the ISOs granted to the Executive shall become fully vested and exercisable as of the date of termination or resignation, as the case may be. The options will remain exercisable for a period of 90 days following such date, all in accordance with the other terms of the ISO plan. For purposes of this Agreement, a "Change in Control" shall be deemed to have occurred if mean any of the following: (i) any “person” person who is not an "affiliate" (as such term is used defined in Sections 13(d) and 14(d) of Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than a trustee or other fiduciary holding securities under an employee benefit plan amended) of the Company or a corporation owned directly or indirectly by the stockholders as of the Company in substantially the same proportions as their ownership date of stock of the Company, is or this Agreement becomes the beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 2050% or more of the total combined voting power represented by of the then outstanding securities of the Company except pursuant to a public offering of securities of the Company’s then outstanding Voting Securities; (ii) the sale of the Company substantially as an entirety (whether by sale of stock, sale of assets, merger, consolidation, or otherwise) to a person who is not an affiliate of the Company as of the date of this Agreement; or (iii) there occurs a merger, consolidation or other reorganization of the Company with a person who is not an affiliate of the Company as of the date of this Agreement, and in which shareholders of the Company immediately preceding the merger hold less than 50% (the voting and consent rights of Class C Preferred Stock shall be disregarded in this calculation) of the combined voting power for the election of directors of the Company immediately following the merger. A change of Control shall not be deemed to occur because of the sale or conversion of any or all of Class C Preferred Stock of the Company unless there is a simultaneous change described in clauses (i), (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation preceding sentence. Change of control shall not include the sale, by the preferred shareholders, of any of the Company with Preferred Stock issued and outstanding at any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetstime.

Appears in 2 contracts

Samples: Employment Agreement (Monro Muffler Brake Inc), Employment Agreement (Monro Muffler Brake Inc)

Change in Control. For purposes of this AgreementGrant, a “Change in Control” shall be deemed mean “Change in Control” means the first to have occurred if occur of the following: (ix) the acquisition (an “Acquisition”) by any “person” individual, entity or group (as such term is used in Sections 13(dwithin the meaning of Section 13(d)(3) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either (A) the then- outstanding Shares (the “Outstanding Shares”) or (B) the combined voting power of the then-outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Voting Securities”); provided, other than a trustee or other fiduciary holding securities under an however, that for purposes of this definition, any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company shall not constitute a Change in Control; and (y) consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company (a “Business Combination”), in each case, unless, following such Acquisition or Business Combination, all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Shares and Outstanding Voting Securities immediately prior to the Acquisition or Business Combination beneficially own, directly or indirectly, more than 50% of, respectively, the then-outstanding shares of common stock and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from the Acquisition or Business Combination (including, without limitation, a corporation owned that as a result of the transaction owns the Company or all or substantially all of the Company’s assets either directly or indirectly by the stockholders of the Company through one or more subsidiaries) in substantially the same proportions as their ownership of stock immediately prior to the Acquisition or Business Combination of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Outstanding Shares and Outstanding Voting Securities, (ii) individuals who on as the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetscase may be.

Appears in 1 contract

Samples: General Electric Co

Change in Control. In the event of a Change in Control on or prior to the end of the final vesting date specified in Section 2 of this Agreement, the restrictions on any outstanding Restricted Stock Shares shall immediately lapse and such shares shall immediately vest. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if (i) the Company becomes a subsidiary of another corporation or entity or is merged or consolidated into another corporation or entity or substantially all of the assets of the Company is sold to another person, corporation, partnership or other entity; or (ii) any person, corporation, partnership or other entity, either alone or in conjunction with its personaffiliates,(as such that term is used defined in Sections 13(d) and 14(d) Rule 405 of the General Rules and Regulations under the Securities Exchange Act of 19341933, as amended (the amended, or other group of persons, corporations, partnerships or other entities who are not Exchange Act”)affiliates” but who are acting in concert, other than a trustee Employee or other fiduciary holding Employee’s family members or any person, organization or entity that is controlled by Employee or Employee’s family members, becomes the owner of record or beneficially of securities under an employee benefit plan of the Company that represent 33 1/3% or more of the combined voting power of the Company’s then outstanding securities entitled to elect the Board of Directors of the Company; or (iii) the Board of Directors of the Company or a corporation owned directly committee thereof makes a determination in its reasonable judgment that a “Change in Control” has taken place. In addition, if the Company sells or indirectly by divests the stockholders subsidiary or division of the Company in substantially of which the same proportions as their ownership Employee is a part of stock of the Companyto another person, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger partnership or consolidation which would result in entity, the Voting Securities of the Company restrictions on any outstanding Restricted Stock Shares shall immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or lapse and such surviving entity outstanding shares shall immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsvest.

Appears in 1 contract

Samples: Restricted Stock Agreement (Clark Inc)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed mean the occurrence of any of the following events: A merger or consolidation involving the Company or any subsidiary of the Company after the completion of which: (A) in the case of a merger (other than a triangular merger) or a consolidation involving the Company, the stockholders of the Company immediately prior to have occurred if the completion of such merger or consolidation beneficially own (i) any “person” (as such term is used in Sections 13(d) and 14(d) within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Actcomparable successor rules), directly or indirectly, outstanding voting securities representing less than fifty percent (50%) of the combined voting power of the surviving entity in such merger or consolidation, and (B) in the case of a triangular merger involving the Company or a subsidiary of the Company, the stockholders of the company immediately prior to the completion of such merger beneficially own (within the meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable successor rules), directly or indirectly, outstanding voting securities representing less than fifty percent (50%) of the combined voting power of the surviving entity in such merger and less than fifty percent (50%) of the combined voting power of the parent of the surviving entity in such merger; An acquisition by any person, entity or “group” (within the meaning of Sections 13(d) or 14(d) of the Exchange Act or any comparable successor provisions), other than any Executive benefit plan, or related trust, sponsored or maintained by the Company or an affiliate of the Company and other than in a merger or consolidation of the type referred to in clause “(i)” of this Section 9(j)(i), of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable successor rules) of outstanding voting securities of the Company representing 20% or more than fifty percent (50%) of the total combined voting power represented by of the Company’s then outstanding Voting SecuritiesCompany (in a single transaction or series of related transactions); or In the event that the individuals who, (ii) individuals who on as of the date of this Agreement Effective Date, are members of the Board (the “Incumbent Board”) ), cease for any reason to constitute at least a majority fifty percent (50%) of the members Board. (However, if the subsequent election, or nomination by the Board for election by the Company's stockholders, of any new member of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was is approved or recommended by a majority vote of the members at least fifty percent (50%) of the Incumbent Board then still in officeBoard, such new member of the Board shall be considered as a member of the Incumbent Board.), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets.

