Exhibits 10.20

 

EXECUTION COPY

 

EMPLOYMENT AGREEMENT

 

EMPLOYMENT AGREEMENT, made and entered into as of October 14, 2003 (“the Execution Date”) by and between PRIMEDIA Inc., a Delaware corporation (together with its successors and assigns permitted under this Agreement, the “Company”), and Kelly Conlin (the “Executive”).

 

W I T N E S S E T H :

 

WHEREAS, the Company desires to employ the Executive and to enter into an agreement embodying the terms of such employment (this “Agreement”), and the Executive desires to enter into this Agreement and to accept such employment, subject to the terms and provisions of this Agreement;

 

NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable consideration, the receipt of which is mutually acknowledged, the Company and the Executive (individually a “Party” and together the “Parties”) agree as follows:

 

1.                                        DEFINITIONS.

 

(a)  “Affiliate” of a person or other entity shall mean a person or other entity that directly or indirectly controls, is controlled by, or is under common control with the person or other entity specified.

 

(b)  “Annual Bonus” shall mean the annual cash bonus, if any, payable to the Executive in respect of any given calendar year under the applicable Company annual incentive plan pursuant to Section 5 of this Agreement.

 

(c)  “Base Salary” shall mean the salary provided for in Section 4 below or any increased salary granted to the Executive pursuant to Section 4 of this Agreement.

 

(d)  “Board” shall mean the Board of Directors of the Company.

 

(e)  “Cause” shall mean:

 

(i)            the Executive is convicted of (x) a misdemeanor involving moral turpitude or involving fraud against the Company or (y) a felony; or

 

(ii)           the Executive is determined to be guilty of willful gross neglect or willful gross misconduct in carrying out his duties under this Agreement (by action or inaction) (including, without limitation, a breach of any policies of the Company, including policies relating to securities trading, sexual harassment, confidentiality, and drug and alcohol use), resulting, in any such case, in material economic harm to the Company, unless the Executive reasonably believed in good faith that such action or inaction was in the best interests of the Company.

 

(f)  “Constructive Termination” shall mean termination by the Executive of his employment, at his initiative, following the occurrence of any of the following events without his consent:

 

(i)            a reduction in (x) the Executive’s Base Salary to an amount below $900,000 or (y) the termination or material reduction of any material employee benefit or perquisite enjoyed by the Executive (other than, with respect to either of the foregoing, as part of an across-the-board reduction applicable to all senior corporate executive officers of the Company (or as otherwise may be required by law, in the event a material benefit or perquisite is prohibited by law to be provided to senior executive officers of the Company);

 

 

(ii)           the failure to elect or reelect the Executive to any of the positions described in Section 3 of this Agreement or the removal of him from any such position;

 

(iii)          (x) a material diminution in the Executive’s duties and responsibilities as described in Section 3 of this Agreement or (y) the assignment to the Executive of duties or responsibilities which are materially inconsistent with his duties and responsibilities as described in Section 3 of this Agreement or which materially impair the Executive’s ability to function as the Chief Executive Officer of the Company; or

 

(iv)          the failure of the Company to obtain the assumption in writing of its obligation to perform this Agreement by any successor to all or substantially all of the assets of the Company within 30 calendar days after the closing of a merger, consolidation, sale or similar transaction.

 

Notwithstanding the foregoing, following written notice from the Executive of any of the events described in (i) through (iv) above, the Company shall have thirty (30) calendar days in which to cure the alleged conduct.  If the Company fails to cure, the Executive’s termination shall become effective on the 31st calendar day following such written notice.

 

(g)  “Disability” shall mean the Executive’s failure, due to physical or mental incapacity, to substantially perform his duties and responsibilities under this Agreement for a period that is reasonably expected to continue for at least six (6) consecutive months, as determined by a medical doctor selected by the Company and the Executive.  If the Parties cannot agree on a medical doctor, each Party shall select a medical doctor and the two doctors shall select a third who shall be the approved medical doctor for this purpose.

 

(h)  “Effective Date” shall be October 21, 2003.

 

(i)  “Execution Date” shall mean the date on which this Agreement is finally executed by both Parties

 

(j)  “Stock” shall mean the common stock of the Company.

 

(k)  “Term of Employment” shall mean the period specified in Section 2 below (including any extension as provided therein) during which the Executive is employed pursuant to this Agreement.

