Payments Upon Certain Terminations. (i) In the event of a termination of Executive's employment by the Company Without Cause or a termination by Executive of his employment for Good Reason during the Employment Period, the Company shall pay to Executive (or, following his death, to Executive's estate) within 30 days of the Date of Termination his (x) full Base Salary through the Date of Termination, (y) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) and (z) payment for vacation time accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "Accrued Obligations"). In addition, in the event of any such termination of Executive's employment, provided Executive executes and delivers to the Company a Release and Discharge of Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement) in a form acceptable to the Company, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefits, as liquidated damages: (A) continued payments of the Base Salary, payable in installments in accordance with the Company's regular payroll policies, for the period beginning on the Date of Termination and ending on the eighteen months anniversary of the Date of Termination (the "Severance Period"); (B) a portion of Executive's Bonus for the fiscal year of the Company that includes the Date of Termination, such portion to equal the product (such product, the "Pro Rata Bonus") of (1) the Bonus that would have been payable to Executive for such year had he remained employed for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board or a committee thereof, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by the Company to its active executives; (C) payment of an amount equal to 150% of the Average Annual Bonus (as defined below), such amount to be paid in two equal installments, the first such installment to be paid within five business days following the Bonus Payment Date for the fiscal year of the Company that includes the Date of Termination and the second such installment to be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and (D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of the Company under the terms of such plans as in effect from time to time.
Appears in 4 contracts
Sources: Employment Agreement (Instinet Group Inc), Employment Agreement (Instinet Group Inc), Employment Agreement (Instinet Group Inc)
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's employment by the Company Without Cause or a termination by Executive of his Executive's resignation from employment for Good Reason during the Employment Period, the Company shall pay to Executive (or, following his death, to Executive's estate), within thirty (30) within 30 days of the Date of Termination his Termination, (x) full his Base Salary through the Date of Termination, to the extent not previously paid; (y) the pro-rata amount of the Annual Bonus (based on the amount paid for the previous year) which is accrued through the date of termination; and (z) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) the terms hereof, and (z) payment for vacation paid time off accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "Accrued Obligations"). In addition, in the event of any such termination of Executive's employment, provided if Executive executes and delivers to the Company a Release and Discharge of All Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained substantially in this Agreement) in a the form acceptable to approved by the Company, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefits, as liquidated damages:
(A) continued payments of the Executive's Base Salary (at the Base SalarySalary being paid on the Date of Termination), for the longer of: (x) the remaining Employment Period or (y) one (1) year (the "Severance Period"), payable in installments in accordance with the Company's regular payroll policies, policies for the period beginning on the Date of Termination and ending on the eighteen months anniversary of the Date of Termination (the "Severance Period");
(B) a portion of Executive's Bonus for the fiscal one year of the Company that includes after the Date of Termination, such portion with the balance, if any, being paid pursuant to equal a lump sum payment on the product one year anniversary date of the Date of Termination; and
(such product, the "Pro Rata Bonus") of (1B) the Executive's Annual Bonus that (at the amount of the Annual Bonus paid to the Executive for the year prior to the Date of Termination) which would have been payable paid to the Executive for such year had he remained employed Executive's employment continued for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives Severance Period, duly apportioned for such year established by the Board or a committee thereof, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365any partial year, such amount to be payable to Executive within five business days following on the one year anniversary date (of the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by the Company to its active executives;Date of Termination; and
(C) payment the Executive shall receive "Years of an amount equal Service" credit for the number of years comprising the Severance Period for purposes of accruing the Executive's benefit under the Company's Executive Retirement Plan and the Final Average Earnings thereunder for the Severance Period shall be determined based on the Base Salary being paid on the Date of Termination and the Annual Bonus paid to 150% the Executive for the year prior to the Date of Termination;
(D) the Executive shall automatically vest in all employee welfare and benefit plans in which the Executive was participating as of the Average Annual Bonus Date of Termination and such benefits shall be paid to Executive in accordance with the terms of such plans; and
(as defined belowE) the Company shall provide outplacement services to Executive for up to ninety (90) days. Executive shall not have a duty to mitigate the costs to the Company under this Section 8(f)(i), such amount nor shall any payments from the Company to Executive hereunder be reduced, offset or canceled by any compensation or fees earned by (whether or not paid in two equal installments, currently) or offered to Executive during the first such installment to be paid within five business days following the Bonus Payment Date for remainder of the fiscal year of the Company that includes the Date of Termination and by a subsequent employer or other Person (as defined below in Section 18(k) below) for which Executive performs services, including, but not limited to, consulting services.
(ii) If Executive's employment shall terminate upon his death or if the second Company shall terminate Executive's employment for Cause or due to Executive's Disability or Executive shall resign from his employment without Good Reason, in any such installment case during the Employment Period, the Company shall pay to be paid Executive (or, in the event of Executive's death, to his estate) the Accrued Obligations within five business thirty (30) days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination.
(iii) Except as specifically set forth in this Section 8(f), subject no termination benefits shall be payable to timely payment by Executive or in respect of all premiums, contributions and other co-payments required to be paid by senior executives of Executive's employment with the Company under or its Affiliates.
(iv) The Company shall have the terms of such plans as in effect from time right to timeapply and set off against the Accrued Obligations or any other amounts owing to Executive hereunder, any amounts owing by the Executive to the Company, whether pursuant to this Agreement or otherwise.
