Other than for Cause, or for Good Reason. If not terminated earlier, the Executive’s employment under this Agreement and the Employment Period shall terminate upon the date specified in a written notice (A) from the Board terminating the Executive’s employment for any reason other than for Cause, the Executive’s death, the Executive’s Disability, (and in the event no date is specified in the notice, the termination shall be effective upon the date on which the notice is delivered to the Executive); or (B) from the Executive terminating his employment for “Good Reason.” (i) In such event, the Company shall pay or provide to the Executive: (t) the Accrued Benefits; plus (u) a Pro-Rata Bonus, which amount shall be payable at the time the Company normally pays the Annual Bonus and subject to achievement of the applicable performance metric; plus (v) an amount equal to one-twelfth (1/12) of the average annualized Base Salary the Executive was earning in the calendar year of the termination of employment and the immediately preceding calendar year, multiplied by the applicable number of months in the Severance Period, which amount shall be paid in substantially equal payments over the course of the Severance Period in accordance with the Company’s normal payroll practices during such period; plus (w) an amount equal to one-twelfth (1/12) of the average Annual Bonus paid to the Executive for the immediately preceding two (2) performance years (regardless of when the Annual Bonus is actually paid), multiplied by the number of months in the Severance Period, which amount shall be paid in substantially equal payments over the course of the Severance Period in accordance with the Company’s normal payroll practices during such period; plus (x) the vesting and exercisability of any options or SARs and the vesting and settlement of other non-performance based award granted as part of any Annual Equity Grant and the Performance Grant Award (to the extent that the performance objective is achieved in accordance with the terms of the Performance Grant Award Agreements) shall be accelerated and settled in accordance with the applicable award agreement (with the settlement of the Performance Grant Award to be consistent with the terms of the Performance Grant Award Agreements) and all vested options and SARs granted under this Agreement shall remain outstanding until the earlier of the third anniversary of the date of termination of employment and the expiration of the option or SAR, as applicable, by its original terms; plus (y) the Performance Grant Award shall no longer be subject to the clawback provision set forth in subparagraph 4(c); plus (z) Health Benefits Continuation ((u), (v), (w), (x) (y) and (z) hereinafter, the “Severance Benefits”). For the purposes of this Agreement, the “Severance Period” shall be a period of twenty-four (24) months commencing on the termination of the Executive’s employment. Active 15687861.1 8 (ii) If the Executive’s employment is terminated by the Executive for Good Reason or by the Company other than for Cause, the Executive shall continue to earn each of the outstanding PSUs (or other performance based awards) granted as part of any Annual Equity Grant, if and to the extent the performance metrics are satisfied during the applicable performance period, based upon actual performance through the end of the applicable performance period, as certified by the Compensation Committee, as if the Executive’s employment had not terminated. The earned PSUs (or other performance based awards) granted as part of any Annual Equity Grant, if any, shall be paid no later than March 15 of the year following the last year of the applicable performance period. If such termination occurs prior to the Executive receiving all of the Annual Equity Grants provided for in subparagraph 4(e), the Company shall pay the Executive additional amounts equal to the Applicable Percentage of the Annual Grant Value (disregarding the effect of any reduction by the Compensation Committee) of each of the Annual Equity Grants that would have been made between the date of the termination of the Executive’s employment and December 31 of the year preceding the end of the Term, with such amounts to be paid to the Executive in lump sum cash payments during the first ninety (90) days of the applicable grant year and each such payment being equal to the Applicable Percentage of the Annual Grant Value of the Annual Equity Grant that was to be made in the applicable grant year. For purposes of this subparagraph 9(c)(ii), the “Applicable Percentage” shall mean the percentage of the Annual Grant Value of the most recent Annual Equity Grant prior to the Executive’s date of termination that was made in the form of PSUs (or other full value awards); provided, however, that the Applicable Percentage shall never be less than fifty percent (50%). (iii) If the Executive’s employment is terminated by the Executive for Good Reason or by the Company other than for Cause prior to the Executive receiving all of the Annual Equity Grants provided for in subparagraph 4(e), then, in respect of SARs, options or other share-based appreciation awards that would have been granted as part of Annual Equity Grants between the date of the termination of the Executive’s employment and December 31 of the year preceding the end of the Term (the “Ungranted Appreciation Awards”), the Company shall pay the Executive on each date in the future when Ungranted Appreciation Awards would have vested (based on (x) an assumed grant date of January 2 of the applicable year (or on the first day of public trading of the Company’s ordinary shares after January 2 of the applicable year) (the “Deemed Grant Date”), (y) twenty-five percent (25%) annual vesting on each anniversary of the Deemed Grant Date, and (z) the number of Ungranted Appreciation Awards for each applicable Deemed Grant Date being determined based on the Appreciation Award Percentage of the Annual Grant Value (disregarding the effect of any reduction by the Compensation Committee) of the Annual Equity Grants that would have been made in the year of the Deemed Grant Date), a lump sum cash payment equal in amount to the product of (x) the number of shares underlying the Ungranted Appreciation Awards that would have vested on the applicable deemed vesting date and (y) the difference between (A) the applicable closing date share price on the deemed vesting date and (B) the applicable closing date share price on the Deemed Grant Date (the “Phantom Appreciation Awards”). In the event the Company does not have any publicly traded shares, or as a result of a Change in