 

(l)  “Voting Stock” shall mean capital stock of any class or classes having general voting power under ordinary circumstances, in the absence of contingencies, to elect the directors of a corporation.

 

2.                                        TERM OF EMPLOYMENT.

 

The Term of Employment shall begin on the Effective Date, and shall extend until the fourth anniversary of the Effective Date, with automatic one-year renewals commencing on such fourth anniversary and on each anniversary thereafter unless and until either Party notifies the other at least three (3) months before the scheduled renewal date that the Term of Employment is not to be renewed.  Notwithstanding the foregoing, the Term of Employment may be earlier terminated by either Party in accordance with the provisions of Section 9 of this Agreement.

 

3.                                        POSITION, DUTIES AND RESPONSIBILITIES.

 

(a)  Commencing on the Effective Date and continuing through the end of the Term of Employment, the Executive shall be employed as the Chief Executive Officer of the Company and shall have such duties and authority as shall be determined from time to time by the Board, which shall be consistent with the duties and authority of chief executive officers of public companies of similar size and

 

2

 

type, and such other duties commensurate with the Executive’s positions, all as shall be reasonably determined by the Board.  If requested, the Executive shall also (i) serve as a member of the Board (and any committees thereof) and other boards of directors of any subsidiaries of the Company and (ii) hold such corporate officer titles and positions of the Company and any of its subsidiaries as may be selected by the Board, in any such case without additional compensation therefor.  In connection with the foregoing, the Company shall use its commercially reasonable best efforts to cause the Executive to be appointed as a member of the Board as soon practicable after the Effective Date.  The Executive, in carrying out his duties under this Agreement, shall report directly to the Board.  During the Term of Employment, the Executive shall devote substantially all of his business time and attention to the performance of his duties hereunder and shall use his reasonable best efforts, skills and abilities to promote its interests.

 

(b)  Nothing herein shall preclude the Executive from (i) serving on the boards of directors (or advisory committees) of a reasonable number of other corporations or entities with the express written consent of the Board (which consent shall not be unreasonably withheld), only one of which may be a public company, (ii) serving on the boards of a reasonable number of trade associations and/or charitable organizations, (iii) engaging in a reasonable number of charitable activities and community affairs, and (iv) managing his personal investments and affairs, provided that such activities set forth in this Section 3(b) do not conflict or materially interfere with the effective discharge of his duties and responsibilities under Section 3(a) above.

 

4.                                        BASE SALARY.

 

During the Term of Employment, the Executive shall be paid an annualized gross Base Salary, payable in accordance with the regular payroll practices of the Company, of $900,000.  The Base Salary shall be reviewed annually for increase in the discretion of the Board, and any increase (or, in the event of an across-the-board reduction applicable to all senior corporate executive officers of the Company, any decrease in proportion to such reduction) in such amount from time to time shall constitute “Base Salary” for purposes of this Agreement.

 

5.                                        ANNUAL INCENTIVE AWARDS.

 

During the Term of Employment, the Executive shall be eligible to earn an Annual Bonus in respect of each calendar year occurring during the Term of Employment pursuant to the two Executive Incentive Plans covering senior executives of the Company (the “Bonus Plans”), the amount of which shall be based upon a percentage of the Executive’s Base Salary (or such other metric or amount as the Board may establish pursuant to the Bonus Plans), provided that the target Annual Bonus percentage under the Bonus Plans for each calendar year occurring during the Term of Employment shall be equal to at least fifty percent (50%) of the amount of Base Salary the Executive actually earned in the year in respect of which the Annual Bonus, if any, is payable.  Any Annual Bonus shall only be payable upon the achievement by the Company as a whole of certain performance goals to be established in respect of each calendar year by the Board (or a designated committee thereof) after consultation with the Executive, provided that the Executive may receive a greater or lesser Annual Bonus amount as determined by the Board in accordance with achievement of such performance goals and as pursuant to the terms of the Bonus Plans; and provided , further , that the Company acknowledges that any annual bonus program established as described herein will include an opportunity for the Executive to earn one hundred percent (100%) of the Executive’s Base Salary, based upon the achievement of certain performance goals, and that the Company may, but shall not be obligated to, provide an opportunity for the Executive to earn more than 100% of the Executive’s Base Salary as an Annual Bonus. Notwithstanding the foregoing, the Executive shall be entitled to the following: (a) the Executive shall receive an Annual Bonus equal to $100,000 in respect of the balance of calendar year 2003 (the “2003 Bonus”) and (b) with respect to calendar year 2004, the Executive shall earn an Annual Bonus pursuant to the Bonus Plans, the amount of which shall be at least equal to $450,000 (such minimum bonus amount, the “2004 Bonus”).  Notwithstanding the foregoing, and subject to the provisions of Section 9 of this Agreement, in the event