Appears in 3 contracts
Sources: Employment Agreement (Seaboard Corp /De/), Employment Agreement (Seaboard Corp /De/), Employment Agreement (Seaboard Corp /De/)
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's ’s employment by the Company Without Cause or a termination by Executive of his Executive’s resignation from employment for Good Reason during the Employment Period, the Company shall pay to Executive (or, following his death, to Executive's ’s estate), within thirty (30) within 30 days of the Date of Termination his Termination, (x) full his Base Salary through the Date of Termination, to the extent not previously paid; (y) the pro-rata amount of the Annual Bonus (based on the amount paid for the previous year) which is accrued through the date of termination; and (z) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) the terms hereof, and (z) payment for vacation paid time off accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "“Accrued Obligations"”). In addition, in the event of any such termination of Executive's ’s employment, provided if Executive executes and delivers to the Company a Release and Discharge of All Claims substantially in the form attached hereto (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement“Release”) in a form acceptable to within thirty (30) days after the CompanyDate of Termination, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefitsbenefits (provided, as liquidated damages:however, in the event of Executive’s death following the Date of Termination but prior to delivery of the executed Release, the following payments shall be paid to Executive’s estate, notwithstanding that the Release has not been executed):
(A) continued payments of the Executive’s Base Salary (at the Base SalarySalary being paid on the Date of Termination), for the longer of: (x) the remaining Employment Period (assuming Executive’s employment had not terminated) or (y) one (1) year (the “Severance Period”), payable in installments in accordance with the Company's ’s regular payroll policies, policies for the period beginning on one year after the Date of Termination and ending Termination, with the first installment being paid on the eighteen months anniversary of Company’s regular pay date following the day which is thirty (30) days after the Date of Termination (the "Severance Period"“Payment Commencement Date”) (with the first installment being the sum of the Base Salary installments from the Date of Termination through the Payment Commencement Date and with subsequent installments being based on the Base Salary);, and with the balance, if any, being paid pursuant to a lump sum payment on the one year anniversary date of the Date of Termination; and
(B) a portion the Executive’s Annual Bonus (at the amount of Executive's the Annual Bonus paid to the Executive for the fiscal year of the Company that includes prior to the Date of Termination, such portion to equal the product (such product, the "Pro Rata Bonus") of (1) the Bonus that which would have been payable paid to the Executive for such year had he remained employed Executive’s employment continued for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives Severance Period, duly apportioned for such year established by the Board or a committee thereof, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365any partial year, such amount to be payable to Executive within five business days following on the one year anniversary date of the Date of Termination; and
(C) the "Bonus Payment Date"Executive shall automatically vest in all employee welfare and benefit plans in which the Executive was participating as of the Date of Termination and such benefits shall be paid to Executive in accordance with the terms of such plans; and
(D) annual bonuses the Company shall provide outplacement services to Executive for such fiscal year are actually paid up to ninety (90) days.
(E) The Company and Executive agree that each payment made by the Company to its active executives;Executive pursuant to subsections (A) and (B) of this Section 8(f)(i) shall be deemed to be a separate and distinct payment for purposes of Internal Revenue Code Section 409A and the related regulations, as opposed to an annuity or other collective series of payments.
(CF) payment of an amount equal Notwithstanding anything to 150% of the Average Annual Bonus (as defined below)contrary contained herein, such to the extent the aggregate amount to be paid to the Executive pursuant to Subsections (A) and (B) of this Section 8(f)(i) during the six (6) months following the Date of Termination exceeds two (2) times the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Internal Revenue Code of 1986, as amended (“Code”), for the calendar year of such Date of Termination (the “401(a)(17) Limit”), then payment of such amount that is in excess of two equal installments, (2) times the first such installment to 401(a)(17) Limit shall not be paid within five business days during the sixth (6) months following the Bonus Payment Date for of Termination but instead shall be paid in a lump sum payment on the next day after the date which is six (6) months following the Date of Termination. Executive shall not have a duty to mitigate the costs to the Company under this Section 8(f)(i), nor shall any payments from the Company to Executive hereunder be reduced, offset or canceled by any compensation or fees earned by (whether or not paid currently) or offered to Executive during the remainder of the fiscal year of the Company that includes the Date of Termination and by a subsequent employer or other Person (as defined below in Section 18(k) below) for which Executive performs services, including, but not limited to, consulting services. The foregoing shall not relieve Executive of the second non-competition prohibitions provided in Section 10 below.
(ii) If Executive’s employment shall terminate upon his death or due to Executive’s Disability or Executive shall resign from his employment without Good Reason, in any such installment case during the Employment Period, the Company shall pay to be paid Executive (or, in the event of Executive’s death, to his estate) the Accrued Obligations within five business thirty (30) days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of . If the Company shall terminate Executive’s employment for Cause, the Company shall pay Executive the termination benefits, as provided in clauses (x) and (z) of Section 8(f)(i).
(iii) Except as specifically set forth in this Section 8(f), no termination benefits shall be payable to or in respect of Executive’s employment with the Company or its Affiliates.
(iv) The Company shall have the right to apply and set off against the Accrued Obligations or any other amounts owing to Executive hereunder, any amounts owing by the Executive to the Company, whether pursuant to this Agreement or otherwise. Notwithstanding the foregoing, such set off shall not accelerate the time or schedule of a payment of Deferred Compensation except as permitted under the terms of such plans as in effect from time to timeTreasury Regulation Section 1.409A-3(j)(4)(xiii).
Appears in 3 contracts
Sources: Employment Agreement (Seaboard Corp /De/), Employment Agreement (Seaboard Corp /De/), Employment Agreement (Seaboard Corp /De/)
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's employment by the Company Employer Without Cause or a termination by Executive of his employment for Good Reason during the Employment Period, the Company Employer shall pay to Executive his full Base Salary through the Date of Termination and an amount equal to the pro rata amount of annual incentive compensation for the portion of the fiscal year preceding the Date of Termination that would have been payable to Executive pursuant to Section 4(a) if he had remained employed for the entire fiscal year, determined on the basis of the actual performance achieved by Employer through the Date of Termination and the performance objectives established for such fiscal year, pro rated to reflect the calculation of such annual incentive compensation for the portion of the fiscal year preceding the Date of Termination. In addition, in the event of any such termination, Employer shall pay or, in the case of the Continued Benefits (as defined below), provide to Executive (or, following his death, to Executive's estate) within 30 days of the Date of Termination his (x) full Base Salary through the Date of Termination, (y) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) and (z) payment for vacation time accrued as of the Date of Termination but unused (such amounts under clauses (xdesignated beneficiary or beneficiaries), (y) and (z), collectively the "Accrued Obligations"). In addition, in the event of any such termination of Executive's employment, provided Executive executes and delivers to the Company a Release and Discharge of Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement) in a form acceptable to the Company, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefits, as liquidated damages:,
(A) continued payments of the his Average Base SalarySalary (as defined below), which shall be payable in installments in accordance with the Companyon Employer's regular payroll policiesdates, for the period beginning on the Date of Termination (as defined below) and ending on the eighteen months second anniversary of the Date of Termination (such period, the "Severance Period");) and
(B) a portion on the last day of Executive's Bonus for each calendar month included in the fiscal year of the Company that includes the Date of TerminationSeverance Period, such portion to equal the product (such product, the "Pro Rata Bonus") of (1) the Bonus that would have been payable to Executive for such year had he remained employed for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board or a committee thereof, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by the Company to its active executives;
(C) payment of an amount equal to 150% one-twelfth of the Average Annual Bonus (as defined below), such amount to be paid in two equal installments, the first such installment to be paid within five business days following the Bonus Payment Date for the fiscal year of the Company that includes the Date of Termination and the second such installment to be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(DC) continued coverage during the Severance Period for Executive and his eligible dependents under the CompanyEmployer's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive during the period commencing on the Termination Date and his eligible dependents participating in such plans immediately prior to ending on the Date earlier of Termination(i) Executive's 65th birthday and (ii) the date of - -- Executive's death, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of the Company Employer under the terms of such plans as in effect from time to time; provided that Employer may, at any time, pay to Executive, in a single lump sum -------- and in satisfaction of Employer's obligations under clauses (A) and (B) of this Section 7(f)(i), an amount equal to the present value (as determined by Employer using a discount rate equal to the then prevailing applicable federal short-term rate under section 1274(d) of the Internal Revenue Code of 1986, as amended) of the sum of the installments of the Average Base Salary and Average Annual Bonus then remaining to be paid to Executive pursuant to clauses (A) and (B) above. Executive shall not have a duty to mitigate the costs to Employer under this Section 7(f)(i), except that (i) payments of Base Salary and Average - Annual Bonus will be reduced, but not below zero, by the amount of any compensation earned by Executive (whether paid currently or deferred) during any portion of the Severance Period from any subsequent employer or other Person (as defined in Section 17(k) below) for which Executive performs services, including but not limited to consulting services, and (ii) Continued Benefits shall be -- reduced or canceled if comparable medical benefit coverage is provided or offered to Executive by any subsequent employer or other Person for which Executive performs services, including but not limited to consulting services, at any time after the Date of Termination.