Control the publicly traded share price does not (in the reasonable determination of the Board) accurately reflect the value of the business managed by the Active 15687861.1 9 Executive, then the “base price” or “exercise price”(as applicable) and “appreciated value on exercise” of such Phantom Appreciation Awards shall be determined assuming a seven percent (7%) annual rate of growth (compounded annually), commencing from the date ten (10) days prior the last business day the Company had publicly traded shares, or the date ten (10) days prior to such Change in Control (as a result of which the Board determined the publicly traded share price does not accurately reflect the value of the business managed by the Executive), as applicable, in each case with such value determined using the average closing price of the applicable shares on the ten (10) days preceding and including such date and the ten (10) days following such date. For purposes of this subparagraph 9(c)(iii), the Appreciation Award Percentage shall be one hundred percent (100%) minus the Applicable Percentage. (iv) The Executive shall have “Good Reason” as a result of the Company’s:
Appears in 1 contract
Samples: Employment Agreement
Other than for Cause, or for Good Reason. If not terminated earlier, the Executive’s employment under this Agreement and the Employment Period shall terminate upon Upon the date specified in a written notice (Ai) from the Board terminating the Executive’s employment for any reason other than for Cause, the Executive’s death, the Executive’s “Disability, ,” or the expiration of the Term of Employment (and in the event no date is specified in the notice, the termination shall be effective upon the date on which the notice is delivered to the Executive); or (Bii) from the Executive terminating his employment for “Good Reason.” (i) In such event, the Company shall pay or provide to the Executive: (tu) the Accrued Benefits; plus (uv) an amount equal to a Pro-Rata Bonusfraction of the Annual Bonus the Executive would have received for the calendar year of the termination, where the numerator of the fraction is the number of calendar days the Executive was employed during the calendar year and the EXECUTION COPY denominator of the fraction is 365, which amount shall be payable at the time the Company normally pays the Annual Bonus and subject to achievement of the applicable performance metric; plus (vw) an amount equal to one-twelfth (1/12) of the average annualized Base Salary the Executive was earning in the calendar year of the termination of employment and the immediately preceding calendar year, multiplied by the applicable number of months in the Severance Period, which amount shall be paid in substantially equal payments over the course of the Severance Period in accordance with the Company’s normal payroll practices during such period; plus (wx) an amount equal to one-twelfth (1/12) of the average Annual Bonus paid to the Executive for the immediately preceding two (2) performance years (regardless of when the Annual Bonus is actually paid)years, multiplied by the number of months in the Severance Period, which amount shall be paid in substantially equal payments over the course of the Severance Period in accordance with the Company’s normal payroll practices during such period; plus (xy) the accelerated vesting and exercisability payment of any options or Executive’s Appreciation Units under the DAP and the granted but unvested Special CS-SARs and the vesting and settlement of other non-performance based award granted as part of any Annual Equity Grant and the Performance Grant Award (to the extent that the performance objective is achieved but unvested New SARs in accordance with the terms of the Performance Grant Award AgreementsParagraph 4(d)(iii) shall be accelerated and settled in accordance with the applicable award agreement (with the settlement of the Performance Grant Award to be consistent with the terms of the Performance Grant Award Agreements) and all vested options and SARs granted under this Agreement shall remain outstanding until the earlier of the third anniversary of the date of termination of employment and the expiration of the option or SAR, as applicable, by its original terms; plus (y) the Performance Grant Award shall no longer be subject to the clawback provision set forth in subparagraph 4(c)hereof; plus (z) Health Benefits Continuation the Executive and his dependents may elect to (1) continue to receive coverage under the Company’s group health benefits plan to the extent permitted by, and under the terms of, such plan and to the extent such benefits continue to be provided to the former executives of the Company generally, or (2) receive COBRA continuation of the group health benefits previously provided to the Executive and his family pursuant to Paragraph 5 (provided Executive timely elects such COBRA coverage) in which case the Company shall pay the premiums for such COBRA coverage up to the maximum applicable COBRA period, provided that if the Company determines that the provision of continued group health coverage at the Company’s expense may result in Federal taxation of the benefit provided thereunder to Executive or his family (e.g., because such benefits are provided by a self-insured basis by the Company) or in other penalties applied to the Company, then the Executive shall be obligated to pay the full monthly premium for such coverage and, in such event, the Company shall pay the Executive, in a lump sum (or, if such lump sum would violate IRC 409A, in monthly installments), an amount equivalent to the monthly premium for COBRA coverage for the remaining balance of the maximum COBRA period (provided, that the Company shall cease to pay such COBRA premiums at such time that Executive obtains new employment and is eligible for health insurance benefits from the new employer or COBRA rights otherwise expire) ((u), (v), (w), (x) (y) and (z) hereinafter, the “Severance Benefits”). For the purposes of this Agreement, the “Severance Period” shall be a period of twenty-four (24) months commencing on the termination of the Executive’s employment. Active 15687861.1 8 (ii) If the Executive’s employment is terminated by the Executive for Good Reason or by the Company other than for Cause, Cause the Executive shall continue to earn each of the outstanding PSUs (or other performance based awards) granted as part of any Annual Equity GrantPRSUs, if and to the extent the performance metrics are satisfied during the applicable performance period, based upon actual performance through the end of the applicable performance period, as certified