Appears in 1 contract

Samples: Employment Agreement (Hawkeye Systems, Inc.)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if Control of the Company means: (i) a sale, merger, or transfer of all or substantially all of the assets of the Company; (ii) if any “person” "Person" or "Group" of Persons (as such term is used in terms are determined pursuant to Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, and the rules and regulations promulgated thereunder) either alone or in conjunction with its "Affiliates" (as amended (that term is defined in Rule 405 under the “Exchange Securities Act), other than a trustee person or other fiduciary holding securities under an employee benefit plan group consisting solely of the Company Management Stockholders or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” "Affiliates" (as that term is defined in Rule 13d-3 405 under the Exchange Securities Act), becomes the beneficial owner, directly or indirectly, of voting securities of the Company representing, or securities convertible into, or exchangeable for, securities representing 20% or more than fifty percent (50%) of the total combined voting power represented by of the Company’s 's then outstanding Voting Securities, securities eligible to vote for the election of Directors; or (iiiii) individuals who on the date if any "Person" or "Group" of this Agreement Persons (as such terms are members determined pursuant to Section 13(d) and 14(d) of the Board Exchange Act and the rules and regulations promulgated thereunder) either alone or in conjunction with its "Affiliates" (as that term is defined in Rule 405 under the “Incumbent Board”) cease for any reason Securities Act), acquires the right or power to constitute at least nominate and/or control, directly or indirectly, whether through the ownership of voting securities of the Company, by contract or otherwise, a majority of the members of the Company's Board of Directors without having first received the prior written consent of at least two-thirds (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by including a majority vote of the Management Directors) of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders Directors of the Company approve then in office prior to such person or group of persons acquiring such right or power. In the event a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result Change in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent Control: (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactionsa) all or substantially all shares under the First and Second Options shall become immediately vested one hundred percent (100%) and shall remain exercisable for their entire term, and (b) Roadmaster shall pay Executive an amount equal to one year's base salary, in equal installments payable on the same payment dates used for payment of salary to Roadmaster's other management personnel. Executive agrees that execution and delivery of Roadmaster's customary release is a condition precedent to the Company’s assetspayment of any severance compensation.

Appears in 1 contract

Samples: Employment Agreement (RDM Sports Group Inc)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if (i) " means the occurrence of any of the following: Any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (in effect on the “Exchange Act”date first written above), other than a trustee pension, profit-sharing or other fiduciary holding securities under an employee benefit plan of established by the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the CompanyBank, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange ActAct in effect as of the date first written above), directly or indirectly, of securities of the Company representing 2025% or more of the total combined voting power represented by of the Company’s 's then outstanding Voting Securitiessecurities; During any period of two consecutive years, (ii) individuals who on at the date beginning of this Agreement are members such period constitute the Board of Directors of the Board (the “Incumbent Board”) Company cease for any reason to constitute at least a majority thereof, unless the election of each director who was not a director at the beginning of such period has been approved in advance by directors representing at least a majority of the members directors then in office who were directors at the beginning of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the period; The stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80% fifty percent (50%) of the total voting power represented by the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the ; The stockholders of the Company or the Board of Directors of the Company or of the Bank approve a plan of complete liquidation of the Company or an agreement for the sale of or disposition by the Company of (in one transaction or a series of transactions) of all or substantially all of the Company’s 's or the Bank's assets; Any "person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act in effect on the date first written above) shall have commenced a bona fide tender or exchange offer to purchase shares of common stock of the Company such that upon consummation of such offer such person would own or control 25% or more of the outstanding shares of common stock of the Company; Any "person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act in effect on the date first written above) shall have filed an application or notice with any federal or state regulatory agency for clearance or approval to (i) merge or consolidate, or enter into any similar transaction, with the Company or the Bank, (ii) purchase, lease or otherwise acquire all or substantially all of the assets of the Company or the Bank or (iii) purchase or otherwise acquire (including by way of merger, consolidation, share exchange or any similar transaction) securities representing 25% or more of the voting power of the Company or the Bank; or Any other event that constitutes a change in control of a nature that would be required to be reported by the Company in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Exchange Act or any successor provision (whether or not the Company then in subject to the requirements of the Exchange Act). A Change in Control shall exclude: A public stock offering by the Company; or A convertible debt offering by the Company.

