employment agreement, and any and all options, rights or awards granted in conjunction with the MIP (other than performance awards) would immediately vest and a pro rata portion (as
defined in the employment agreements) of each performance award would remain outstanding until the end of the applicable performance period (or, if earlier, until the occurrence of a change in control) and would vest or not based on the actual
performance for the performance period or, if applicable, upon the change in control.
Payments Made Upon Termination Without Good Cause
If the employer terminates the employees employment for any reason other than for good cause, then such employee would be
entitled to his base salary, bonus and other compensation and benefits through the actual expiration date of the remaining term of the employment agreement, and any and all options, rights or awards granted in conjunction with the MIP (other than
performance awards) would immediately vest and a pro rata portion of each performance award would remain outstanding until the end of the applicable performance period (or, if earlier, until the occurrence of a change in control) and
would vest or not based on the actual performance for the performance period or, if applicable, upon the change in control.
Payments Made Upon a Change in Control
If a change in control of the Company occurs after the Effective Date, then any and all options, rights or awards to employee
in conjunction with the MIP would be deemed to have vested immediately prior to such change in control; provided that, with respect to the immediate vesting of any and all performance awards, such awards would immediately vest if and to the extent
determined by the Board at the time of grant and set forth in the applicable award agreement between employee and employer.
For purposes of the employment agreements of Messrs. Crisp, Cooper and Macek, and the MIP, a change in control
means:
(i) Any Person, other than a Significant Shareholder, becomes the beneficial owner (as defined in
Rule 13d-3
of the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the total combined voting power represented by the Companys then
outstanding voting securities; or
(ii) The sale or other disposition of all or substantially all of the assets of the
Company to any Person, other than a Significant Shareholder;
provided, however, that no transaction will constitute a
Change in Control unless it constitutes a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of its assets, in each case within the meaning of Section 409A of the Code and the Treasury
regulations promulgated thereunder.
A Significant Shareholder means (i) any shareholder of the Company
as of the Effective Date who, together with its Affiliates, beneficially owns (as defined in Rule
13d-3
of the Exchange Act) as of the Effective Date five percent (5%) or more of the Companys
outstanding voting securities and (ii) with respect to any shareholder described in clause (i) that is an investment fund, any other investment fund managed by the same or an affiliated investment manager.
In the event that it shall be determined that any payment by the Company to or for the benefit of the executive officers would
be subject to the excise tax imposed by Section 4999 of the Code, or any successor provision thereto, by reason of being considered contingent on a change in ownership or control of the Company, within the meaning of
Section 280G of the Code, or any successor provision thereto, or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being
hereafter collectively referred to as the Excise Tax), then the executive officer shall be entitled to receive an additional payment or payments, or
gross-up
payment, under his employment agreement
or change in control agreement. The
gross-up
payment shall be in an amount such that
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