Appears in 2 contracts
Sources: Employment Agreement (Dynatech Corp), Employment Agreement (Dynatech Corp)
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's employment by the Company Employer Without Cause or a termination by Executive of his employment for Good Reason during the Employment Period, the Company Employer shall pay to Executive his full Base Salary through the Date of Termination and an amount equal to the pro rata amount of annual incentive compensation for the portion of the fiscal year preceding the Date of Termination that would have been payable to Executive pursuant to Section 4(a) if he had remained employed for the entire fiscal year, determined on the basis of the actual performance achieved by Employer through the Date of Termination and the performance objectives established for such fiscal year, pro rated to reflect the calculation of such annual incentive compensation for the portion of the fiscal year preceding the Date of Termination. In addition, in the event of any such termination, Employer shall pay or, in the case of the Continued Benefits (as defined below), provide to Executive (or, following his death, to Executive's estate) within 30 days of the Date of Termination his (x) full Base Salary through the Date of Termination, (y) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) and (z) payment for vacation time accrued as of the Date of Termination but unused (such amounts under clauses (xdesignated beneficiary or beneficiaries), (y) and (z), collectively the "Accrued Obligations"). In addition, in the event of any such termination of Executive's employment, provided Executive executes and delivers to the Company a Release and Discharge of Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement) in a form acceptable to the Company, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefits, as liquidated damages:,
(A) continued payments of the his Average Base SalarySalary (as defined below), which shall be payable in installments in accordance with the Companyon Employer's regular payroll policiesdates, for the period beginning on the Date of Termination (as defined below) and ending on the eighteen months second anniversary of the Date of Termination (such period, the "Severance Period");) and
(B) a portion on the last day of Executive's Bonus for each calendar month included in the fiscal year of the Company that includes the Date of TerminationSeverance Period, such portion to equal the product (such product, the "Pro Rata Bonus") of (1) the Bonus that would have been payable to Executive for such year had he remained employed for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board or a committee thereof, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by the Company to its active executives;
(C) payment of an amount equal to 150% one-twelfth of the Average Annual Bonus (as defined below), such amount to be paid in two equal installments, the first such installment to be paid within five business days following the Bonus Payment Date for the fiscal year of the Company that includes the Date of Termination and the second such installment to be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(DC) continued coverage during the Severance Period for Executive and his eligible dependents under the CompanyEmployer's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive during the period commencing on the Termination Date and his eligible dependents participating in such plans immediately prior to ending on the Date earlier of Termination(i) Executive's 65th birthday and (ii) the - -- date of Executive's death, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of the Company Employer under the terms of such plans as in effect from time to time; provided that Employer may, at any time, pay to Executive, in a single lump sum -------- and in satisfaction of Employer's obligations under clauses (A) and (B) of this Section 7(f)(i), an amount equal to the present value (as determined by Employer using a discount rate equal to the then prevailing applicable federal short-term rate under section 1274(d) of the Internal Revenue Code of 1986, as amended) of the sum of the installments of the Average Base Salary and Average Annual Bonus then remaining to be paid to Executive pursuant to clauses (A) and (B) above. Executive shall not have a duty to mitigate the costs to Employer under this Section 7(f)(i), except that (i) payments of Base Salary and Average - Annual Bonus will be reduced, but not below zero, by the amount of any compensation earned by Executive (whether paid currently or deferred) during any portion of the Severance Period from any subsequent employer or other Person (as defined in Section 17(k) below) for which Executive performs services, including but not limited to consulting services, and (ii) Continued Benefits shall be -- reduced or canceled if comparable medical benefit coverage is provided or offered to Executive by any subsequent employer or other Person for which Executive performs services, including but not limited to consulting services, at any time after the Date of Termination.
