Sale Bonus. If (i) the Company has consummated a Sale Transaction (as defined below) within eighteen (18) months after the Effective Date, (ii) the Sale Proceeds (as defined below) are in excess of $45,000,000, (iii) the Executive remains actively employed with the Company through the consummation of the Sale Transaction, (iv) the Executive is otherwise in compliance with the terms of this Agreement as may be amended at any time in the future, and (v) the Executive complies with, and uses commercially reasonable efforts to take such actions as are necessary to cause the Company to comply with, the terms and conditions of agreements entered into by the Executive or the Company effecting or otherwise relating to the Sale Transaction, the Executive will be eligible to receive a sale bonus in connection with such Sale Transaction equal to the product of 0.025 and the Sale Proceeds; provided, that for the purposes of such calculation the amount of Sale Proceeds shall be deemed to not exceed $200,000,000 (the “Sale Bonus”). The Sale Bonus shall be subject to any applicable tax and payroll deductions required by law. The benefit described in this Section 3(c) shall be payable in a single lump sum as soon as practicable, but not more than ten (10) business days following the consummation of the Sale Transaction (or receipt of Sale Proceeds which are not Contingent Sale Proceeds (as defined below) sufficient to trigger the Company’s obligation to pay a Sale Bonus); provided that any Sale Bonus amount the Executive is entitled to receive pursuant to this Section 3(c), shall not be payable to the Executive until such time as the Company’s stockholders have received payment with respect to their equity interests pursuant to the terms of the agreement to engage in the Sale Transaction. In the event that: (x) any portion of the Sale Proceeds is required by the terms of the Sale Transaction to be placed into escrow, retained or held back by the buyer, or the payment thereof is otherwise subject to contingencies based upon the occurrence of future events (“Contingent Sale Proceeds”), the Company will not pay the Executive the portion of the Sale Bonus attributable to the Contingent Sale Proceeds until such time as, and only to the extent that, the Contingent Sale Proceeds are released from escrow, no longer are retained or held back by the buyer, or otherwise no longer are subject to payment contingencies, as the case may be (“Released Sale Proceeds”); and (y) the aggregate amount of Sale Proceeds in a Sale Transaction that do not constitute Contingent Sale Proceeds is insufficient to trigger the Company’s obligation to pay a Sale Bonus, then the Sale Bonus shall not be paid unless and until the Sale Proceeds which are not Contingent Sale Proceeds are sufficient to trigger the Company’s obligation to pay a Sale Bonus (e.g., because sufficient Contingent Sale Proceeds have been released from escrow, no longer are retained or held back by the buyer, or no longer are subject to payment contingencies). In the event that the benefits described in this Section 3(c) constitute “deferred compensation” payable to a “key employee” of a publicly-traded corporation pursuant to Section 409A of the Internal Revenue Code of 1986, as amended, on account of separation from service, such benefit shall not be payable until six (6) months following Executive’s separation from service and shall not accrue interest during such six (6) month period. As used in this Agreement:
Appears in 1 contract
Sale Bonus. If If: (ia) the Company has consummated executes an agreement to engage in a Sale Transaction (as defined belowhereinafter defined) within eighteen (18) months after the Effective Dateby December 31, 2007, (iib) the such Sale Proceeds (as defined below) are in excess of $45,000,000Transaction has been consummated by December 31, 2008, (iiic) the Executive remains you remain actively employed (not on a leave of absence, other than an FMLA leave of absence) with the Company or its Affiliates through the consummation of the Sale Transaction, (ivd) the Executive is otherwise you are in compliance with the terms of this Agreement and any other agreement between you and the Company, (e) you agree to treat the existence of the Agreement as may be amended at any time well as all of its terms as “Confidential” as defined further in the futureAgreement, (f) you comply with and (v) the Executive complies with, and uses commercially