by the Compensation Committee, as if the Executive’s employment had not terminated. The earned PSUs (or other performance based awards) granted as part of any Annual Equity Grant, if any, PRSUs shall be paid no later than March 15 of at the year following same time as if the last year of Executive continued to be employed by the applicable performance periodCompany. If such termination occurs is prior to the Executive receiving all of the Annual Equity Grants provided for in subparagraph 4(e), the Company shall pay the Executive additional amounts equal to the Applicable Percentage of the Annual Grant Value grant date (disregarding the effect of any reduction by the Compensation Committee) of each of the Annual Equity Grants that would have been made between the date of the termination of the Executive’s employment and December 31 of the year preceding the end of the Term, with such amounts to be paid to the Executive in lump sum cash payments during within the first ninety (90) days of the applicable performance period before the performance metrics for such performance period have been established) then there will be no grant year of such tranche (and each no PRSUs for such payment being equal to the Applicable Percentage of the Annual Grant Value of the Annual Equity Grant that was to tranche may be made in the applicable grant year. For purposes of this subparagraph 9(c)(iiearned), the “Applicable Percentage” shall mean the percentage of the Annual Grant Value of the most recent Annual Equity Grant provided further that if such termination is prior to the Executive’s grant date for: (A) the 2015 tranche of termination that was made New PRSUs, then the Company shall pay the EXECUTION COPY Executive as additional Severance Benefits $61,000,000, to be paid to the Executive in one installment of $16,000,000 in 2015 plus three equal installments of $15,000,000 in each of 2016, 2017 and 2018, with each installment paid during the form first 90 days of PSUs such calendar year, or (B) the 2016 tranche of New PRSUs (but after the grant date for the 2015 tranche of New PRSUs), then the Company shall pay the Executive as additional Severance Benefits $45,000,000, to be paid to the Executive in three equal installments, with each installment paid during the first 90 days of 2016, 2017 and 2018, or other full value awards(C) the 2017 tranche of New PRSUs (but after the grant date for the 2016 tranche of New PRSUs); provided, howeverthen the Company shall pay the Executive as additional Severance Benefits $30,000,000, that to be paid to the Applicable Percentage Executive in two equal installments, with each installment paid during the first 90 days of 2017 and 2018, or (D) the 2018 tranche of New PRSUs, (but after the grant date for the 2017 tranche of New PRSUs), then the Company shall never pay the Executive as additional Severance Benefits $15,000,000, to be less than fifty percent paid to the Executive during the first 90 days of 2018 (50%any such payments subject to the applicable withholding). (iii) If the Executive’s employment is terminated by the Executive for Good Reason or by the Company other than for Cause prior to the Executive receiving all of the Annual Equity Grants provided for replenishment awards associated with the 2014 New SAR award (such awards to be received in subparagraph 4(e2015, 2016, 2017 and 2018), then, in respect of SARs, options or other share-based appreciation such future New SAR awards that would have been granted as part of Annual Equity Grants between the date of the termination of the Executive’s employment and December 31 of the year preceding the end of the Term will not be issued (the “Ungranted Appreciation AwardsSARs”); however, the Company shall pay the Executive on each date in the future when Ungranted Appreciation Awards the Executive would have vested received a payment in settlement of such Ungranted SAR (based on (x) an assumed grant date of January 2 of the applicable year (or on the first day of public trading of the Company’s ordinary shares after January 2 of the applicable year) (the “Deemed Grant Date”had such Ungranted SARs in fact been granted), (y) twenty-five percent (25%) annual vesting on each anniversary of the Deemed Grant Date, and (z) Company shall pay to the number of Ungranted Appreciation Awards for each applicable Deemed Grant Date being determined based on the Appreciation Award Percentage of the Annual Grant Value (disregarding the effect of any reduction by the Compensation Committee) of the Annual Equity Grants that would have been made in the year of the Deemed Grant Date), Executive a lump sum cash payment equal in amount to the product of (x) payment the number of shares underlying the Ungranted Appreciation Awards that Executive would have vested on received had he continued to receive such Ungranted SARs, with such amount payable at the applicable deemed vesting date and same time as the Executive would have received payments under such Ungranted SARs, as if the Executive’s employment had not terminated (y) the difference between (A) the applicable closing date share price on the deemed vesting date and (B) the applicable closing date share price on the Deemed Grant Date (the “Phantom Appreciation AwardsCS-SARs”). In the event the Company does not have any publicly traded sharesstock, or as a result of a Change in Control the publicly traded share stock price does not (in the reasonable determination of the Board) accurately reflect the value of the business managed by the Active 15687861.1 9 Executive, then the “base strike price” or “exercise price”(as applicable) and “appreciated value on exercise” of such Phantom Appreciation Awards CS-SARs shall be determined assuming a seven percent (7%) % annual rate of growth (compounded annually), commencing from the date ten (10) 10 days prior the last business day the Company had publicly traded sharesstock, or the date ten (10) 10 days prior to such Change in Control (as a result of which the Board determined the publicly traded share stock price does not accurately reflect the value of the business managed by the Executive), as applicable, in each case with such value determined using the average closing price of the applicable shares on the ten (10) 10 days preceding and including such date and the ten (10) 10 days following such date. For purposes of this subparagraph 9(c)(iii), the Appreciation Award Percentage shall be one hundred percent (100%) minus the Applicable Percentage. (iv) The Executive shall have “Good Reason” as a result of the Company’s:
Appears in 1 contract
Samples: Employment Agreement (Discovery Communications, Inc.)