Appears in 2 contracts
Sources: Employment Agreement (Dynatech Corp), Employment Agreement (Dynatech Corp)
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's ’s employment by the Company Without Cause or a termination by Executive of his Executive’s resignation from employment for Good Reason during the Employment Period, the Company shall pay to Executive (or, following his death, to Executive's ’s estate), within thirty (30) within 30 days of the Date of Termination his Termination, (x) full his Base Salary through the Date of Termination, to the extent not previously paid; (y) the pro-rata amount of the Annual Bonus (based on the amount paid for the previous year) which is accrued through the date of termination; and (z) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) the terms hereof, and (z) payment for vacation paid time off accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "“Accrued Obligations"”). In addition, in the event of any such termination of Executive's ’s employment, provided if Executive executes and delivers to the Company a Release and Discharge of All Claims substantially in the form attached hereto (that shall not impose upon “Release”) within 30 days after the Date of Termination (after giving effect to any time given to Executive any broader restrictive covenant to withdraw such Release under applicable State or post-employment limitation than those contained in this Agreement) in a form acceptable to the CompanyFederal laws), Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefitsbenefits (provided, as liquidated damages:however, in the event of Executive’s death following the Date of Termination but prior to delivery of the executed Release, the following payments shall be paid to Executive’s estate, notwithstanding that the Release has not been executed):
(A) continued payments of the Executive’s Base Salary (at the Base SalarySalary being paid on the Date of Termination), for the longer of: (x) the remaining Employment Period (assuming Executive’s employment had not terminated) or (y) six (6) months (the “Severance Period”), payable in installments in accordance with the Company's ’s regular payroll policies, policies for the period beginning on six months after the Date of Termination and ending Termination, with the first installment being paid on the eighteen months anniversary of Company’s regular pay date following the day which is 30 days after the Date of Termination (the "Severance Period"“Payment Commencement Date”) (with the first installment being the sum of the Base Salary installments from the Date of Termination through the Payment Commencement Date and with subsequent installments being based on the Base Salary);, and with the balance, if any, being paid pursuant to a lump sum payment on the one year anniversary date of the Date of Termination; and
(B) a portion the Executive’s Annual Bonus (at the amount of Executive's the Annual Bonus paid to the Executive for the fiscal year of the Company that includes prior to the Date of Termination, such portion to equal the product (such product, the "Pro Rata Bonus") of (1) the Bonus that which would have been payable paid to the Executive for such year had he remained employed Executive’s employment continued for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives Severance Period, duly apportioned for such year established by the Board or a committee thereof, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365any partial year, such amount to be payable to Executive within five business days following on the one year anniversary date (of the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by the Company to its active executives;Date of Termination; and
(C) payment of an amount equal to 150% the Executive shall automatically vest in all employee welfare and benefit plans in which the Executive was participating as of the Average Annual Bonus Date of Termination and such benefits shall be paid to Executive in accordance with the terms of such plans, including, without limitation, Options issued to Executive which shall immediately vest and shall be issued to Executive as if Executive completed his employment on the third anniversary of this Agreement; and
(as defined below)D) Notwithstanding anything to the contrary contained herein, such to the extent the aggregate amount to be paid to the Executive pursuant to Subsections (A) and (B) of this Section 5(f)(i) during the six (6) months following the Date of Termination exceeds two (2) times the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Internal Revenue Code of 1986, as amended (“Code”), for the calendar year of such Date of Termination (the “401(a)(17) Limit”), then payment of such amount that is in excess of two equal installments, (2) times the first such installment to 401(a)(17) Limit shall not be paid within five business days during the sixth (6) months following the Bonus Payment Date for of Termination but instead shall be paid in a lump sum payment on the next day after the date which is six (6) months following the Date of Termination. Executive shall not have a duty to mitigate the costs to the Company under this Section 5(f)(i), nor shall any payments from the Company to Executive hereunder be reduced, offset or canceled by any compensation or fees earned by (whether or not paid currently) or offered to Executive during the remainder of the fiscal year of the Company that includes the Date of Termination and by a subsequent employer or other Person (as defined below in Section 13(k) below) for which Executive performs services, including, but not limited to, consulting services. The foregoing shall not relieve Executive of the second non-competition prohibitions provided in Section 7 below.
(ii) If Executive’s employment shall terminate upon his death or due to Executive’s Disability, in any such installment case during the Employment Period, the Company shall pay to be paid Executive (or, in the event of Executive’s death, to his estate) the Accrued Obligations within five business thirty (30) days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of . If the Company shall terminate Executive’s employment for Cause, the Company shall pay Executive the termination benefits, as provided in clauses (x) and (z) of Section 5(f)(i).
(iii) Except as specifically set forth in this Section 5(f), no termination benefits shall be payable to or in respect of Executive’s employment with the Company or its Affiliates.
(iv) The Company shall have the right to apply and set off against the Accrued Obligations or any other amounts owing to Executive hereunder, any amounts owing by the Executive to the Company, whether pursuant to this Agreement or otherwise. Notwithstanding the foregoing, such set off shall not accelerate the time or schedule of a payment of Deferred Compensation except as permitted under the terms of such plans as in effect from time to timeTreasury Regulation Section 1.409A-3(j)(4)(xiii).
Appears in 2 contracts
Sources: Employment Agreement (Kogeto, Inc.), Employment Agreement (Kogeto, Inc.)
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's ’s employment by the Company Without without Cause or a termination by Executive of his employment Executive’s resignation for Good Reason during the Employment Period, the Company shall pay to Executive (orExecutive, following his death, to Executive's estate) within 30 15 days of the Date of Termination his (xor at such time as required under the applicable employee benefit plan or arrangement), her (w) full Base Salary through the Date of Termination, to the extent not previously paid, (yx) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) and 7(a), (zy) payment for vacation time accrued as of the Date of Termination but unused and (z) any other amount or benefit due under an employee benefit plan or arrangement maintained or provided by the Company; including the benefits and payments described in the second sentence of Section 8(j) (such amounts under clauses (w), (x), (y) and (z), collectively the "“Accrued Obligations"”). In addition, in the event of any such termination of Executive's ’s employment, provided Executive executes she shall be entitled to and delivers the Company shall provide the following payments and benefits:
(A) a lump-sum amount in cash equal to 100% of Executive’s Base Salary, paid within 15 days after termination;
(B) to the extent not yet paid, any annual bonus earned after calendar year 2005 for the calendar year that preceded the time of the termination during all of which Executive was employed by the Company;
(C) full vesting of Executive’s unvested accrued benefit under any non-qualified deferred compensation arrangement;
(D) the accelerated vesting of Executive’s equity compensation awards, as provided in Section 5(a), and the continued allocation of all dividends and dividend equivalents with respect to such awards prior to the actual distribution of the underlying shares to the Executive;
(E) continuation of group medical benefit coverage as provided under COBRA (or substantially equivalent alternative coverage) for a period of 24 months after Executive’s termination of employment; provided that the Company shall continue to pay, or reimburse Executive for, the Company’s cost (as if Executive were an active employee of the Company) (the “Medical Benefit”);
(F) a Release lump sum amount of any Retention Bonus (to the extent not previously paid), paid within 15 days after termination; and
(G) reimbursement for the cost of financial planning and Discharge of Claims (that shall not impose upon tax preparation services incurred by the Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement) in a form acceptable during the one year period after termination pursuant to the Company’s program made available to similarly situated executives.
(ii) If Executive dies, the Company terminates Executive’s employment for Cause or as a result of her Disability or Executive resigns without Good Reason, in each case during the Employment Period, the Company shall pay to Executive the Accrued Obligations. In addition, if Executive’s employment terminates as a result of her Disability during the Employment Period, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefits, benefits as liquidated damagessoon as reasonably practicable:
(A) the accelerated vesting of Executive’s equity compensation awards, as provided in Section 5(a), and the continued payments allocation of all dividends and dividend equivalents with respect to such awards prior to the actual distribution of the Base Salary, payable in installments in accordance with underlying shares to the Company's regular payroll policies, for the period beginning on the Date of Termination and ending on the eighteen months anniversary of the Date of Termination (the "Severance Period")Executive;
(B) a portion of Executive's Bonus for the fiscal year of the Company that includes Medical Benefit; and
(C) For 2 years following the Date of Termination, such portion to equal the product (such product, the "Pro Rata Bonus") life insurance coverage at a level commensurate with other former senior executive officers of (1) the Bonus that would have been payable to Executive for such year had he remained employed for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board or a committee thereof, multiplied by (2) a fraction, the numerator of which is equal to the number of days participating in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365plan.