Appears in 1 contract

Samples: Severance Agreement (S&t Bancorp Inc)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if means the occurrence of any of the following events: (i) any “personPerson” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or ) becomes the “beneficial owner” (as defined in Rule 13d-3 under 13d‑3 of the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more than fifty percent (50%) of the total voting power represented by the Company’s then outstanding Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (then‑outstanding voting securities; provided, however, that if for purposes of this subclause (i) the appointment or election acquisition of additional securities by any one Person who is considered to own more than fifty percent (or nomination for election50%) of any new Board member was approved or recommended by a majority vote the total voting power of the members securities of the Incumbent Board then still in office, such new member shall Company will not be considered a Corporate Transaction (as a member defined in the Equity Plan); (ii) the consummation of the Incumbent Board), sale or disposition by the Company of all or substantially all of the Company’s assets; (iii) the stockholders consummation of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entityentity or its parent) at least 80% fifty percent (50%) of the total voting power represented by the Voting Securities voting securities of the Company or such surviving entity or its parent outstanding immediately after such merger or consolidation, ; or (iv) a change in the stockholders effective control of the Company approve that occurs on the date that a plan majority of complete liquidation members of the Board is replaced during any twelve (12) month period by members of the Board whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election. For purpose of this subclause (iv), if any Person is considered to be in effective control of the Company, the acquisition of additional control of the Company or an agreement for the sale or disposition by the Company same Person will not be considered a Corporate Transaction (as defined in the Equity Plan). For purposes of (in one this definition, Persons will be considered to be acting as a group if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction or a series of transactions) all or substantially all of the Company’s assets.with the

Appears in 1 contract

Samples: Outside Activities (BioPharmX Corp)

Change in Control. For purposes Upon the occurrence of a Change in Control, as defined below, the RSU's granted pursuant to Section 3 of this Agreement, a “and the options granted pursuant to Section 4 of this Agreement (together the "Equity Grants"), to the extent such grant was not previously terminated, shall become vested and exercisable. "Change in Control" shall be deemed to have occurred if (i1) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders shareowners of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange said Act), directly or indirectly, of securities of the Company representing 20% fifty percent (50%) or more of the total voting power represented by the Company’s 's then outstanding Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), voting securities; or (iii2) the stockholders consummation of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80% fifty percent (50%) of the total voting power represented by the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders shareowners of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s 's assets.

Appears in 1 contract

Samples: Pharmacyclics Inc

Change in Control. For purposes of this Agreement, a “A "Change in Control" shall be deemed to have occurred if (i) any "person" or "group" (as such term is used in within the meaning of Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange "Act"), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the "beneficial owner" (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 2025% or more of the total combined voting power represented of the outstanding securities of the Company, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the board of directors of the Company and any new director whose election by the board of directors or nomination for election by the Company’s then outstanding Voting Securities, 's stockholders was approved by a vote of at least two-thirds (ii2/3) individuals who on the date of this Agreement are members of the Board (directors then still in office who either were directors at the “Incumbent Board”) 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 members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board)thereof, or (iii) the stockholders of the Company approve (x) a merger or consolidation of the Company with any other corporation, entity (other than a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80% of the total combined voting power represented by of the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation), or the stockholders of the Company approve (y) a plan of complete liquidation of the Company or (z) an agreement or agreements for the sale or disposition disposition, in a single transaction or series of related transactions, by the Company of (in one transaction or a series of transactions) all or substantially all of the property and assets of the Company’s assets. Notwithstanding the foregoing, events otherwise constituting a Change in Control in accordance with the foregoing shall not constitute a Change in Control if such events are solicited by the Company and are approved, recommended or supported by the board of directors of the Company in actions taken prior to, and with respect to, such events.

Appears in 1 contract

Samples: Form of Indemnification Agreement (Cinemark Inc)

Change in Control. For purposes of this Agreement, a “Change in Control” shall mean, and shall be deemed to have occurred if if, on or after the date of this Agreement: (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)amended) or group acting in concert, other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company acting in such capacity or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange said Act), directly or indirectly, of securities of the Company representing 20more than 50% or more of the total voting power represented by the Company’s 's then outstanding Voting Securities, ; (ii) during any period of two (2) consecutive years, individuals who on at the date beginning of this Agreement are members such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the “Incumbent Board”) 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 members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or thereof; (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, corporation other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least eighty percent (80% %) of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, ; or (iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of related transactions) all or substantially all of the Company’s 's assets.

Appears in 1 contract

Samples: Indemnification Agreement (Waste Connections Inc/De)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if means any event or circumstance where (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other than a Subsidiary or a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly Subsidiary or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the CompanyPermitted Holders, is or becomes the “beneficial ownerBeneficial Owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 2050% or more of the total voting power represented by the Company’s then outstanding Voting Securitiescapital stock, (ii) during any period of two consecutive years (not including any period prior to the execution of this Agreement), individuals who on at the date beginning of this Agreement are members such period constitute the Board and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(b)(i), 1(b)(iii) or 1(b)(iv)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the Board (directors then still in office who either were directors at the “Incumbent Board”) 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 members of the Board (providedBoard, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which that would result in the Voting Securities outstanding capital stock of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities capital stock of the surviving entity) at least 8050% of the total voting power represented by the Voting Securities capital stock of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) of all or substantially all of the Company’s assets.

Appears in 1 contract

Samples: Indemnity Agreement (BuzzFeed, Inc.)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed mean the occurrence of any of the following events subsequent to have occurred if the Effective Date: (i) the acquisition of control of the Company or the Bank as defined in the rules and regulations of the applicable banking regulators on the date hereof (provided that in applying the definition of Change in Control as set forth under the rules and regulations of the applicable banking regulators, the Board of Directors of Employers shall substitute its judgment for that of the applicable banking regulators); (ii) an event that would be required to be reported in response to Item 5.01(a) of the Current Report on Form 8-K pursuant to Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), or any successor thereto, whether or not any class of securities of the Company is registered under the Exchange Act; (iii) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act), after the date hereof, other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock any Affiliate of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 2025% or more of the total combined voting power represented by of the Company’s then outstanding Voting Securitiessecurities; (iv) the sale or other disposition of all or substantially all of the assets of the Company or the transfer by the Company of greater than 25% of the voting securities of the Company; or (v) during any period of three consecutive years, (ii) individuals who on at the date beginning of this Agreement are members such period constitute the Board of Directors of the Board (the “Incumbent Board”) Company cease for any reason to constitute at least a majority thereof, unless the election, or the nomination for election by stockholders, of each new director was approved by a vote of at least two-thirds of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board directors then still in office, such new member shall be considered as a member office who were directors at the beginning of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsperiod.