 

3

 

that the Term of Employment is scheduled to terminate prior to December 31 of any given calendar year, the Executive shall only be eligible to earn a pro rata portion of his Annual Bonus amount, based on the number of days during such calendar year in which the Executive is employed hereunder.  All bonuses payable under this Section 5 shall be paid at the same time as annual cash bonuses are paid to other senior corporate executives of the Company pursuant to the applicable Bonus Plans.

 

6.                                        EQUITY AND EQUITY-BASED AWARDS.

 

(a)  Stock Purchase.  The Executive shall invest $250,000 in shares of Stock on the open market within the first 90 days immediately following the Effective Date, to the extent permitted by and pursuant to applicable securities laws, and an additional $250,000 in shares of Stock on the open market at the then market price within the twelve months immediately following the Effective Date, to the extent permitted by and pursuant to applicable securities laws.

 

(b)  Options.  On the Effective Date, the Company shall grant to the Executive an option to purchase 2,000,000 shares of Stock, having a per share exercise price equal to the fair market value per share of Stock on the Execution Date.  Such option shall be granted under the Company’s 1992 Stock Purchase and Option Plan, as amended from time to time (“Stock Incentive Plan”).  This option shall vest with respect to 25% of the shares of Stock subject to such option on October 21, 2004 and on each October 21 thereafter through October 21, 2007.  In the event of a termination without Cause by the Company (other than due to the Executive’s death or Disability) or a termination by the Executive upon the occurrence of a Constructive Termination (in each case in accordance with the terms of this Agreement) (i) prior to October 21, 2005, the option shall become vested with respect to up to 50% of the shares of Stock subject to such option (to the extent not previously vested) and (ii) any then vested (and unexercised) portion of the option shall remain outstanding and exercisable for a period of six months following the date of such termination.  The form of this option award is attached as Exhibit A to this Agreement.

 

(c)  Restricted Stock.  On  the Effective Date, the Company shall grant to the Executive 1,000,000 shares of restricted Stock of the Company (“Restricted Stock”).  Such Restricted Stock shall be granted under the Stock Incentive Plan.  So long as the Executive remains employed hereunder, the Restricted Stock shall vest as to (i) 50% of the shares on  October 21, 2005, (ii) an additional 25% of the shares on October 21, 2006, and (iii) the remaining 25% of the shares on October 21, 2007.  The form of this Restricted Stock Award is attached as Exhibit B to this Agreement.

 

(d)  During the Term of Employment, the Executive shall also be eligible to be considered by the Board (or a designated committee thereof) to receive additional equity-based awards under the Company’s equity-based plans in accordance with the Company’s practices applicable to senior-level executives, at a level commensurate with the Executive’s position with the Company hereunder; provided , however , that nothing herein shall be deemed to be, nor construed as, a commitment, promise or obligation by the Company to make any additional equity or equity-based awards to the Executive (other than those specifically provided for in Sections 6(b) and (c) above).

 

7.                                        EMPLOYEE BENEFIT PROGRAMS.

 

During the Term of Employment, the Executive shall be entitled to participate in any employee pension and welfare benefit plans and programs made available to the Company’s senior executive officer level employees generally, as such plans or programs may be in effect from time to time, including, without limitation, pension, profit sharing, savings and other retirement plans or programs, 401(k), medical, dental, hospitalization, short-term and long-term disability and life insurance plans, accidental death and dismemberment protection, travel accident insurance, and any other pension or retirement plans or programs and any other employee welfare benefit plans or programs that may be sponsored by the Company from time to time, including any plans that supplement the above-listed types of plans or programs, whether funded or unfunded.  The Executive’s participation shall be based on, and

 

4

 

the calculation of all benefits shall be based on, the assumptions that the Executive has met all service-period or other requirements for such participation provided that no such assumptions shall be made as to a tax-qualified plan if such assumption would jeopardize the tax-qualified status of such plan. Notwithstanding anything set forth in this Section 7 or in Section 9 below to the contrary, in the event of any termination of the Executive’s employment hereunder, for any reason and by either party, the Executive shall cease active participation in the Company’s employee stock purchase plan (the “ESPP”), and any amounts deducted by the Company from the Executive’s Base Salary but not yet used by the Company to purchase Stock for the benefit of the Executive shall be promptly returned to the Executive, subject to any provision of the ESPP (as in effect on the date of such termination) to the contrary.