(iii) Except as specifically set forth in this Section 8(f), such amount to no termination benefits shall be payable to Executive within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by or in respect of Executive’s employment with the Company to or its active executives;
(C) payment of an amount equal to 150% of the Average Annual Bonus (as defined below), such amount to be paid in two equal installments, the first such installment to be paid within five business days following the Bonus Payment Date for the fiscal year of the Company that includes the Date of Termination and the second such installment to be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of the Company under the terms of such plans as in effect from time to timeaffiliates.
Appears in 1 contract
Sources: Employment Agreement (Marsh & McLennan Companies, Inc.)
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's ’s employment by the Company Without Cause or a termination by Executive of his employment for Good Reason during the Employment Period, the Company shall pay to Executive (or, following his death, to Executive's ’s estate) within 30 days of the Date of Termination his (x) full Base Salary through the Date of Termination, (y) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) and (z) payment for vacation time accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "“Accrued Obligations"”). In addition, in the event of any such termination of Executive's ’s employment, provided Executive executes and delivers to the Company a Release and Discharge of Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement) in a form acceptable to the Company, Executive (or, following his death, Executive's ’s estate) shall be entitled to the following payments and benefits, as liquidated damages:
(A) continued payments of the Base Salary, payable in installments in accordance with the Company's ’s regular payroll policies, for the period beginning on the Date of Termination and ending on the eighteen months anniversary of the Date of Termination (the "“Severance Period"”);
(B) a portion of Executive's ’s Bonus for the fiscal year of the Company that includes the Date of Termination, such portion to equal the product (such product, the "“Pro Rata Bonus"”) of (1) the minimum Bonus that would have been payable to Executive for such year had he remained employed for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board or a committee thereofprovided in Section 4(a), multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five business days following the date (the "“Bonus Payment Date"”) annual bonuses for such fiscal year are actually paid by the Company to its active executives;
(C) payment of an amount equal to 150% of the Average Annual Severance Bonus (as defined below), such amount to be paid in two equal installments, the first such installment to be paid within five business days following the Bonus Payment Date for the fiscal year of the Company that includes the Date of Termination and the second such installment to be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's ’s medical and dental insurance plans referred to in Section 5 (the "“Continued Benefits"”) for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of the Company under the terms of such plans as in effect from time to time.
Appears in 1 contract
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's employment by the Company Employer Without Cause or a termination by Executive of his employment for Good Reason in either such case during the Employment PeriodPeriod (any such termination, the Company a "Qualifying Termination"), Employer shall pay to Executive (or, following his death, to Executive's estatebeneficiaries) within 30 days of the Date of Termination his (x) full Base Salary through the Date of TerminationTermination and, (y) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date as liquidated damages in respect of Termination that are subject to reimbursement pursuant to Section 6(b) claims based on provisions of this Agreement and (z) payment for vacation time accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "Accrued Obligations"). In addition, in the event of any such termination of Executive's employment, provided Executive executes and delivers to a general release of all claims substantially in the Company a Release and Discharge of Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement) in a form acceptable to the Companyattached hereto as Exhibit D, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefits, as liquidated damagesadditional amounts:
(A) continued payments of his Base Salary at the Base Salaryrate in effect hereunder immediately prior to the Qualifying Termination, which shall be payable in installments in accordance with the Companyon Employer's regular payroll policiesdates, for the period (such period, the "Severance Period") beginning on the Date of Termination (as defined below) and ending on the eighteen months later of (i) the second anniversary of the Commencement Date and (ii) the second anniversary of the Date of Termination (the "Severance Period");Termination; plus
(B) a portion of Executive's if the Company achieves the performance objectives established under the Bonus Plan for the fiscal year of the Company Bonus Year that includes the Date of Termination, an amount, payable in one lump sum as soon as reasonably practicable following receipt by the Board of the consolidated financial statements of the Company for such portion Bonus Year, equal to equal the product (such product, the "Pro Rata Bonus") of (1) the annual incentive Bonus that would have been payable to Executive for such year Bonus Year pursuant to Section 4(b) under the Bonus Plan had he remained employed for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board or a committee thereofBonus Year, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year Bonus Year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by the Company to its active executives;less
(C) payment the amount, if any, paid or payable to Executive under the terms of any severance plan, severance policy, severance program or severance practice of Employer or any of its Affiliates applicable to Executive, as in effect on the Date of Termination (a "Severance Program"); provided that Employer may, at any time, pay to Executive, in a single lump sum and in satisfaction of Employer's obligations under clauses (A) and (B) of this Section 7(f)(i), an amount equal to 150% (x) the installments of the Average Annual Bonus Base Salary clause (as defined below)A) above, such amount and the amount, if any, then remaining to be paid in two equal installmentsto Executive pursuant to clause (B) above, without discount for immediate payment, less (y) the first such installment amount, if any, remaining to be paid within five business days following to Executive pursuant to any Severance Program identified under clause (C) above. In addition, in the Bonus Payment Date for the fiscal year event of the Company that includes the Date of Termination and the second such installment to be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage a Qualifying Termination, Employer shall, during the Severance Period Period, provide Executive continued coverage under the Company's medical and dental insurance other health plans of Employer referred to in Section 5 (the "Continued Benefits") for in which Executive and his eligible dependents participating in such plans was a participant immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid during such period by senior executives of the Company Employer under the terms of such plans as in effect from time to time. Executive shall not have a duty to mitigate the costs to Employer under this Section 7(f)(i), except that Continued Benefits shall be canceled to the extent of any comparable benefit coverage offered to Executive during the Severance period by a subsequent employer or other Person (as defined below) for which Executive performs services, including but not limited to consulting services.
(ii) If Executive's employment shall terminate upon his death or due to his Disability or if Employer shall terminate Executive's employment for Cause or Executive shall terminate his employment without Good Reason during the Employment Period, Employer shall pay Executive (or, in the event of his death, his beneficiaries) his full Base Salary through the Date of Termination or as provided in Section 3 above. In addition, in the case of any such termination due to Executive's death or Disability, if the Company achieves the performance objectives established under the Bonus Plan for the Bonus Year that includes the Date of Termination, Employer shall pay Executive (or his beneficiaries if applicable) an amount, payable in one lump sum as soon as reasonably practicable following receipt by the Board of the consolidated financial statements of the Company for such Bonus Year, equal to the product of (1) the annual incentive Bonus that would have been payable to the Executive for such Bonus Year under the Bonus Plan pursuant to Section 4(b) hereof had he remained employed for the entire Bonus Year, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such Bonus Year that precede the Date of Termination (exclusive of any time between the onset of a physical or mental disability that prevents the performance by Executive of his duties hereunder and the resulting Date of Termination) and the denominator of which is equal to 365.