Appears in 1 contract

Samples: Employment Agreement (Pacific Premier Bancorp Inc)

Change in Control. For purposes In the event there is a change of this Agreement, a “Change in Control” shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934control, as amended (the “Exchange Act”)defined below, other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is then the surviving corporation or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by acquiring corporation shall assume the Company’s obligations pursuant to this Agreement, including any stock or stock option agreements that Employee has with the Company. In the event any surviving corporation or acquiring corporation refuses to assume such obligations and/or to substitute similar stock awards for those outstanding under any agreement between Employee and the Company, then outstanding Voting Securitiesthe Employee shall be entitled to accelerated vesting of all unvested shares subject to such agreements, (ii) individuals who on if any, such that all shares will be vested and fully exercisable as of the date of this Agreement are members the Change of the Board Control. Change of Control means: (the “Incumbent Board”i) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or other disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the assets of the Company; (ii) a merger or consolidation in which the Company is not the surviving entity and in which the stockholders of the Company immediately prior to such consolidation or merger own less than fifty percent (50%) of the surviving entity’s voting power immediately after the transaction (iii) a reverse merger in which the Company is the surviving entity but the shares of Common Stock outstanding immediately preceding the merger are converted by virtue of the merger into other property, whether in the form of securities, cash or otherwise, and in which the stockholders of the Company immediately prior to such reverse merger own less than fifty percent (50%) of the Company’s assetsvoting power immediately after the transaction; or (iv) the acquisition, directly or indirectly by any person or related group of persons (other than the Company or a person that directly or indirectly controls, is controlled by, or is under common control with, the Company), of beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) of securities possessing more than 50% of the total combined voting power of the Company’s outstanding securities pursuant to a tender or exchange offer made directly to the Company’s stockholders.

Appears in 1 contract

Samples: Employment Agreement (Fitlife Brands, Inc.)

Change in Control. For purposes of As used in this Agreement, a the phrase “Change in Control” shall be deemed to have occurred if (imean: 3.1 Except as provided in Section 3.3 hereof, the acquisition by any person, entity or “group”, within the meaning of Section 13(d)(3) any “person” (as such term is used in Sections 13(d) and 14(dor 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (excluding, other than a trustee for this purpose, the Company or other fiduciary holding securities under an employee its subsidiaries, or any executive benefit plan of the Company or a corporation owned directly its subsidiaries which acquires beneficial ownership of voting securities of the Company), of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of thirty percent (30%) or indirectly more of either the then outstanding shares of common stock or the combined voting power of the Company’s then outstanding voting securities entitled to vote generally in the election of directors (the “Voting Securities”); or 3.2 Xxxxxx X. Xxxx, III shall cease for any reason to beneficially own at least ten percent ( 10%) of the Voting Securities, or 3.3 Approval by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Companya reorganization, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other person, entity or corporation, other than 3.3.1 a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of another entity) more than fifty percent (50%) of the surviving entity) at least 80% of the total combined voting power represented by of the Voting Securities of the Company or such surviving other entity outstanding immediately after such merger or consolidation, or 3.3.2 a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no person, entity or group acquires twenty-five percent (25%) or more of the combined voting power of the Company’s then outstanding Voting Securities; or 3.4 Approval by the stockholders of the Company approve of a plan of complete liquidation of the Company or an agreement for the a sale or other disposition by the Company of (all or substantially all of the Company’s assets in one transaction or a series of transactions) all or substantially all of the Company’s assets. 4.

Appears in 1 contract

Samples: 197 Change in Control Agreement (Drew Industries Incorporated)

Change in Control. For purposes of this Agreement, a “The Executive may terminate his employment hereunder at any time after twelve months following any other Change in Control (defined below). "Change in Control" shall be deemed to have occurred if mean any of the following: (i1) any “person” consolidation or merger of the Company in which the Company is not the continuing or surviving corporation or pursuant to which shares of the Company's common stock would be converted into cash, securities or other property, other than a merger of the Company in which the holders of the Company's common stock immediately prior to the merger have the same proportionate ownership of common stock of the surviving corporation immediately after the merger; (as such term is used 2) any sale, lease, exchange or other transfer (in Sections 13(d) and 14(done transaction or a series of related transactions) of all or substantially all of the assets of the Company; (3) any approval by the stockholders of the Company of any plan or proposal for the liquidation or dissolution of the Company; (4) the cessation of control (by virtue of their not constituting a majority of directors) of the Company's Board of Directors by the individuals (the "Continuing Directors") who (x) at the date of this Agreement were directors or (y) become directors after the date of this Agreement and whose election or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then in office who were directors at the date of this Agreement or whose election or nomination for election was previously so approved; or (5) the acquisition of beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended amended) of an aggregate of 15% of the voting power of the Company's outstanding voting securities by any person or group (as such term is used in Rule 13d-5 under such Act) who beneficially owned less than 10% of the “Exchange Act”)voting power of the Company's outstanding voting securities on the date hereof; or the acquisition of beneficial ownership of an additional 5% of the voting power of the Company's outstanding voting securities by any person or group who beneficially owned at least 10% of the voting power of the Company's outstanding voting Securities on the date hereof, other than provided, however, that notwithstanding the foregoing, an acquisition shall not constitute a Change in Control hereunder if the acquiror is (w) the Executive, (x) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or and acting in such capacity, (y) a corporation owned owned, directly or indirectly indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of voting securities of the Company representing 20% or more (z) any other person whose acquisition of the total shares of voting power represented securities is approved in advance by the Company’s then outstanding Voting Securities, (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (providedContinuing Directors or who is an affiliate, however, that if the appointment associate or election (or nomination for election) shareholder of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders shareholder of the Company approve a merger or consolidation as of the Company with any other corporationexecution of this Agreement; (6) subject to applicable law, other than in a merger Chapter 11 bankruptcy proceeding, the appointment of a trustee or consolidation which would result in the Voting Securities conversion of a case involving the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetscase under Chapter 7.