 

8.                                        REIMBURSEMENT OF BUSINESS AND OTHER EXPENSES; PERQUISITES; VACATIONS; RELOCATION EXPENSES.

 

(a)  Business Expenses.  The Executive is authorized to incur reasonable expenses in carrying out his duties and responsibilities under this Agreement and the Company shall promptly reimburse him for all reasonable business expenses incurred in connection with the performance of his duties hereunder, subject to the Executive’s provision of reasonable documentation of such expenses in accordance with the Company’s business expense reimbursement policy.  The Company shall pay all reasonable financial consultant and legal fees and expenses (not to exceed $17,000) incurred by the Executive in connection with the negotiation of the Executive’s employment arrangements with the Company pursuant to this Agreement on and prior to the Execution Date.

 

(b)  Perquisites.  During the Term of Employment, the Executive shall be entitled to tax preparation, financial counseling, first-class air travel and limousine services and, in addition, any other perquisites in effect from time to time for the Company’s senior executives generally.

 

(c)  Vacation.  During the Term of Employment, the Executive shall be entitled to four weeks of paid vacation, to be taken at such time(s) as the Executive and the Board reasonably agrees is appropriate.

 

(d)  Relocation Expenses.

 

(i)            In connection with the Executive’s commencement of employment hereunder, as soon as practicable after the Execution Date, the Company  shall provide the Executive with a furnished  apartment or arrange for alternative temporary lodging in New York, New York (the “Business Residence”), which Business Residence shall be of a size and style that is commensurate with the Executive’s position with the Company hereunder.  The Company also hereby agrees to pay and/or reimburse, as applicable, the Executive for all reasonable costs incurred by the Executive in connection with the maintenance and use of such Business Residence during the period commencing on the Effective Date and ending no later than October 31, 2004 (the “Reimbursement Period”) (unless such period is otherwise extended by the Board pursuant to Section 8(d)(ii) below), for reasonable travel expenses incurred by the Executive in connection with his commute between his current primary residence in the Boston, Massachusetts metropolitan area  and his Business Residence during the Reimbursement Period, subject to the Executive’s provision of reasonable documentation of such expenses in accordance with the Company’s business expense reimbursement policy.

 

(ii)           Notwithstanding the foregoing, (x) the Executive hereby agrees that, during the Term of Employment but in no event later than July 31, 2004, so long as the Executive remains employed hereunder, the Executive shall propose to the Board for its approval (which approval will not be unreasonably withheld) a reasonable plan for the relocation of his Primary Residence (the “Relocation Plan”) and (y) in the event that the Company and the Executive agree on the terms of such Relocation Plan and such plan is agreed upon by the Board and the Executive prior to July 31, 2004, the Parties may amend this Agreement to reflect such other terms that are

 

5

 

consistent with the approved Relocation Plan and to terminate or amend the Company’s obligations under this Section 8(d).  In the event the Parties cannot agree to such Relocation Plan prior to July 31, 2004, the Executive shall become entitled to only those payments and benefits provided under the Company’s traditional relocation policy for senior executive officers, effective as of November 1, 2004 (subject to any extension of the Reimbursement Period as provided in paragraph (i) above).

 

(iii)          To the extent that any payments or benefits provided to or for the benefit of the Executive under Section 8(d)(i) or (ii) result in taxable income to the Executive, the Company shall provide the Executive with an amount equal to any income and other taxes payable by the Executive upon the provision of such payments or benefits (and an additional amount equal to any taxes imposed on such tax gross-up amount), such that the Executive shall not incur any tax costs with respect to such payments and benefits.