reasonable use your best efforts to take such actions as are may be necessary to cause the Company to comply with, with the terms and conditions of any agreements entered into by the Executive or the Company effecting or otherwise relating to the Sale TransactionTransaction as may be communicated to you from time to time and consistent with the scope of your duties with the Company and (g) you sign a general release of claims against the Company and its Affiliates, in a form reasonably consistent with the Executive form attached hereto as Exhibit A, you will be eligible to receive a sale bonus in connection with such the Sale Transaction equal to in the product of 0.025 and the Sale Proceeds; provided, that for the purposes of such calculation the amount of Sale Proceeds shall be deemed to not exceed $200,000,000 following amounts (the “Sale Bonus”) based on the Sale Proceeds (as hereinafter defined). If the Sale Proceeds equal or exceed $2,000,000,000, then the Sale Bonus amount will equal $100,000. If the Sale Proceeds are $1,800,000,000, then the Sales Bonus amount will be $50,000 and if the Sale Proceeds are at least 1,900,000,000, then the Sales Bonus will be $75,000. In the event that the Sale Proceeds actually received fall between the amounts reflected above, the Sale Bonus shall be calculated by interpolating on a straight line basis to the next highest Sale Bonus amount, but in no event shall the Sale Bonus be in excess of $100,000. The Sale Bonus shall be subject to any reduced by applicable federal, state and local tax and payroll deductions withholding required by law. If your employment is terminated by the Company without Cause (as hereinafter defined) prior to the consummation of the Sale Transaction, you will be paid the Sale Bonus as provided in the following paragraph. If your employment is terminated by the Company for Cause prior to the consummation of the Sale Transaction, you will be ineligible to receive any portion of the Sale Bonus. The benefit described in this Section 3(c) 1 shall be payable in a single lump sum as soon as practicable, but not more than ten (10) business days following the consummation of the Sale Transaction (or receipt of Sale Proceeds which are not Contingent Sale Proceeds (as defined belowhereinafter defined) sufficient to trigger the Company’s obligation to pay a Sale Bonus); provided that any Sale Bonus amount the Executive is you are entitled to receive pursuant to this Section 3(c), shall not be payable to the Executive you until such time as the Company’s stockholders have received payment with respect to their equity interests pursuant to the terms of the agreement to engage in the Sale TransactionTransaction . In the event that: (x) any portion of the Sale Proceeds is required by the terms of the Sale Transaction to be placed into escrow, retained or held back by the buyer, or the payment thereof is otherwise subject to contingencies based upon the occurrence of future events (“Contingent Sale Proceeds”), the Company will not pay the Executive the portion of the Sale Bonus attributable to the Contingent Sale Proceeds until such time as, and only to the extent that, the Contingent Sale Proceeds are released from escrow, no longer are retained or held back by the buyer, or otherwise no longer are subject to payment contingencies, as the case may be (“Released Sale Proceeds”); and (y) the aggregate amount of Sale Proceeds in a Sale Transaction that do not constitute Contingent Sale Proceeds is insufficient to trigger the Company’s obligation to pay a Sale Bonus, then the Sale Bonus shall not be paid unless and until the Sale Proceeds which are not Contingent Sale Proceeds are sufficient to trigger the Company’s obligation to pay a Sale Bonus (e.g., because sufficient Contingent Sale Proceeds have been released from escrow, no longer are retained or held back by the buyer, or no longer are subject to payment contingencies). In the event that the benefits described in this Section 3(c) constitute “deferred compensation” payable to a “key employee” of a publicly-traded corporation pursuant to Section 409A of the Internal Revenue Code of 1986, as amended, on account of separation from service, such benefit shall not be payable until six (6) months following Executive’s separation from service and shall not accrue interest during such six (6) month period. As used in this Agreement:
Appears in 1 contract
Samples: Suncom Wireless Holdings, Inc.