Appears in 1 contract

Samples: Employment Agreement (Home Solutions of America Inc)

Change in Control. Effective upon a Change in Control (as defined below), if the Grantee is employed by the Company or an Affiliate immediately prior to the date of such Change in Control, the shares of Restricted Stock will fully vest and the restrictions imposed upon the Restricted Stock by Section 2 will be immediately deemed to have lapsed. For purposes of this Agreementhereof, a “Change in Control” shall be deemed to have occurred if occur on the first to occur of any one of the following events: (ia) the consummation of a consolidation, merger, share exchange or reorganization involving the Company, unless such consolidation, merger, share exchange or reorganization is a “Non-Control Transaction” (as defined below); (b) the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or an agreement for the sale or disposition by the Company of all, or substantially all, of the assets of the Company (in one transaction or a series of related transactions within any period of 24 consecutive months), other than a sale or disposition by the Company of all, or substantially all, of the Company’s assets to an entity at least 75% of the combined voting power of the voting securities of which are owned by stockholders of the Company in substantially the same proportions as their ownership of the Company immediately prior to such sale; (c) any “person” person (as such term is used in Sections Section 13(d) and 14(d14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), ) (other than (1) the Company, (2) any subsidiary of the Company, (3) a trustee or other fiduciary holding securities under an any employee benefit plan of (or any trust forming a part thereof) maintained by the Company or any subsidiary or (4) a corporation owned owned, directly or indirectly indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of in the Company, ) is or becomes the beneficial owner” owner (as defined in within the meaning of Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such person any securities acquired directly from the Company after the Grant Date pursuant to express authorization by the Board that refers to this exception) representing more than 20% or more of the total then outstanding shares of Common Stock or the combined voting power represented by of the Company’s then outstanding Voting Securities, voting securities; or (iid) the following individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members number of directors then serving: individuals who, as of the Grant Date, constitute the entire Board of Directors of the Company (provided, however, that if the “Board”) and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest) whose appointment or election (by the Board or nomination for election) of any new Board member election by the Company’s stockholders was approved or recommended by a majority vote of the members at least two-thirds of the Incumbent Board directors then still in officeoffice who either were directors on the Grant Date or whose appointment, such new member election or nomination for election was previously so approved or recommended. Notwithstanding the foregoing, no “Change in Control” shall be considered as a member deemed to have occurred if there is consummated any transaction or series of integrated transactions immediately following which the record holders of the Incumbent Board)Common Stock immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in an entity that owns all or substantially all of the assets or voting securities of the Company immediately following such transaction or series of transactions. A “Non-Control Transaction” shall mean a consolidation, merger, share exchange or reorganization of the Company where (iiia) the stockholders of the Company approve a merger immediately before such consolidation, merger, share exchange or consolidation of the Company with any other corporationreorganization beneficially own, other directly or indirectly, more than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 8050% of the total then outstanding shares of common stock and the combined voting power represented by of the Voting Securities outstanding voting securities of the corporation resulting from such consolidation, merger, share exchange or reorganization (the “Surviving Corporation”); (b) the individuals who were members of the Board immediately prior to the execution of the agreement providing for such consolidation, merger, share exchange or reorganization constitute at least 50% of the members of the board of directors of the Surviving Corporation; and (c) no person (other than (1) the Company, (2) any subsidiary of the Company or such surviving entity outstanding immediately after such merger (3) any employee benefit plan (or consolidationany trust forming a part thereof) maintained by the Company, the Surviving Corporation or any subsidiary) is or becomes the stockholders beneficial owner, directly or indirectly, of securities of the Company approve a plan of complete liquidation (not including in the securities beneficially owned by such person any securities acquired directly from the Company after the Grant Date pursuant to express authorization by the Board that refers to this exception) representing more than 20% of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all then outstanding shares of the Companycommon stock of the Surviving Corporation or the combined voting power of the Surviving Corporation’s assetsthen outstanding voting securities.

Appears in 1 contract

Samples: Restricted Stock Award Agreement (Hudson Highland Group Inc)

Change in Control. For the purposes of this Agreement, a “Change in Control” means, and shall be deemed to have occurred if if, on or after the date of this Agreement, (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”amended), other than (A) Austin Ventures VII, L.P., Austin Ventures VIII, L.P. or any of their respective affiliates, other than the Company and its subsidiaries (collectively, “AV”), (B) a trustee or other fiduciary holding securities under an employee benefit plan of the Company acting in such capacity, or (C) a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange said Act), directly or indirectly, of securities of the Company representing 20more than 50% or more of the total voting power represented by the Company’s then outstanding Voting Securitiesvoting securities, (ii) during any period of two consecutive years, individuals who on at the date beginning of this Agreement are members such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the “Incumbent Board”) 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 members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board)thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company is consummated with any other corporation, corporation other than a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve consummates a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of related transactions) all or substantially all of the Company’s assets.

Appears in 1 contract

Samples: Indemnification Agreement (Staktek Holdings Inc)

Change in Control. For purposes of this Agreement, a “Change in Control” shall Shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange said Act), directly or indirectly, of securities of the Company representing twenty percent (20% %) or more of the total voting power represented by the Company’s then outstanding Voting Securities, ; or (ii) during any period of two (2) consecutive years, individuals who on at the date beginning of this Agreement are members such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the “Incumbent Board”) 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 members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), thereof; or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least eighty percent (80% %) of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets.