(iii) Executive shall be entitled to receive all amounts payable and benefits accrued under any otherwise applicable plan, policy, program or practice of Employer in which Executive was a participant during his employment with Employer in accordance with the terms thereof, provided that (x) Executive shall not be entitled to receive any payments or benefits under any such plan, policy, program or practice providing any bonus or incentive compensation (and the provisions of this Section 7(f) shall supersede the provisions of any such plan, policy, program or practice), and (y) the amount, if any, paid or payable to Executive under the terms of any such plan, policy, program or practice relating to severance shall reduce the amounts payable under Section 7(f)(i) as provided in clause (C) thereof.
Appears in 1 contract
Sources: Employment Agreement (Jafra Worldwide Holdings Lux Sarl)
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's employment by the Company Without Cause or a termination by Executive of his employment for Good Reason during the Employment Period, the Company shall pay to Executive his full Base Salary through the Date of Termination, an amount equal to the pro rata amount of annual incentive compensation for the portion of the fiscal year preceding the Date of Termination that would have been payable to Executive pursuant to Section 4(a) if he had remained employed for the entire fiscal year, determined on the basis of the actual performance achieved by the Company during such fiscal year and the performance objectives established for such fiscal year and any earned but not paid annual bonus for the fiscal year of the Company ending immediately prior to the Date of Termination. In addition, in the event of any such termination, the Company shall pay or, in the case of the Continued Benefits (as defined below), provide to Executive (or, following his death, to Executive's estate) within 30 days designated beneficiary or beneficiaries), as liquidated damages and in lieu of any other severance compensation or severance benefits to which Executive may be entitled under applicable law, and, in the case of the Date installment payments described in subparagraph (A) below, in consideration of Termination his Executive's covenants and obligations under Sections 8 through 13 hereof, inclusive, the following payments and benefits:
(xA) full payment of an aggregate amount equal to the annual rate of Executive's Base Salary through in effect immediately prior to the Date of Termination, such payment to be made in twelve equal monthly installments on the last day of each calendar month ending immediately after the Date of Termination;
(yB) reimbursement a lump sum payment of an amount equal to the actual amount of annual incentive compensation that was awarded to Executive for any unreimbursed business expenses incurred by Executive the Company's fiscal year ending immediately prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) and (z) payment for vacation time accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "Accrued Obligations"). In addition, in the event of any such termination of Executive's employment, provided Executive executes and delivers to the Company a Release and Discharge of Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement) in a form acceptable to the Company, Executive (or, following his deathif such termination occurs before the last day of the fiscal year of the Company that includes the Commencement Date, Executive's estate) shall be entitled to the following payments and benefits, as liquidated damages:target bonus for such fiscal year); and
(AC) continued payments of the Base Salary, payable in installments in accordance with coverage for Executive and his eligible dependents under the Company's regular payroll policies, for employee benefit and perquisite plans and programs referred to in Sections 5 and 6(a) (the "Continued Benefits") during the period beginning commencing on the Date of Termination and ending on the eighteen months first anniversary of the Date of Termination (the "Severance Period");
(B) a portion of Executive's Bonus for the fiscal year of the Company that includes the Date of Termination, such portion to equal the product (such product, the "Pro Rata Bonus") of (1) the Bonus that would have been payable to Executive for such year had he remained employed for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board or a committee thereof, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by the Company to its active executives;
(C) payment of an amount equal to 150% of the Average Annual Bonus (as defined below), such amount to be paid in two equal installments, the first such installment to be paid within five business days following the Bonus Payment Date for the fiscal year of the Company that includes the Date of Termination and the second such installment to be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of the Company under the terms of such plans and programs as in effect from time to time, provided that if such plans do not permit such coverage, Executive shall receive a lump sum cash payment equal to the value of such coverage. Executive shall not have a duty to mitigate the costs to the Company under this Section 7(f)(i), except that all or any of the Continued Benefits shall be reduced or canceled if comparable benefit coverage (determined on a benefit by benefit basis) is provided or offered to Executive by any subsequent employer or other Person for which Executive performs services, including but not limited to consulting services, at any time after the Date of Termination. In addition, in the event of a termination of Executive's employment by the Company Without Cause or a termination by Executive of his employment for Good Reason during the Employment Period, Gemplus' right to repurchase those Option Shares covered by Service Options with respect to which Gemplus' repurchase right would have lapsed on or prior to the expiration of the two year period immediately following the Date of Termination had Executive remained in the continuous employment of the Company during such period shall lapse immediately as of the Date of Termination. In the case of a termination of Executive's employment by the Company Without Cause or a termination by Executive of his employment for Good Reason within the two year period following a Change in Control, Gemplus' right to repurchase any Option Shares covered by Service Options shall lapse immediately.
(ii) If Executive's employment shall terminate upon his death or Disability or if Employer shall terminate Executive's employment for Cause or Executive shall terminate his employment without Good Reason during the Employment Period, Employer shall pay Executive his full Base Salary through the Date of Termination and, in the case of any such termination upon Executive's death or Disability, Executive shall be entitled to receive such death or Disability benefits, as applicable, as are provided under the terms of any employee and executive death benefit and disability plans and programs referred to in Section 5 or 6(a).
(iii) Except as specifically set forth in this Section 7(f), Executive shall be entitled to receive all amounts payable and benefits accrued under any otherwise applicable plan, policy, program or practice of the Company in which Executive was a participant during his employment with Employer in accordance with the terms thereof, provided that Executive shall not be entitled to receive any payments or benefits under any such plan, policy, program or practice providing any severance compensation or benefits (and the provisions of this Section 7(f) shall supersede the provisions of any such plan, policy, program or practice).