Sale Bonus. Employer shall, or shall cause Parent to, pay to Executive a cash bonus (“Sale Bonus”) upon the Sale of the Company, as of the date of and in connection with the closing of a Sale of the Company, equal to 2.5% of the Equity Value of the Company to the extent such Equity Value exceeds $589,600,000; provided that such Sale Bonus shall in no circumstances exceed $1,100,000; and provided further that Executive remains an employee of the Company on such date. Set forth on Exhibit A is an example of the calculation of a hypothetical Sale Bonus. Notwithstanding the foregoing, if Executive’s employment with the Company is terminated by the Company without Cause or due to Executive’s resignation for Good Reason within three (3) months prior to the execution of a definitive agreement that results in the Sale of the Company contemplated by such Agreement, then the Company shall pay Executive the Sale Bonus as if Executive were still employed by the Company on the date of the Sale of the Company. If any payment that Executive is eligible to receive as a Sale Bonus, when combined with any other payment or benefit Executive is eligible to receive as a result of a Sale of the Company that is a “change in control” of the Company (either solely as a result of such change in control or in connection with any other event) or the termination of Executive’s employment with any the Company, would (i) constitute a “parachute payment” within the Company has consummated a meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (“Excise Tax”), then such Sale Transaction Bonus shall be reduced to the Reduced Amount (as defined below) within eighteen (18) months after ). A payment shall not be considered a parachute payment for purposes of this paragraph if such payment is approved by the Effective Date, (ii) the Sale Proceeds (as defined below) are in excess equity holders of $45,000,000, (iii) the Executive remains actively employed with the Company through the consummation in accordance with Section 280G(b)(5) of the Sale Transaction, Code and the regulations thereunder (iv) the Executive is otherwise in compliance with the terms of this Agreement as may be amended at any time in the future“Approval Exemption”), and (v) at the Executive complies withtime of such approval, and uses commercially no stock or equity interests of the Company is readily tradable on an established securities market or otherwise. The Company will use its reasonable efforts to take such actions as are necessary cause any potential parachute payments to cause be disclosed to and submitted for approval by the equity holders of the Company to comply with, in accordance with the terms and conditions of agreements entered into by the Executive or the Company effecting or otherwise relating to the Sale Transaction, the Executive will be eligible to receive a sale bonus in connection with such Sale Transaction equal to the product of 0.025 and the Sale Proceeds; provided, that for the purposes of such calculation the amount of Sale Proceeds Approval Exemption. The “Reduced Amount” shall be deemed to not exceed $200,000,000 (the “Sale Bonus”). The Sale Bonus shall be subject to any applicable tax and payroll deductions required by law. The benefit described in this Section 3(c) shall be payable in a single lump sum as soon as practicable, but not more than ten (10) business days following the consummation of the Sale Transaction (or receipt of Sale Proceeds which are not Contingent Sale Proceeds (as defined below) sufficient to trigger the Company’s obligation to pay a Sale Bonus); provided that any Sale Bonus amount the Executive is entitled to receive pursuant to this Section 3(c), shall not be payable to the Executive until such time as the Company’s stockholders have received payment with respect to their equity interests pursuant to the terms of the agreement to engage in the Sale Transaction. In the event that: (x) any largest portion of the Sale Proceeds is required by the terms of the Sale Transaction to be placed into escrow, retained or held back by the buyer, or the payment thereof is otherwise subject to contingencies based upon the occurrence of future events (“Contingent Sale Proceeds”), the Company will not pay the Executive the Bonus that would result in no portion of the Sale Bonus attributable being subject to the Contingent Sale Proceeds until such time as, and only to the extent that, the Contingent Sale Proceeds are released from escrow, no longer are retained or held back by the buyer, or otherwise no longer are subject to payment contingencies, as the case may be (“Released Sale Proceeds”); and (y) the aggregate amount of Sale Proceeds in a Sale Transaction that do not constitute Contingent Sale Proceeds is insufficient to trigger the Company’s obligation to pay a Sale Bonus, then the Sale Bonus shall not be paid unless and until the Sale Proceeds which are not Contingent Sale Proceeds are sufficient to trigger the Company’s obligation to pay a Sale Bonus (e.g., because sufficient Contingent Sale Proceeds have been released from escrow, no longer are retained or held back by the buyer, or no longer are subject to payment contingencies). In the event that the benefits described in this Section 3(c) constitute “deferred compensation” payable to a “key employee” of a publicly-traded corporation pursuant to Section 409A of the Internal Revenue Code of 1986, as amended, on account of separation from service, such benefit shall not be payable until six (6) months following Executive’s separation from service and shall not accrue interest during such six (6) month period. As used in this Agreement:Excise Tax.
Appears in 1 contract
Samples: Executive Employment Agreement (Aspect Software Group Holdings Ltd.)