Appears in 1 contract

Samples: Indemnification Agreement (Vyyo Inc)

Change in Control. For purposes of this Agreement, a “Change in Control” means a change in control of the Company occurring after January 31, 2010, of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar item on any similar schedule or form) promulgated under the Securities Exchange Act of 1934 (the “Act”), whether or not the Company is then subject to such reporting requirement; provided, however, that, without limitation, such a Change in Control shall be deemed to have occurred if after January 31, 2010, (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), ) other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, Company is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 2015% or more of the total combined voting power represented by of the Company’s then outstanding Voting Securities, securities without the prior approval of at least two-thirds of the members of the board of directors of the Company in office immediately prior to such person attaining such percentage interest; (ii) individuals who on there occurs a proxy contest, or the date Company is a party to a merger, consolidation, sale of this Agreement are assets, plan of liquidation or other reorganization not approved by at least two-thirds of the members of the Board board of directors of the Company then in office, as a consequence of which members of the board of directors in office immediately prior to such transaction or event constitute less than a majority of the board of directors thereafter; or (iii) during any period of two consecutive years, other than as a result of an event described in clause (ii) of this subsection (c), individuals who at the “Incumbent Board”beginning of such period constituted the board of directors of the Company (including for this purpose any new director whose election or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of such period) cease for any reason to constitute at least a majority of the members board of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsdirectors.

Appears in 1 contract

Samples: Indemnity Agreement (Aftersoft Group)

Change in Control. For purposes Notwithstanding the terms of Section 2, all of the Option Shares shall become Vested Shares immediately prior to any Change in Control; provided that in connection with a Change in Control following the third anniversary of the Grant Date that also constitutes a Sale of the Company, the Option Shares shall become Vested Shares only if the value of the per-share cash and/or securities received by the stockholders of the Company pursuant thereto exceeds the Target Price at the time of the Sale of the Company. As used in this Agreement, a “Change in Control” Control shall be deemed to have occurred if mean (iA) any "person" (as such term is used in Sections Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), ) other than a trustee Hicks, Muse, Tate & Xursx Xxxorporated and/or its affiliates ("Hickx Xxxe") becoming the direct or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “indirect "beneficial owner" (as defined in determined pursuant to Rule 13d-3 under the Exchange Act), directly or indirectly, ) of securities of the Company representing 2030% or more of the total combined voting power represented by of the Company’s 's then outstanding Voting Securitiessecurities, (iiB) individuals who on at the date of this Agreement are Grant Date constitute the members of the Board (and any new director, whose election to the “Incumbent Board”) cease Board or nomination for election to the Board by the Company's stockholders was approved by a vote of at least two-thirds of the directors then in office who either were directors at the Grant Date or whose election or nomination for election was previously so approved, ceasing for any reason to constitute at least a majority of the members of Board, (C) the Board (provided, however, that if the appointment Company merging with or election (or nomination for election) of consolidating into any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board)other entity, or (iii) the stockholders of the Company approve a merger or consolidation and the holders of the Company with voting securities of any other corporation, entity participating in a securities exchange (other than a merger merger, consolidation or consolidation exchange which (1) would result in the Voting Securities holders (and/or their affiliates) of the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80holding immediately thereafter securities representing more than 70% of the total combined voting power represented by the Voting Securities of the Company or such voting securities of the surviving entity outstanding immediately after such merger merger, consolidation or consolidationexchange and (2) would result in the Executive being the chief executive officer of such surviving entity), or (D) the stockholders of the Company approve approving a plan of complete liquidation of the Company or an agreement or agreements for the sale or disposition by the Company of (in one transaction or a series of related transactions) of all or substantially all of the Company’s 's assets, or such a plan commencing other than in connection with a merger, consolidation or exchange which does not constitute a Change in Control under the preceding clause (C). As used in this Agreement, Sale of the Company shall mean a Change in Control pursuant to which the stockholders of the Company receive cash or securities that may be traded on a national securities exchange or in the over the counter market, or any combination thereof, for each share of Common Stock held by that stockholder.

Appears in 1 contract

Samples: Non Qualified Stock Option Agreement (International Home Foods Inc)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 13-d-3 under the Exchange said Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, ; (ii) during any period of two consecutive years, individuals who on at the date beginning of this Agreement are members such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the “Incumbent Board”) 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 members of the Board (provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), thereof; or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets.

Appears in 1 contract

Samples: Indemnification Agreement (Helios Technologies, Inc.)