 

9.                                        TERMINATION OF EMPLOYMENT.

 

(a)  Termination Due to Death.  In the event that the Executive’s employment hereunder is terminated due to his death, his estate or his beneficiaries, as the case may be, shall be entitled to the following benefits:

 

(i)            payment of his then Base Salary through the end of the month in which death occurs, payable in a lump sum promptly after the Company receives notice of his death;

 

(ii)           in the event of any such termination in any year other than 2003 or 2004, payment of an amount equal to fifty percent (50%) of the Executive’s Base Salary then in effect in lieu of any Annual Bonus payment for the year in which the Executive’s death occurs, payable in a single installment no later than thirty (30) days after the Company receives notice of his death; and

 

(iii)          to the extent unpaid as of the date of his death, payment of the 2003 Bonus and the 2004 Bonus, payable in a single installment no later than thirty (30) days after the Company receives notice of his death.

 

(b)           Termination Due to Disability.  In the event that the Executive’s employment is terminated due to his Disability, he shall be entitled to the following benefits:

 

(i)            disability benefits in accordance with the Company’s long-term disability program (the “LTD Plan”) then in effect, provided , however, that in the event a termination due to Disability occurs prior to the date the Executive becomes entitled to benefits under the LTD Plan, the Executive shall continue to receive his then Base Salary until such time as the Executive becomes entitled to coverage under the LTD Plan;

 

(ii)           payment of his Base Salary then in effect through the end of the month in which such disability benefits commence, payable in a lump sum promptly after such termination of employment;

 

(iii)          in the event of any such termination in any year other than 2003 or 2004, payment of an amount equal to fifty percent (50%) of the Executive’s Base Salary then in effect in lieu of any Annual Bonus payment for the year in which the Executive’s termination occurs, payable in a single installment no later than thirty (30) days after the date of his termination; and

 

(iv)          to the extent unpaid as of the date of his termination, payment of the 2003 Bonus and the 2004 Bonus, payable in a single installment no later than thirty (30) days after such termination of employment.

 

6

 

In no event shall a termination of the Executive’s employment for Disability occur until the Party terminating his employment gives written notice to the other Party in accordance with Section 20 below.

 

(c)  Termination by the Company for Cause.

 

(i)            A termination for Cause by the Company shall not take effect unless the following provisions of this paragraph (i) are complied with:  The Executive shall first be given written notice by the Board of its intention to terminate him for Cause, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed termination for Cause is based and (B) to be given within ninety (90) days of the Board learning of such act or acts or failure or failures to act.  The Executive shall then have ten (10) calendar days after the date that such written notice has been received by the Executive in which to cure such conduct, to the extent such cure is possible (solely with respect to paragraph (ii) of the definition of “Cause” set forth in Section 1(e) above).  If the Executive fails to cure such conduct or such cure is not possible, the Executive shall then be entitled to a hearing before the Board, at which the Executive and his representative shall have the right to attend and address the Board.  Such hearing shall be held within  fifteen (15) calendar days of such notice to the Executive, provided he requests such hearing within ten (10) calendar days of receipt of the written notice from the Board of the intention to terminate him for Cause.  If, within five (5) calendar days following such hearing, the Executive is furnished written notice by the Board confirming that at least two-thirds of the entire membership of the Board determined, in good faith, that the Executive engaged in conduct set forth in the definition of Cause herein, the Executive  shall thereupon be immediately terminated for Cause.

 

(ii)           In the event the Company terminates the Executive’s employment for Cause, the Executive shall be entitled to his Base Salary then in effect through the date of the termination, payable in a lump sum promptly after such termination of employment.

 

(d)  Termination without Cause by the Company or Constructive Termination by the Executive.

 

(i)            In the event that (x) the Executive’s Term of Employment is terminated by the Company without Cause, other than due to Disability or death or (y) there is a Constructive Termination, and, in either such case, such termination occurs after the Effective Date but prior to October 21, 2007, the Executive shall be entitled to the following benefits:

 

(A)          payment of Base Salary then in effect through the date of termination, payable in a lump sum promptly after such termination of employment;

 

(B)           continued payment of Base Salary, at the annualized rate in effect on the date of termination, for a period of 24 months following the date of such termination;

 

(C)           to the extent unpaid as of the date of his termination, payment of the 2003 Bonus and the 2004 Bonus, payable in a single installment no later than thirty (30) days after such termination of employment;

 