Appears in 1 contract
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's ’s employment by the Company Without Cause or a termination by Executive of his Executive’s resignation from employment for Good Reason during the Employment Period, the Company shall pay to Executive (or, following his death, to Executive's ’s estate), within thirty (30) within 30 days of the Date of Termination his Termination, (x) full his Base Salary through the Date of Termination, to the extent not previously paid; (y) the pro-rata amount of the Annual Bonus (based on the amount paid for the previous year) which is accrued through the date of termination; and (z) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) the terms hereof, and (z) payment for vacation paid time off accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "“Accrued Obligations"”). In addition, in the event of any such termination of Executive's ’s employment, provided if Executive executes and delivers to the Company a Release and Discharge of All Claims substantially in the form attached hereto (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement“Release”) in a form acceptable to within 30 days after the CompanyDate of Termination, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefitsbenefits (provided, as liquidated damages:however, in the event of Executive’s death following the Date of Termination but prior to delivery of the executed Release, the following payments shall be paid to Executive’s estate, notwithstanding that the Release has not been executed):
(A) continued payments of the Executive’s Base Salary (at the Base SalarySalary being paid on the Date of Termination), for the longer of: (x) the remaining Employment Period (assuming Executive’s employment had not terminated) or (y) one (1) year (the “Severance Period”), payable in installments in accordance with the Company's ’s regular payroll policies, policies for the period beginning on one year after the Date of Termination and ending Termination, with the first installment being paid on the eighteen months anniversary of Company’s regular pay date following the day which is 30 days after the Date of Termination (the "Severance Period"“Payment Commencement Date”) (with the first installment being the sum of the Base Salary installments from the Date of Termination through the Payment Commencement Date and with subsequent installments being based on the Base Salary);, and with the balance, if any, being paid pursuant to a lump sum payment on the one year anniversary date of the Date of Termination; and
(B) a portion the Executive’s Annual Bonus (at the amount of Executive's the Annual Bonus paid to the Executive for the fiscal year of the Company that includes prior to the Date of Termination, such portion to equal the product (such product, the "Pro Rata Bonus") of (1) the Bonus that which would have been payable paid to the Executive for such year had he remained employed Executive’s employment continued for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives Severance Period, duly apportioned for such year established by the Board or a committee thereof, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365any partial year, such amount to be payable to Executive within five business days following on the one year anniversary date of the Date of Termination; and
(C) the "Bonus Payment Date"Executive shall automatically vest in all employee welfare and benefit plans in which the Executive was participating as of the Date of Termination and such benefits shall be paid to Executive in accordance with the terms of such plans; and
(D) annual bonuses the Company shall provide outplacement services to Executive for such fiscal year are actually paid up to ninety (90) days; and
(E) The Company and Executive agree that each payment made by the Company to its active executives;Executive pursuant to subsections (A) and (B) of this Section 8(f)(i) shall be deemed to be a separate and distinct payment for purposes of Internal Revenue Code Section 409A and the related regulations, as opposed to an annuity or other collective series of payments; and
(CF) payment of an amount equal Notwithstanding anything to 150% of the Average Annual Bonus (as defined below)contrary contained herein, such to the extent the aggregate amount to be paid to the Executive pursuant to Subsections (A) and (B) of this Section 8(f)(i) during the six (6) months following the Date of Termination exceeds two (2) times the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Internal Revenue Code of 1986, as amended (“Code”), for the calendar year of such Date of Termination (the “401(a)(17) Limit”), then payment of such amount that is in excess of two equal installments, (2) times the first such installment to 401(a)(17) Limit shall not be paid within five business days during the sixth (6) months following the Bonus Payment Date for of Termination but instead shall be paid in a lump sum payment on the next day after the date which is six (6) months following the Date of Termination. Executive shall not have a duty to mitigate the costs to the Company under this Section 8(f)(i), nor shall any payments from the Company to Executive hereunder be reduced, offset or canceled by any compensation or fees earned by (whether or not paid currently) or offered to Executive during the remainder of the fiscal year of the Company that includes the Date of Termination and by a subsequent employer or other Person (as defined below in Section 18(k) below) for which Executive performs services, including, but not limited to, consulting services. The foregoing shall not relieve Executive of the second non-competition prohibitions provided in Section 10 below.
(ii) If Executive’s employment shall terminate upon his death or due to Executive’s Disability or Executive shall resign from his employment without Good Reason, in any such installment case during the Employment Period, the Company shall pay to be paid Executive (or, in the event of Executive’s death, to his estate) the Accrued Obligations within five business thirty (30) days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of . If the Company shall terminate Executive’s employment for Cause, the Company shall pay Executive the termination benefits, as provided in clauses (x) and (z) of Section 8(f)(i).
(iii) Except as specifically set forth in this Section 8(f), no termination benefits shall be payable to or in respect of Executive’s employment with the Company or its Affiliates.
(iv) The Company shall have the right to apply and set off against the Accrued Obligations or any other amounts owing to Executive hereunder, any amounts owing by the Executive to the Company, whether pursuant to this Agreement or otherwise. Notwithstanding the foregoing, such set off shall not accelerate the time or schedule of a payment of Deferred Compensation except as permitted under the terms of such plans as in effect from time to timeTreasury Regulation Section 1.409A-3(j)(4)(xiii).
Appears in 1 contract
Payments Upon Certain Terminations.
(i) In the event of a termination of Executive's ’s employment by the Company Without Cause or a termination by Executive of his Executive’s resignation from employment for Good Reason during the Employment Period, the Company shall pay to Executive Executive, within thirty (or, following his death, to Executive's estate30) within 30 days of the Date of Termination his Termination, (x) full his Base Salary through the Date of Termination, to the extent not previously paid; (y) the pro-rata amount of the Annual Bonus (based on the amount paid for the previous year) which is accrued through the date of termination; and (z) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) the terms hereof, and (z) payment for vacation paid time off accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "“Accrued Obligations"”). In addition, in the event of any such termination of Executive's ’s employment, provided if Executive executes and delivers to the Company a Release and Discharge of All Claims substantially in the form attached hereto (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement“Release”) in a form acceptable to within thirty (30) days after the CompanyDate of Termination, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefitsbenefits (provided, as liquidated damages:however, in the event of Executive’s death following the Date of Termination but prior to delivery of the executed Release, the following payments shall be paid to Executive’s estate, notwithstanding that the Release has not been executed):
(A) continued payments of the Executive’s Base Salary (at the Base SalarySalary being paid on the Date of Termination), for the longer of: (x) the remaining Employment Period (assuming Executive’s employment had not terminated) or (y) one year (the “Severance Period”), payable in installments in accordance with the Company's ’s regular payroll policies, policies for the period beginning on one year after the Date of Termination and ending Termination, with the first installment being paid on the eighteen months anniversary of Company’s regular pay date following the day which is thirty (30) days after the Date of Termination (the "Severance Period"“Payment Commencement Date”) (with the first installment being the sum of the Base Salary installments from the Date of Termination through the Payment Commencement Date and with subsequent installments being based on the Base Salary);, and with the balance, if any, being paid pursuant to a lump sum payment on the one year anniversary date of the Date of Termination; and
(B) a portion the Executive’s Annual Bonus (at the amount of Executive's the Annual Bonus paid to the Executive for the fiscal year of the Company that includes prior to the Date of Termination, such portion to equal the product (such product, the "Pro Rata Bonus") of (1) the Bonus that would have been payable to Executive for such year had he remained employed for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board or a committee thereof, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365Severance Period, such amount to be payable to Executive within five business on the one-year anniversary date of the Date of Termination; and
(C) the Executive shall automatically vest in all employee welfare and benefit plans in which the Executive was participating as of the Date of Termination and such benefits shall be paid to Executive in accordance with the terms of such plans; and
(D) the Company shall provide outplacement services to Executive for up to ninety (90) days following after the date Date of Termination; and
(E) the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid Company and Executive agree that each payment made by the Company to its active executives;Executive pursuant to subsections (A) and (B) of this Section 8(f)(i) shall be deemed to be a separate and distinct payment for purposes of Internal Revenue Code Section 409A and the related regulations, as opposed to an annuity or other collective series of payments.