Other than for Cause, or for Good Reason. If not terminated earlier, the Executive’s employment under this Agreement and the Employment Period shall terminate upon Upon the date specified in a written notice (Ai) from the Board terminating the Executive’s employment for any reason other than for Cause, the Executive’s death, the Executive’s “Disability, ,” or the expiration of the Term of Employment (and in the event no date is specified in the notice, the termination shall be effective upon the date on which the notice is delivered to the Executive); or (Bii) from the Executive terminating his employment for “Good Reason.” (i) In such event, the Company shall pay or provide to the Executive: (t) the Accrued Benefits; plus (u) an amount equal to a Pro-Rata Bonusfraction of the Annual Bonus the Executive would have received for the calendar year of the termination, where the numerator of the fraction is the number of calendar days the Executive was employed during the calendar year and the denominator of the fraction is 365, which amount shall be payable at the time the Company normally pays the Annual Bonus and subject to achievement of the applicable performance metric; plus (v) an amount equal to one-twelfth (1/12) of the average annualized Base Salary the Executive was earning in the calendar year of the termination of employment and the immediately preceding calendar year, multiplied by the applicable number of months in the Severance Period, which amount shall be paid in substantially equal payments over the course of the Severance Period in accordance with the Company’s normal payroll practices during such period; plus (w) an amount equal to one-twelfth (1/12) of the average Annual Bonus paid to the Executive for the immediately preceding two (2) performance years (regardless provided that the amount of when the any Annual Bonus is actually paidin excess of $12,000,000 shall be disregarded), multiplied by the number of months in the Severance Period, which amount shall be paid in substantially equal payments over the course of the Severance Period in accordance with the Company’s normal payroll practices during such period; plus (x) plus accelerated vesting of the vesting and exercisability of any options or SARs and the vesting and settlement of other non-performance based award granted as part of any Annual Equity Grant and the Performance Grant Award (to the extent that the performance objective is achieved but unvested Stock Options in accordance with the terms of the Performance Grant Award Agreements) shall be accelerated and settled in accordance with the applicable award agreement (with the settlement of the Performance Grant Award to be consistent with the terms of the Performance Grant Award Agreements) and all vested options and SARs granted under this Agreement shall remain outstanding until the earlier of the third anniversary of the date of termination of employment and the expiration of the option or SAR, as applicable, by its original termsParagraph 4(c)(vi); plus (y) accelerated vesting and payment of the Performance Grant Award shall no longer be subject Executive’s granted and unvested New SARs pursuant to the clawback provision set forth in subparagraph 4(c)terms of Paragraph 4(d)(ii) of the Prior Agreement; plus (z) Health Benefits Continuation the Executive and his dependents may elect to (1) continue to receive coverage under the Company’s group health benefits plan to the extent permitted by, and under the terms of, such plan and to the extent such benefits continue to be provided to the former executives of the Company generally, or (2) receive COBRA continuation of the group health benefits previously provided to the Executive and his family pursuant to Paragraph 5 (provided Executive timely elects such COBRA coverage) in which case the Company shall pay the premiums for such COBRA coverage up to the maximum applicable COBRA period, provided that if the Company determines that the provision of continued group health coverage at the Company’s expense may result in Federal taxation of the benefit provided thereunder to Executive or his family (e.g., because such benefits are provided by a self-insured basis by the Company) or in other penalties applied to the Company, then the Executive shall be obligated to pay the full monthly premium for such coverage and, in such event, the Company shall pay the Executive, in a lump sum (or, if such lump sum would violate IRC 409A, in monthly installments), an amount equivalent to the monthly premium for COBRA coverage for the remaining balance of the maximum COBRA period (provided, that the Company shall cease to pay such COBRA premiums at such time that Executive obtains new employment and is eligible for health insurance benefits from the new employer or COBRA rights otherwise expire) ((u), (v), (w), (x) (y) and (z) hereinafter, the “Severance Benefits”). For the purposes of this Agreement, the “Severance Period” shall be a period of twenty-four (24) months commencing on the termination of the Executive’s employment. Active 15687861.1 8 (ii) If the Executive’s employment is terminated by the Executive for Good Reason or by the Company other than for Cause, Cause the Executive shall continue to earn each of the outstanding PSUs PRSUs (or other performance based awards) including any outstanding PRSUs granted as part of any Annual Equity Grantunder the Prior Agreement), if and to the extent the performance metrics are satisfied during the applicable performance period, based upon actual performance through the end of the applicable performance period, as certified by the Compensation Committee, as if the Executive’s employment had not terminated. The earned PSUs (or other performance based awards) granted as part of any Annual Equity Grant, if any, PRSUs shall be paid no later than March 15 of at the year following same time as if the last year of Executive continued to be employed by the applicable performance periodCompany. If such termination