(D)          if the date of such termination occurs in calendar year 2005, 2006 or 2007 (but prior to October 21, 2007), a lump sum payment equal to a pro-rata portion of the Annual Bonus, if any, which the Executive would have received pursuant to Section 5 of this Agreement in respect of such year if the Executive had remained employed hereunder through the date annual bonuses are payable to senior executive officers in respect of such year under the applicable Bonus Plans, with such pro-rata portion based

 

7

 

on the number of days the Executive was employed during the applicable year (relative to the number of days in such year); and

 

(E)           the Executive shall be entitled to continued participation, at the same level of expense paid by the Executive prior to such termination, in all medical, dental, vision and hospitalization insurance coverage and in other similar welfare employee benefit plans or programs generally available to employees of the Company (collectively, “Welfare Plans”) in which he was participating on the date of his termination until the earlier of:  (1) 24 months following the date of termination and  (2) the date, or dates, he becomes eligible for coverage and benefits under corresponding plans and programs of a subsequent employer.  The Executive shall promptly advise the Company of any such subsequent employment and the benefits he receives in connection therewith.  In the event the Company’s Welfare Plans do not permit continuation of the Executive’s participation following his termination, the Company shall provide the Executive with an amount that, after taxes, is sufficient for him to purchase equivalent benefits.

 

(ii)           In the event that the Term of Employment is renewed pursuant to Section 2 of this Agreement, and thereafter (x) the Executive’s Term of Employment is terminated by the Company without Cause, other than due to Disability or death or (y) there is a Constructive Termination, and, in either such case, such termination of employment occurs on or after October 21, 2007, the Executive shall be entitled to the following benefits:

 

(A)          payment of Base Salary then in effect through the date of termination, payable in a lump sum promptly after such termination of employment;

 

(B)           continued payment of Base Salary, at the annualized rate in effect on the date of termination, for a period of 12 months following the date of such termination;

 

(C)           for any year in which the date of such termination occurs, a lump sum payment equal to a pro-rata portion of the Annual Bonus, if any, which the Executive would have received pursuant to Section 5 of this Agreement in respect of such year if the Executive had remained employed hereunder through the date annual bonuses are payable to senior executive officers in respect of such year under the applicable Bonus Plans, with such pro-rata portion based on the number of days the Executive was employed during the applicable year (relative to the number of days in such year); and

 

(D)          the Executive shall be entitled to continued participation, at the same level of expense paid by the Executive prior to such termination, in all Welfare Plans in which he was participating on the date of his termination until the earlier of:  (1) 12 months following the date of termination and  (2) the date, or dates, he becomes eligible for coverage and benefits under the corresponding plans and programs of a subsequent employer.  The Executive shall promptly advise the Company of any such subsequent employment and the benefits he receives in connection therewith.  In the event the Company’s Welfare Plans do not permit continuation of the Executive’s participation following his termination, the Company shall provide the Executive with an amount that, after taxes, is sufficient for him to purchase equivalent benefits.

 

(e)  Voluntary Termination.  A termination of the Term of Employment by the Executive on his own initiative, other than a termination due to death or Disability or a Constructive Termination, shall have the same consequences as provided in Section 9(c)(ii) upon a termination for Cause.  A voluntary termination under this Section 9(e) shall be effective 30 calendar days after the Company receives prior written notice, unless the Company elects by providing in writing to the Executive to make such termination effective earlier.

 

8

 

(f)            Non-renewal of the Term of Employment by the Company.  In the event that the Company notifies the Executive pursuant to Section 2 of this Agreement that the Term of Employment shall not be renewed, the Executive shall be entitled to the same payments and benefits as provided in Section 9(d)(ii) above. Upon any early termination of the Term of Employment, this provision shall not apply.

 

(g)  Consequences of a Change of Control.

 

(i)            Following a “change of control” (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”)), in the event that the Executive’s Term of Employment is terminated pursuant to Section 9(d)(i) or (ii) (as applicable), the Executive shall be entitled to receive the payments and benefits provided in Section 9(d)(i) or (ii), as applicable, above, for the applicable periods provided therein and paid in accordance therewith; provided that, in addition, all amounts, rights and benefits to which the Executive is entitled to receive from the Company but which are not then vested, whether under this Agreement or otherwise, shall become fully vested.

 

(ii)           If, upon a change of control or thereafter, any amount or benefit (collectively, the “Covered Payments”) paid or distributed to the Executive by the Company or any Affiliate pursuant to this Agreement or otherwise is or becomes