Change in Control. For purposes of this Agreement, a Change in Control” shall be deemed to have occurred if of Control ----------------- occurs if: (i) any “person” Person or group (as such term is used in within the meaning of Sections 13(d13(d)(3) and 14(d14(d)(2) of the Securities Exchange Act of 1934, as amended amended) other than a Person who is not an Acquiring Person), at any time becomes the Beneficial Owner of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Exchange Act”"Voting Securities"), other than (A) through an acquisition of Voting Securities directly from the Company, (B) as a trustee result of the Company's repurchase of Voting Securities if, thereafter, such Beneficial Owner purchases no additional Voting Securities, or (C) pursuant to a Business Combination (as defined below) that does not constitute a Change in Control pursuant to Section 2(c)(iii); (ii) Continuing Directors cease to constitute a majority of the members of the Board other fiduciary holding securities under an employee benefit plan than pursuant to a Business Combination that does not constitute a Change in Control pursuant to Section 2(c)(iii); (iii) the shareholders of the Company approve a reorganization, merger, share exchange or consolidation (a "Business Combination"), in each case, unless immediately following such Business Combination, (A) all or substantially all of the Persons who were the Beneficial Owners, respectively, of the Common Stock and Voting Securities outstanding immediately prior to such Business Combination Beneficially Own more than 80% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation owned directly or indirectly by the stockholders which as a result of such transaction owns the Company through one or more Subsidiaries) in substantially the same proportions as their ownership ownership, immediately prior to such Business Combination, of the Common Stock and Voting Securities, as the case may be, (B) no Person (other than a Person who is not an Acquiring Person) Beneficially Owns 50% or more of, respectively, the then outstanding shares of common stock of the Company, is corporation resulting from such Business combination or becomes the “beneficial owner” (as defined in Rule 13d-3 under combined voting power of the Exchange Act), directly or indirectly, of then outstanding voting securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, such corporation and (iiC) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board (provided, however, that if the appointment or election (or nomination for election) board of any new Board member was approved or recommended by a majority vote directors of the members of the Incumbent Board then still in office, corporation resulting from such new member shall be considered as a member of the Incumbent Board), Business Combination are Continuing Directors; or (iiiiv) the stockholders shareholders of the Company approve a merger complete liquidation or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities dissolution of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or other disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the assets of the Company’s assets, in each case, unless immediately following such liquidation, dissolution, sale or other disposition, (A) more than 80% of, respectively, the then outstanding shares of common stock of such corporation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then Beneficially Owned by all or substantially all of the Persons who were the Beneficial Owners, respectively, of the Common Stock and Voting Securities outstanding immediately prior to such sale or other disposition in substantially the same proportion as their ownership, immediately prior to such sale or other disposition, of such Common Stock and Voting Securities, as the case may be, (B) less than 20% of, respectively, the then outstanding shares of common stock of such corporation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then Beneficially Owned by any Person (other than any Person who is not an Acquiring Person), and (C) at least a majority of the members of the board of directors of such corporation are Continuing Directors immediately following such sale or disposition; provided, however, that no Change of Control shall be deemed to occur as a result of any transaction undertaken by Pine Holdings, Inc. ("Parent"), Pine Acquisition Corp. ("Acquiror"), or any of their Affiliates or Associates (as those terms are defined in the Amended and Restated Rights Agreement referenced in the next paragraph) pursuant to the Agreement and Plan of Merger, dated as of March 29, 2000, by and among Parent, Acquiror and the Company. For purposes of the foregoing definition, the terms Acquiring Person, ---------------- Beneficial Owner, Company, Continuing Director, and Person shall have ---------------- ------- ------------------- ------ the same definitions as set forth in the Company's Amended and Restated Rights Agreement dated as of December 15, 1997, as amended.

Appears in 1 contract

Samples: Agreement (Pulaski Furniture Corp)

Change in Control. For purposes of this Agreement, a “(a) A "Change in Control" of the Company shall be deemed to have occurred if if: (i) any “1)any "person” (," as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act”), ") (other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a any corporation owned owned, directly or indirectly indirectly, by the stockholders shareholders of the Company in substantially the same proportions as their ownership of stock of the Company), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 2025% or more of the total combined voting power represented by of the Company’s 's then outstanding Voting Securities, securities; (ii) individuals who on the date of this Agreement are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority 2)there is elected 35% or more of the members of the Board (provided, however, that if of Directors of the appointment or election (or Company without the approval of the nomination for election) of any new Board member was approved or recommended such members by a majority vote of the members of the Incumbent Board then still in office, serving prior to such new member shall be considered as a member of the Incumbent Board), or election; (iii) the stockholders 3)the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than (i) a merger or consolidation which would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80more than 75% of the total combined voting power represented by the Voting Securities of the Company voting securities of the Company, or such surviving entity entity, outstanding immediately after such merger or consolidation, ; or (ii) a merger or consolidation effected to implement a recapitalization of the stockholders Company (or similar transaction) in which no "person" (as defined above) acquires more than 50% of the combined voting power of the Companys then- outstanding securities; or (4)the Shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s 's assets. (b) If any Change in Control of the Company occurs and Executive's employment is terminated by the Company or the Executive within four months after the date of the Change in Control for any reason other than Executive's Death, the Company shall pay and provide to Executive the following amounts and benefits: (1)the sum of Executive's full base salary through the date of termination of his employment at the rate in effect at the time of termination or at the time the Change in Control occurs, whichever is higher, and an amount equal to the amount of any bonus which has been earned by him but not yet paid to him. These two amounts shall be paid to Executive in a lump sum within five days following the date of termination, or in the case of a bonus which is not readily calculable at such time, within five days after such bonus can be calculated; and (2)an amount equal to three times the highest total cash and stock option cash value compensation (including base salary and bonuses) paid Executive in any of the Company's last three fiscal years completed prior to such termination. This amount shall be paid to Executive as provided in the last sentence of subsection (a) above; and (3)the benefits provided Executive under Section 3, such as, but not limited to, life, accident, disability, health and travel insurance, and other benefits in effect for Executive at the time notice of termination is given or at the time the Change in Control occurs, whichever may be higher in the case of each benefit, shall be provided to Executive by the Company to the same extent as if Executive had continued to be an employee of the Company for three (3) years from such termination, and such benefits shall, to the extent that they may not be provided or paid under any benefit plan or program, be provided or paid for by the Company by means other than such plan or program. (c) If applicable, the provisions of Section 7(b) shall control over the provisions of Sections 4 and/or 5. In the event that Executive's employment is not terminated by the Company or the Executive for any reason other than the Executive's death within the four month period specified in Section 7(b), the provisions of Sections 4 and 5 shall once again be applicable thereafter. (d) In the event that the payments and benefits specified in this Section 7 would be subject to the tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986 (the "Code"), as amended (or any similar tax that may hereinafter be imposed) because of "excess parachute payments," as defined in Section 280G of the Code, Executive and Company agree that the amounts payable pursuant to this Section 7 shall be reduced by such amount as shall be necessary to avoid the imposition of the Excise Tax. 8.