occurs is prior to the Executive receiving all of the Annual Equity Grants provided for in subparagraph 4(e), the Company shall pay the Executive additional amounts equal to the Applicable Percentage of the Annual Grant Value grant date (disregarding the effect of any reduction by the Compensation Committee) of each of the Annual Equity Grants that would have been made between the date of the termination of the Executive’s employment and December 31 of the year preceding the end of the Term, with such amounts to be paid to the Executive in lump sum cash payments during within the first ninety (90) days of the applicable performance period before the performance metrics for such performance period have been established) then there will be no grant year of such tranche (and each no PRSUs for such payment being equal to the Applicable Percentage of the Annual Grant Value of the Annual Equity Grant that was to tranche may be made in the applicable grant year. For purposes of this subparagraph 9(c)(ii), the “Applicable Percentage” shall mean the percentage of the Annual Grant Value of the most recent Annual Equity Grant prior to the Executive’s date of termination that was made in the form of PSUs (or other full value awards); provided, however, that the Applicable Percentage shall never be less than fifty percent (50%earned). (iii) If the Executive’s employment is terminated by the Executive for Good Reason or by the Company other than for Cause prior to the Executive receiving all of the Annual Equity Grants provided for in subparagraph 4(e), then, in respect of SARs, options or other share-based appreciation awards that would have been granted as part of Annual Equity Grants between the date of the termination of the Executive’s employment and December 31 of the year preceding the end of the Term (the “Ungranted Appreciation Awards”), the Company shall pay the Executive on each date in the future when Ungranted Appreciation Awards would have vested (based on (x) an assumed grant date of January 2 of the applicable year (or on the first day of public trading of the Company’s ordinary shares after January 2 of the applicable year) (the “Deemed Grant Date”), (y) twenty-five percent (25%) annual vesting on each anniversary of the Deemed Grant Date, and (z) the number of Ungranted Appreciation Awards for each applicable Deemed Grant Date being determined based on the Appreciation Award Percentage of the Annual Grant Value (disregarding the effect of any reduction by the Compensation Committee) of the Annual Equity Grants that would have been made in the year of the Deemed Grant Date), a lump sum cash payment equal in amount to the product of (x) the number of shares underlying the Ungranted Appreciation Awards that would have vested on the applicable deemed vesting date and (y) the difference between (A) the applicable closing date share price on the deemed vesting date and (B) the applicable closing date share price on the Deemed Grant Date (the “Phantom Appreciation Awards”). In the event the Company does not have any publicly traded shares, or as a result of a Change in Control the publicly traded share price does not (in the reasonable determination of the Board) accurately reflect the value of the business managed by the Active 15687861.1 9 Executive, then the “base price” or “exercise price”(as applicable) and “appreciated value on exercise” of such Phantom Appreciation Awards shall be determined assuming a seven percent (7%) annual rate of growth (compounded annually), commencing from the date ten (10) days prior the last business day the Company had publicly traded shares, or the date ten (10) days prior to such Change in Control (as a result of which the Board determined the publicly traded share price does not accurately reflect the value of the business managed by the Executive), as applicable, in each case with such value determined using the average closing price of the applicable shares on the ten (10) days preceding and including such date and the ten (10) days following such date. For purposes of this subparagraph 9(c)(iii), the Appreciation Award Percentage shall be one hundred percent (100%) minus the Applicable Percentage. (iv) The Executive shall have “Good Reason” as a result of the Company’s:
Appears in 1 contract
Other than for Cause, or for Good Reason. If not terminated earlier, the Executive’s employment under this Agreement and the Employment Period shall terminate upon Upon the date specified in a written notice (Ai) from the Board terminating the Executive’s employment for any reason other than for Cause, the Executive’s death, the Executive’s “Disability, ,” or the expiration of the Term of Employment (and in the event no date is specified in the notice, the termination shall be effective upon the date on which the notice is delivered to the Executive); or (Bii) from the Executive terminating his employment for “Good Reason.” (i) In such event, the Company shall pay or provide to the Executive: (t) the Accrued Benefits; plus (u) an amount equal to a Pro-Rata Bonusfraction of the Annual Bonus the Executive would have received for the calendar year of the termination, where the numerator of the fraction is the number of calendar days the Executive was employed during the calendar year and the denominator of the fraction is 365, which amount shall be payable at the time the Company normally pays the Annual Bonus and subject to achievement of the applicable performance metric; plus (v) an amount equal to one-twelfth (1/12) of the average annualized Base Salary the Executive was earning in the calendar year of the termination of employment and the immediately preceding calendar year, multiplied by the applicable number of months in the Severance Period, which amount shall be paid in substantially equal payments over the course of the Severance Period in accordance with the Company’s normal payroll practices during such period; plus (w) an amount equal to one-twelfth (1/12) of the average Annual