WCN » Topics » Payments on Change in Control

These excerpts taken from the WCN 10-Q filed May 8, 2009.
Payments on Change in Control.  Notwithstanding any provision in this Agreement to the contrary, a Change in Control (as defined below) that constitutes a “change in control” of the Company (within the meaning of Section 409A of the Code and the Department of Treasury regulations and other guidance promulgated thereunder) shall be deemed a termination of the Employee without Cause, and, in lieu of any benefits payable to the Employee under Section 7.2, 7.3 or 7.4, the Employee shall be entitled to receive and the Company agrees to pay to the Employee the same amount determined under Section 7.2 that is payable to the Employee on a termination without Cause that constitutes a Separation from Service provided, however, that such amount shall be payable in a lump sum on the date of such Change in Control (which shall be deemed the Employee’s Date of Termination) and not in installments as provided in Section 7.2.  In addition, on a Change in Control, all of the Employee’s outstanding but unvested options and rights relating to capital stock of the Company shall immediately vest and become exercisable, the exercisability of any such options and rights shall be extended to the earlier of (A) the expiration of the term of such options or rights or (B) the first anniversary of the date of such Change in Control, and all RSUs and shares of the Company’s restricted stock issued to the Employee shall immediately vest and become unrestricted and freely transferable.  For the avoidance of doubt, upon payment to the Employee of the benefits provided by this paragraph of this Section 10.1, the Employee shall no longer be entitled to any benefits otherwise payable to the Employee under Section 7.2, 7.3 or 7.4 of this Agreement regardless of the Employee’s termination of employment with the Company.
 
After a Change in Control, if any previously outstanding option or right (the “Terminated Option”) relating to the Company’s capital stock does not remain outstanding, the successor to the Company or its then Parent (as defined below) shall either:
 
 
(a)
Issue an option, warrant or right, as appropriate (the “Successor Option”), to purchase common stock of such successor or Parent in an amount such that on exercise of the Successor Option the Employee would receive the same number of shares of the successor’s/Parent’s common stock as the Employee would have received had the number of shares of Company common stock subject to the Terminated Option been realized by the Employee immediately prior to the transaction resulting in the Change in Control and the Employee received shares of such successor/Parent in such transaction.  The aggregate exercise price for all of the shares covered by such Successor Option shall equal the aggregate exercise price of the Terminated Option; or
 
 
 
Employment Agreement: SCOTT SCHREIBER
Page 7

 
 
(b)
Pay the Employee a bonus within ten (10) days after the consummation of the Change in Control in an amount agreed to by the Employee and the Company.  Such amount shall be at least equivalent on an after-tax basis to the net after-tax gain that the Employee would have realized if the Employee had been issued a Successor Option under clause 10.1(a) above and had immediately exercised, or otherwise received the stock subject to, such Successor Option and sold the underlying stock, taking into account the different tax rates that apply to such bonus and to such gain, and such amount shall also reflect other differences to the Employee between receiving a bonus under this clause 10.1(b) and receiving a Successor Option under clause 10.1(a) above.
 
10.2          
Payments on Change in Control.  Notwithstanding any provision in this Agreement to the contrary, a Change in Control (as defined below) that constitutes a “change in control” of the Company (within the meaning of Section 409A of the Code and the Department of Treasury regulations and other guidance promulgated thereunder) shall be deemed a termination of the Employee without Cause, and, in lieu of any benefits payable to the Employee under Section 7.2, 7.3 or 7.4, the Employee shall be entitled to receive and the Company agrees to pay to the Employee the same amount determined under Section 7.2 that is payable to the Employee on a termination without Cause that constitutes a Separation from Service provided, however, that such amount shall be payable in a lump sum on the date of such Change in Control (which shall be deemed the Employee’s Date of Termination) and not in installments as provided in Section 7.2.  In addition, on a Change in Control, all of the Employee’s outstanding but unvested options and rights relating to capital stock of the Company shall immediately vest and become exercisable, the exercisability of any such options and rights shall be extended to the earlier of (A) the expiration of the term of such options or rights or (B) the first anniversary of the date of such Change in Control, and all RSUs and shares of the Company’s restricted stock issued to the Employee shall immediately vest and become unrestricted and freely transferable.  For the avoidance of doubt, upon payment to the Employee of the benefits provided by this paragraph of this Section 10.1, the Employee shall no longer be entitled to any benefits otherwise payable to the Employee under Section 7.2, 7.3 or 7.4 of this Agreement regardless of the Employee’s termination of employment with the Company.
 