Appears in 1 contract

Samples: Employment Agreement (Detection Systems Inc)

Change in Control. For purposes of this Agreement, a “Change change in Controlcontrol” shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange ActAct of 1934, as amended), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, voting securities; or (ii) during any period of two consecutive years, individuals who on at the date beginning of this Agreement are members such period constitute the Board and any new director whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the Board (directors then still in office who either were directors at the “Incumbent Board”) 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 members of the Board (provided, however, that if the appointment thereof; or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall be considered as a member of the Incumbent Board), or . (iii) ) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which that would result in the Voting Securities voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities voting securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, ; or (iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) of all or substantially all of the Company’s assets.

Appears in 1 contract

Samples: Indemnity Agreement (Cadence Design Systems Inc)

Change in Control. Effective upon a Change in Control (as defined below), the shares Restricted Stock will fully vest and the restrictions imposed upon the Restricted Stock by Section 2 will be immediately deemed to have lapsed. For purposes of this Agreementhereof, a the term “Change in Control” shall be deemed to have occurred occur if (ia) there shall be consummated (1) any consolidation, merger or reorganization involving the Company, unless such consolidation, merger or reorganization is a personNon-Control Transaction(as defined below) or (2) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company; (b) the stockholders of the Company shall approve any plan or proposal for liquidation or dissolution of the Company; (c) any person (as such term is used in Sections Section 13(d) and 14(d14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other than a trustee or other fiduciary holding securities under an employee benefit plan shall become the beneficial owner (within the meaning of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, ) of securities more than 50% of the Company representing 20% or more of the total combined voting power represented by of the Company’s then outstanding Voting Securitiesvoting securities other than pursuant to a plan or arrangement entered into by such person and the Company; or (d) during any period of two consecutive years, (ii) individuals who on at the date beginning of this Agreement are members of such period constitute the entire Board (the “Incumbent Board”) shall cease for any reason to constitute a majority thereof unless the election, or the nomination for election by the Company’s stockholders, of each new director was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of the period or who were so approved. A “Non-Control Transaction” shall mean a consolidation, merger or reorganization of the Company where (a) the stockholders of the Company immediately before such consolidation, merger or reorganization own, directly or indirectly, at least a majority of the combined voting power of the outstanding voting securities of the corporation resulting from such consolidation, merger or reorganization (the “Surviving Corporation”); (b) the individuals who were members of the Board (providedimmediately prior to the execution of the agreement providing for such consolidation, however, that if the appointment merger or election (or nomination for election) of any new Board member was approved or recommended by a majority vote reorganization constitute at least 50% of the members of the Incumbent Board then still in office, such new member shall be considered as a member board of directors of the Incumbent Board)Surviving Corporation, or a corporation directly or indirectly beneficially owning a majority of the voting securities of the Surviving Corporation; and (c) no person (other than (1) the Company, (2) any subsidiary of the Company, (3) any employee benefit plan (or any trust forming a part thereof) maintained by the Company, the Surviving Corporation or any subsidiary, or (iii4) the stockholders of the Company approve a any person who, immediately prior to such consolidation, merger or consolidation of the Company with any other corporationreorganization, other beneficially owned more than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 8050% of the total combined voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsthen outstanding voting securities) beneficially owns more than 50% of the combined voting power of the Surviving Corporation’s then outstanding voting securities.

Appears in 1 contract

Samples: Restricted Stock Award Agreement (Hudson Highland Group Inc)

Change in Control. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if if: (i) any “person” person (as such term is used defined in Sections 13(d) and 14(dSection 3(a)(9) of the Securities Exchange Act of 1934, as amended from time to time (the “Exchange Act”), other than and as used in Sections 13(d) and 14(d) thereof, including any “group” as defined in Section 13(d)(3) thereof (a trustee or other fiduciary holding securities under an “Person”), but excluding the Company, any majority owned subsidiary of the Company (a “Subsidiary”), and any employee benefit plan sponsored or maintained by the Company or any Subsidiary (including any trustee of such plan acting as trustee), becomes the beneficial owner of shares of the Company or a corporation owned directly or indirectly by having at least 50% of the stockholders total number of votes that may be cast for the election of directors of the Company (the “Voting Shares”) provided, however, that such an event shall not constitute a Change in substantially Control if the same proportions as their ownership acquiring Person has entered into an agreement with the Company approved by the Board which materially restricts the right of stock such Person to direct or influence the management or policies of the Company; (ii) the shareholders of the Company shall approve, and there shall have been consummated, any merger or other business combination of the Company, is sale of the Company’s assets or becomes combination of the foregoing transactions (a beneficial owner” (as defined in Rule 13d-3 under Transaction”) other than a Transaction involving only the Exchange Act)Company and one or more of its Subsidiaries, directly or indirectly, of securities a Transaction immediately following which the shareholders of the Company representing 20% or more immediately prior to the Transaction continue to have a majority of the total voting power represented by in the Company’s then outstanding Voting Securitiesresulting entity; or (iii) within any 24-month period beginning on or after , (ii) individuals the persons who on the date of this Agreement are were members of the Board on or immediately before the beginning of such period (the “Incumbent BoardDirectors”) shall cease (for any reason other than death) to constitute at least a majority of the members of the Board (provided, however, that if or the appointment or election (or nomination for election) board of directors of any new successor to the Company, provided that any director who was not a director as of , , shall be deemed to be an Incumbent Director if such director was elected to the Board member was approved by, or recommended by on the recommendation of or with the approval of, at least a majority vote of the members of the directors who then qualified as Incumbent Board then still in officeDirectors, such new member shall be considered as a member of the Incumbent Board), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding actually or by being converted into Voting Securities prior operation of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assetsthis definition.

Appears in 1 contract

Samples: Restricted Share Agreement (Knoll Inc)

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