Bonus paid to the Executive for the immediately preceding two (2) performance years (regardless provided that the amount of when the any Annual Bonus is actually paidin excess of $12,000,000 shall be disregarded), multiplied by the number of months in the Severance Period, which amount shall be paid in substantially equal payments over the course of the Severance Period in accordance with the Company’s normal payroll practices during such period; plus (x) the accelerated vesting and exercisability payment of any options or Executive’s granted but unvested New SARs and the vesting and settlement of other non-performance based award granted as part of any Annual Equity Grant and the Performance Grant Award (to the extent that the performance objective is achieved in accordance with the terms Paragraph 4(d)(ii) hereof; (y) plus accelerated vesting of the Performance Grant Award Agreements) shall be accelerated and settled granted but unvested Stock Options in accordance with the applicable award agreement (with the settlement of the Performance Grant Award to be consistent with the terms of the Performance Grant Award Agreements) and all vested options and SARs granted under this Agreement shall remain outstanding until the earlier of the third anniversary of the date of termination of employment and the expiration of the option or SAR, as applicable, by its original terms; plus (y) the Performance Grant Award shall no longer be subject to the clawback provision set forth in subparagraph 4(cParagraph 4(c)(iv); plus (z) Health Benefits Continuation the Executive and his dependents may elect to (1) continue to receive coverage under the Company’s group health benefits plan to the extent permitted by, and under the terms of, such plan and to the extent such benefits continue to be provided to the former executives of the Company generally, or (2) receive COBRA continuation of the group health benefits previously provided to the Executive and his family pursuant to Paragraph 5 (provided Executive timely elects such COBRA coverage) in which case the Company shall pay the premiums for such COBRA coverage up to the maximum applicable COBRA period, provided that if the Company determines that the provision of continued group health coverage at the Company’s expense may result in Federal taxation of the benefit provided thereunder to Executive or his family (e.g., because such benefits are provided by a self-insured basis by the Company) or in other penalties applied to the Company, then the Executive shall be obligated to pay the full monthly premium for such coverage and, in such event, the Company shall pay the Executive, in a lump sum (or, if such lump sum would violate IRC 409A, in monthly installments), an amount equivalent to the monthly premium for COBRA coverage for the remaining balance of the maximum COBRA period (provided, that the Company shall cease to pay such COBRA premiums at such time that Executive obtains new employment and is eligible for health insurance benefits from the new employer or COBRA rights otherwise expire) ((u), (v), (w), (x) (y) and (z) hereinafter, the “Severance Benefits”). For the purposes of this Agreement, the “Severance Period” shall be a period of twenty-four (24) months commencing on the termination of the Executive’s employment. Active 15687861.1 8 (ii) EXECUTION COPY If the Executive’s employment is terminated by the Executive for Good Reason or by the Company other than for Cause, Cause the Executive shall continue to earn each of the outstanding PSUs (or other performance based awards) granted as part of any Annual Equity GrantPRSUs, if and to the extent the performance metrics are satisfied during the applicable performance period, based upon actual performance through the end of the applicable performance period, as certified by the Compensation Committee, as if the Executive’s employment had not terminated. The earned PSUs (or other performance based awards) granted as part of any Annual Equity Grant, if any, PRSUs shall be paid no later than March 15 of at the year following same time as if the last year of Executive continued to be employed by the applicable performance periodCompany. If such termination occurs is prior to the Executive receiving all of the Annual Equity Grants provided for in subparagraph 4(e), the Company shall pay the Executive additional amounts equal to the Applicable Percentage of the Annual Grant Value grant date (disregarding the effect of any reduction by the Compensation Committee) of each of the Annual Equity Grants that would have been made between the date of the termination of the Executive’s employment and December 31 of the year preceding the end of the Term, with such amounts to be paid to the Executive in lump sum cash payments during within the first ninety (90) days of the applicable performance period before the performance metrics for such performance period have been established) then there will be no grant year of such tranche (and each no PRSUs for such payment being equal to the Applicable Percentage of the Annual Grant Value of the Annual Equity Grant that was to tranche may be made in the applicable grant year. For purposes of this subparagraph 9(c)(ii), the “Applicable Percentage” shall mean the percentage of the Annual Grant Value of the most recent Annual Equity Grant prior to the Executive’s date of termination that was made in the form of PSUs (or other full value awards); provided, however, that the Applicable Percentage shall never be less than fifty percent (50%earned). (iii) If the Executive’s employment is terminated by the Executive for Good Reason or by the Company other than for Cause prior to the Executive receiving all of the Annual Equity Grants provided for in subparagraph 4(e), then, in respect of SARs, options or other share-based appreciation awards that would have been granted as part of Annual Equity Grants between the date of the termination of the Executive’s employment and December 31 of the year