Sale Bonus. If (i) the Company has consummated a Sale Transaction (as defined below) within eighteen (18) months after the Effective Date, (ii) the Sale Proceeds (as defined below) are in excess of $45,000,000, (iii) the Executive remains actively employed with the Company through the consummation of the Sale Transaction, (iv) the Executive is otherwise in compliance with the terms of this Agreement as may be amended at any time in the future, and (v) the Executive complies with, and uses commercially reasonable efforts to take such actions as are necessary to cause the Company to comply with, the terms and conditions of agreements entered into by the Executive or the Company effecting or otherwise relating to the Sale Transaction, the Executive You will be eligible to receive a sale bonus in connection with such a Sale Transaction (as hereinafter defined) equal to [One Hundred Seven Thousand One Hundred Forty-Three Dollars ($107,143)] OR [Fifty Three Thousand Five Hundred Seventy-One Dollars ($53,571)] subject to the product of 0.025 and the Sale Proceeds; provided, that for the purposes of such calculation the amount of Sale Proceeds shall be deemed to not exceed $200,000,000 conditions set forth in this Agreement (the “Sale Bonus”). You will receive the Sale Bonus if: (a) the Company executes an agreement to engage in a Sale Transaction by December 31, 2007; (b) such Sale Transaction has been consummated by December 31, 2008; (c) the Company enters into a Sale Transaction and the Sale Proceeds allocable to the sale of the PR Business (as defined below) equals or exceeds Five Hundred and Fifty Million Dollars ($550,000,000); (d) you remain actively employed (not on a leave of absence, other than an FMLA leave of absence) with the Company or its Affiliates through the consummation of the Sale Transaction; (e) you are in compliance with this Agreement and any other agreement between you and the Company; (f) you agree to treat the existence of the Agreement as well as all of its terms as “Confidential” as defined further in the Agreement; (g) you comply with and use your best efforts to take such actions as may be necessary to comply with the terms of any agreements relating to the Sale Transaction as may be communicated to you from time to time and consistent with the scope of your duties with the Company and (h) you sign a general release of claims against the Company and its Affiliates, in a form reasonably consistent with the form attached hereto as Exhibit A. The determination of the amount of Sale Proceeds allocable to the PR Business shall be made by the Company’s Board of Directors (the “Board”) in its sole discretion. The Sale Bonus shall be subject to any reduced by applicable federal, state and local tax and payroll deductions withholding required by law. If your employment is terminated by the Company without Cause (as hereinafter defined) prior to the consummation of the Sale Transaction, you will be paid the Sale Bonus as provided in the following paragraph. If your employment is terminated by the Company for Cause prior to the consummation of the Sale Transaction, you will be ineligible to receive any portion of the Sale Bonus. The benefit described in this Section 3(c) 1 shall be payable in a single lump sum as soon as practicable, but not more than ten (10) business days following the consummation of the Sale Transaction (or receipt of Sale Proceeds which are not Contingent Sale Proceeds (as defined below) sufficient to trigger the Company’s obligation to pay a Sale Bonus)Transaction; provided that any Sale Bonus amount the Executive is you are entitled to receive pursuant to this Section 3(c)1, shall not be payable to the Executive you until such time as the CompanySunCom’s stockholders have received payment with respect to their equity interests pursuant to the terms of the agreement to engage in the Sale Transaction. .. In the event that: (x) that any portion of the Sale Proceeds is required by the terms of the Sale Transaction to be placed into escrow, retained or held back by the buyer, or the payment thereof is otherwise subject to contingencies based upon the occurrence of future events (“Contingent Sale Proceeds”), the Company will not pay the Executive the portion of the Sale Bonus attributable to the Contingent Sale Proceeds until such time as, and only to the extent that, the Contingent Sale Proceeds are released from escrow, no longer are retained or held back by the buyer, or otherwise no longer are subject to payment contingencies, as the case may be (“Released Sale Proceeds”); and (y) the aggregate amount of Sale Proceeds in a Sale Transaction that do not constitute Contingent Sale Proceeds is insufficient to trigger the Company’s obligation to pay a Sale Bonus, then the Sale Bonus shall not be paid in accordance with this Section unless and until the Sale Proceeds which are not Contingent Sale Proceeds are sufficient allocable to trigger the Company’s obligation to pay a Sale Bonus sale of the PR Business equal or exceed $550,000,000 (e.g., because sufficient Contingent Sale Proceeds have been released from escrow, no longer are retained or held back by the buyer, or no longer are subject to payment contingencies). In the event that the benefits described in this Section 3(c) constitute “deferred compensation” payable to a “key employee” of a publicly-traded corporation pursuant to Section 409A of the Internal Revenue Code of 1986, as amended, on account of separation from service, such benefit shall not be payable until six (6) months following Executive’s separation from service and shall not accrue interest during such six (6) month period. As used in this Agreement:.
Appears in 1 contract
Samples: Suncom Wireless Holdings, Inc.