After a Change in Control, if any previously outstanding option or right (the “Terminated Option”) relating to the Company’s capital stock does not remain outstanding, the successor to the Company or its then Parent (as defined below) shall either:
 
 
(a)
Issue an option, warrant or right, as appropriate (the “Successor Option”), to purchase common stock of such successor or Parent in an amount such that on exercise of the Successor Option the Employee would receive the same number of shares of the successor’s/Parent’s common stock as the Employee would have received had the number of shares of Company common stock subject to the Terminated Option been realized by the Employee immediately prior to the transaction resulting in the Change in Control and the Employee received shares of such successor/Parent in such transaction.  The aggregate exercise price for all of the shares covered by such Successor Option shall equal the aggregate exercise price of the Terminated Option; or
 
 
 
Employment Agreement: RICK WOJAHN
Page 7

 
 
(b)
Pay the Employee a bonus within ten (10) days after the consummation of the Change in Control in an amount agreed to by the Employee and the Company.  Such amount shall be at least equivalent on an after-tax basis to the net after-tax gain that the Employee would have realized if the Employee had been issued a Successor Option under clause 10.1(a) above and had immediately exercised, or otherwise received the stock subject to, such Successor Option and sold the underlying stock, taking into account the different tax rates that apply to such bonus and to such gain, and such amount shall also reflect other differences to the Employee between receiving a bonus under this clause 10.1(b) and receiving a Successor Option under clause 10.1(a) above.
 
10.2          
This excerpt taken from the WCN 10-Q filed Apr 23, 2008.
Payments on Change in Control.  Notwithstanding any provision in this Agreement to the contrary, unless the Employee elects in writing to waive this provision, a Change in Control (as defined below) that constitutes a “change in control” of the Company (within the meaning of Section 409A of the Code and the Department of Treasury regulations and other guidance promulgated thereunder) shall be deemed a termination of the Employee without Cause, and, in lieu of any benefits payable to the Employee under Section 7.2, 7.3, 7.4 or 8, the Employee shall be entitled to receive and the Company agrees to pay to the Employee the same amount determined under Section 7.2 that is payable to the Employee on a termination without Cause that constitutes a Separation from Service provided, however, that such amount shall be payable in a lump sum on the date of such Change in Control (which shall be deemed the Employee’s Date of Termination) and not in installments as provided in Section 7.2.  In addition, on a Change in Control, all of the Employee’s outstanding but unvested options and rights relating to capital stock of the Company shall immediately vest and become exercisable, the exercisability of any such options and rights shall be extended to the earlier of (A) the expiration of the term of such options or rights or (B) the first anniversary of the date of such Change in Control, and all RSUs and shares of the Company’s restricted stock issued to the Employee shall immediately vest and become unrestricted and freely transferable.  For the avoidance of doubt, upon payment to the Employee of the benefits provided by this paragraph of this Section 10.1, the Employee shall no longer be entitled to any benefits otherwise payable to the Employee under Section 7.2, 7.3, 7.4 or 8 of this Agreement regardless of the Employee’s termination of employment with the Company.
 
After a Change in Control, if any previously outstanding option or right (the “Terminated Option”) relating to the Company’s capital stock does not remain outstanding, the successor to the Company or its then Parent (as defined below) shall either:
 
 
(a)
Issue an option, warrant or right, as appropriate (the “Successor Option”), to purchase common stock of such successor or Parent in an amount such that on exercise of the Successor Option the Employee would receive the same number of shares of the successor’s/Parent’s common stock as the Employee would have received had the number of shares of Company common stock subject to the Terminated Option been realized by the Employee immediately prior to the transaction resulting in the Change in Control and the Employee received shares of such successor/Parent in such transaction.  The aggregate exercise price for all of the shares covered by such Successor Option shall equal the aggregate exercise price of the Terminated Option; or
 
 
(b)
Pay the Employee a bonus within ten (10) days after the consummation of the Change in Control in an amount agreed to by the Employee and the Company.  Such amount shall be at least equivalent on an after-tax basis to the net after-tax gain that the Employee would have realized if the Employee had been issued a Successor Option under clause 10.1(a) above and had immediately exercised, or otherwise received the stock subject to, such Successor Option and sold the underlying stock, taking into account the different tax rates that apply to such bonus and to such gain, and such amount shall also reflect other differences to the Employee between receiving a bonus under this clause 10.1(b) and receiving a Successor Option under clause 10.1(a) above.
 
 
Employment Agreement: P. Shea
 
7

 
 
10.2          
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