preceding the end of the Term (the “Ungranted Appreciation Awards”), the Company shall pay the Executive on each date in the future when Ungranted Appreciation Awards would have vested (based on (x) an assumed grant date of January 2 of the applicable year (or on the first day of public trading of the Company’s ordinary shares after January 2 of the applicable year) (the “Deemed Grant Date”), (y) twenty-five percent (25%) annual vesting on each anniversary of the Deemed Grant Date, and (z) the number of Ungranted Appreciation Awards for each applicable Deemed Grant Date being determined based on the Appreciation Award Percentage of the Annual Grant Value (disregarding the effect of any reduction by the Compensation Committee) of the Annual Equity Grants that would have been made in the year of the Deemed Grant Date), a lump sum cash payment equal in amount to the product of (x) the number of shares underlying the Ungranted Appreciation Awards that would have vested on the applicable deemed vesting date and (y) the difference between (A) the applicable closing date share price on the deemed vesting date and (B) the applicable closing date share price on the Deemed Grant Date (the “Phantom Appreciation Awards”). In the event the Company does not have any publicly traded shares, or as a result of a Change in Control the publicly traded share price does not (in the reasonable determination of the Board) accurately reflect the value of the business managed by the Active 15687861.1 9 Executive, then the “base price” or “exercise price”(as applicable) and “appreciated value on exercise” of such Phantom Appreciation Awards shall be determined assuming a seven percent (7%) annual rate of growth (compounded annually), commencing from the date ten (10) days prior the last business day the Company had publicly traded shares, or the date ten (10) days prior to such Change in Control (as a result of which the Board determined the publicly traded share price does not accurately reflect the value of the business managed by the Executive), as applicable, in each case with such value determined using the average closing price of the applicable shares on the ten (10) days preceding and including such date and the ten (10) days following such date. For purposes of this subparagraph 9(c)(iii), the Appreciation Award Percentage shall be one hundred percent (100%) minus the Applicable Percentage. (iv) The Executive shall have “Good Reason” as a result of the Company’s:
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Other than for Cause, or for Good Reason. If not terminated earlier, the Executive’s employment under this Agreement and the Employment Period shall terminate upon Upon the date specified in a written notice (Ai) from the Board of Directors terminating the Executive’s employment for any reason other than for Cause, the Executive’s death, the Executive’s “Disability, ,” or the expiration of the Term of Employment (and in the event no date is specified in the notice, the termination shall be effective upon the date on which the notice is delivered to the Executive); or (Bii) from the Executive terminating his employment for “Good Reason.” (i) In such event, the Company shall pay or provide to the Executive: (tu) the Accrued Benefits; plus (uv) an amount equal to a Pro-Rata fraction of the Annual Bonus the Executive would have received for the calendar year of the termination (including any guaranteed Annual Bonus), where the numerator of the fraction is the number of calendar days the Executive was employed during the calendar year and the denominator of the fraction is 365, which amount shall be payable at the time the Company normally pays the Annual Bonus and subject to achievement of the applicable performance metricBonus; plus (vw) an amount equal to one-twelfth (1/12) of the average Executive’s then current annualized Base Salary the Executive was earning in the calendar year of the termination of employment and the immediately preceding calendar year, multiplied by the applicable number of months in the Severance Period, which amount shall be paid in substantially equal payments over the course of the Severance Period in accordance with the Company’s normal payroll practices during such period; plus (wx) an amount equal to one-twelfth (1/12) of the average Executive’s then current Target Annual Bonus paid to the Executive for the immediately preceding two (2) performance years (regardless of when the Annual Bonus is actually paid), multiplied by the number of months in the Severance Period, which amount shall be paid in substantially equal payments over the course of the Severance Period in accordance with the Company’s normal payroll practices during such period; plus (xy) the accelerated vesting and exercisability payment of any options or SARs and Executive’s Appreciation Units under the vesting and settlement of other non-performance based award granted as part of any Annual Equity Grant and the Performance Grant Award (to the extent that the performance objective is achieved DAP in accordance with the terms of the Performance Grant Award AgreementsParagraph 4(d) shall be accelerated and settled in accordance with the applicable award agreement (with the settlement of the Performance Grant Award to be consistent with the terms of the Performance Grant Award Agreements) and all vested options and SARs granted under this Agreement shall remain outstanding until the earlier of the third anniversary of the date of termination of employment and the expiration of the option or SAR, as applicable, by its original terms; plus (y) the Performance Grant Award shall no longer be subject to the clawback provision set forth in subparagraph 4(c)hereof; plus (z) Health Benefits Continuation payment of the “COBRA” premiums for the continuation of Company group health insurance benefits provided to Executive and his family pursuant to Paragraph 5 (provided Executive timely elects such COBRA coverage) for the Severance Period (provided, that the Company shall cease to pay such COBRA premiums at such time that Executive obtains new employment and is eligible for health insurance benefits from the new employer or COBRA rights otherwise expire) ((u), (v), (w), (x) (y) and (z) hereinafter, the “Severance Benefits”). For the purposes of this Agreement, the “Severance Period” shall be be: (A) a period of thirty-six (36) months if such termination occurs prior to the first anniversary of the Effective Date, (B) a period of thirty (30) months if such termination occurs on or after the first anniversary but before the second anniversary of the Effective Date, (C) a period of twenty-four (24) months commencing on the termination of the Executive’s employment. Active 15687861.1 8 (ii) If the Executive’s employment is terminated by the Executive for Good Reason or by the Company other than for Cause, the Executive shall continue to earn each of the outstanding PSUs (or other performance based awards) granted as part of any Annual Equity Grant, if and to the extent the performance metrics are satisfied during the applicable performance period, based upon actual performance through the end of the applicable performance period, as certified by the Compensation Committee, as if the Executive’s employment had not terminated. The earned PSUs (or other performance based awards) granted as part of any Annual Equity Grant, if any, shall be paid no later than March 15 of the year following the last year of the applicable performance period. If such termination occurs prior to on or after the Executive receiving all of second anniversary but before the Annual Equity Grants provided for in subparagraph 4(e), the Company shall pay the Executive additional amounts equal to the Applicable Percentage of the Annual Grant Value (disregarding the effect of any reduction by the Compensation Committee) of each of the Annual Equity Grants that would have been made between the date of the termination of the Executive’s employment and December 31 of the year preceding the end of the Term, with such amounts to be paid to the Executive in lump sum cash payments during the first ninety (90) days of the applicable grant year and each such payment being equal to the Applicable Percentage of the Annual Grant Value of the Annual Equity Grant that was to be made in the applicable grant year. For purposes of this subparagraph 9(c)(ii), the “Applicable Percentage” shall mean the percentage of the Annual Grant Value of the most recent Annual Equity Grant prior to the Executive’s date of termination that was made in the form of PSUs (or other full value awards); provided, however, that the Applicable Percentage shall never be less than fifty percent (50%). (iii) If the Executive’s employment is terminated by the Executive for Good Reason or by the Company other than for Cause prior to the Executive receiving all of the Annual Equity Grants provided for in subparagraph 4(e), then, in respect of SARs, options or other share-based appreciation awards that would have been granted as part of Annual Equity Grants between the date of the termination of the Executive’s employment and December 31 of the year preceding the end of the Term (the “Ungranted Appreciation Awards”), the Company shall pay the Executive on each date in the future when Ungranted Appreciation Awards would have vested (based on (x) an assumed grant date of January 2 of the applicable year (or on the first day of public trading of the Company’s ordinary shares after January 2 of the applicable year) (the “Deemed Grant Date”), (y) twenty-five percent (25%) annual vesting on each third anniversary of the Deemed Grant Effective Date, and (zD) a period of eighteen (18) months if such termination occurs on or after the number of Ungranted Appreciation Awards for each applicable Deemed Grant Date being determined based on third anniversary but before the Appreciation Award Percentage fourth anniversary of the Annual Grant Value (disregarding the effect of any reduction by the Compensation Committee) of the Annual Equity Grants that would have been made in the year of the Deemed Grant Effective Date), a lump sum cash payment equal in amount to the product of (x) the number of shares underlying the Ungranted Appreciation Awards that would have vested on the applicable deemed vesting date and (y) the difference between (A) the applicable closing date share price on the deemed vesting date and (B) the applicable closing date share price on the Deemed Grant Date (the “Phantom Appreciation Awards”). In the event the Company does not have any publicly traded shares, or as (E) a result period of a Change in Control twelve (12) months if such termination occurs on or after the publicly traded share price does not (in the reasonable determination of the Board) accurately reflect the value of the business managed by the Active 15687861.1 9 Executive, then the “base price” or “exercise price”(as applicable) and “appreciated value on exercise” of such Phantom Appreciation Awards shall be determined assuming a seven percent (7%) annual rate of growth (compounded annually), commencing from the date ten (10) days prior the last business day the Company had publicly traded shares, or the date ten (10) days prior to such Change in Control (as a result of which the Board determined the publicly traded share price does not accurately reflect the value of the business managed by the Executive), as applicable, in each case with such value determined using the average closing price of the applicable shares on the ten (10) days preceding and including such date and the ten (10) days following such datefourth anniversary. For purposes of this subparagraph 9(c)(iii), the Appreciation Award Percentage shall be one hundred percent (100%) minus the Applicable Percentage. (iv) The Executive shall have “Good Reason” as a result of the Company’s:
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Samples: Employment Agreement (Discovery Communications, Inc.)