(CF) payment of an amount equal Notwithstanding anything to 150% of the Average Annual Bonus (as defined below)contrary contained herein, such to the extent the aggregate amount to be paid to the Executive pursuant to Subsections ((A) and (B) of this Section 8(f)(i) during the six (6) months following the Date of Termination exceeds two (2) times the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Internal Revenue Code of 1986, as amended (“Code”), for the calendar year of such Date of Termination (the “401(a)(17) Limit”), then payment of such amount that is in excess of two equal installments, (2) times the first such installment to 401(a)(17) Limit shall not be paid within five business days during the sixth (6) months following the Bonus Payment Date for of Termination but instead shall be paid in a lump sum payment on the next day after the date which is six (6) months following the Date of Termination. Executive shall not have a duty to mitigate the costs to the Company under this Section 8(f)(i), nor shall any payments from the Company to Executive hereunder be reduced, offset or canceled by any compensation or fees earned by (whether or not paid currently) or offered to Executive during the remainder of the fiscal year of the Company that includes the Date of Termination and by a subsequent employer or other Person (as defined below in Section 18(k) below) for which Executive performs services, including, but not limited to, consulting services. The foregoing shall not relieve Executive of the second non-competition prohibitions provided in Section 10 below.
(ii) If Executive’s employment shall terminate upon his death or due to Executive’s Disability or Executive shall resign from his employment without Good Reason, in any such installment case during the Employment Period, the Company shall pay to be paid Executive (or, in the event of Executive’s death, to his estate) the Accrued Obligations within five business thirty (30) days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of . If the Company shall terminate Executive’s employment for Cause, the Company shall pay Executive the termination benefits as provided in clauses (x) and (z) of Section 8(f)(i).
(iii) Except as specifically set forth in this Section 8(f), no termination benefits shall be payable to or in respect of Executive’s employment with the Company or its Affiliates.
(iv) The Company shall have the right to apply and set off against the Accrued Obligations or any other amounts owing to Executive hereunder, any amounts owing by the Executive to the Company, whether pursuant to this Agreement or otherwise. Notwithstanding the foregoing, such set off shall not accelerate the time or schedule of a payment of Deferred Compensation except as permitted under the terms of such plans as in effect from time to time.Treasury Regulation Section 1.409A-3(j)(4)(xiii).
Appears in 1 contract
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's employment by the Company Without Cause or a termination by Executive of his employment for Good Reason during the Employment Period, the Company shall pay to Executive (or, following his death, to Executive's estate) within 30 days of the Date of Termination his (x) full Base Salary through the Date of Termination, (y) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) and (z) payment for vacation time accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "Accrued Obligations"). In addition, in the event of any such termination of Executive's employment, provided Executive executes and delivers to the Company a Release and Discharge of Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement) in a form acceptable to the Company, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefits, as liquidated damages:
(A) continued payments of the Base Salary, payable in installments in accordance with the Company's regular payroll policies, for the period beginning on the Date of Termination and ending on the eighteen months second anniversary of the Date of Termination or when Executive reaches the age of 60 years, whichever is earlier (the "Severance Period");
(B) a portion of Executive's Bonus for the fiscal year of the Company that includes the Date of Termination, such portion to equal the product (such product, the "Pro Rata Bonus") of (1) the Bonus that would have been payable to Executive for such year had he remained employed for the entire fiscal year and as though had Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board or a committee thereof, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by the Company to its active executives;
(C) payment of an amount equal to 150200% of the Average Annual Bonus (as defined below)) multiplied, in the event that the Date of Termination falls on a date after Executive reaches the age of 58 years, by a fraction, the numerator of which is equal to the total number of days (working or non-working) between the day Executive reaches the age of 58 and the Date of Termination and the denominator of which is equal to 730, such amount to be paid in two equal installments, the first such installment to be paid within five business days following the Bonus Payment Date for the fiscal year of the Company that includes the Date of Termination and the second such installment to be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; andTermination;
(D) continued coverage during the Severance Period under the Company's medical and dental health insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of the Company under the terms of such plans as in effect from time to time.the
Appears in 1 contract
Payments Upon Certain Terminations. In consideration of Executive’s acceptance of this Agreement and Executive’s continued employment through the Termination Date, if Beacon terminates Executive’s employment without Cause or Executive terminates Executive’s employment for Good Reason, Beacon shall provide to Executive the following benefits:
(a) eighteen (18) months of Executive’s annual base salary as in effect on the Termination Date, which shall be paid in equal periodic installments on Beacon’s regular payroll dates, beginning no later than the second payroll date following the date on which the Release (as defined below) becomes irrevocable;
(b) Executive’s cash incentive in an amount equal to (i) In the event of a termination 150% of Executive's employment by ’s target annual cash incentive opportunity under Beacon’s annual cash incentive plan, which shall be paid in equal periodic installments on Beacon’s regular payroll dates consistent with the Company Without Cause or a termination by Executive of his employment for Good Reason during payment schedule set forth in section (a) above and (ii) the Employment Period, the Company shall pay annual cash incentive that would otherwise be payable to Executive (orwith respect to any fiscal year which has been completed prior to the Termination Date but has not been paid as of the Termination Date, following his deathwhich shall be paid in a lump sum on the date such annual cash incentive is paid to other executives of Beacon in accordance with Beacon’s annual cash incentive plan, provided that the Release has become irrevocable by such date, and if the Release has not become irrevocable by such date, to Executive's estatebe paid in a lump sum no later than the second payroll date following the date on which the Release becomes irrevocable;
(c) within 30 days to the extent Executive elects health benefit continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), continued participation in Beacon’s health plans at the same rates provided to similarly situated active employees for a period ending on the earlier of (i) the 12 month anniversary of the Date of Termination his Date, and (ii) the date Executive becomes eligible for such coverage from a subsequent employer; provided, however, that (x) full Base Salary through Executive’s cost of such coverage shall be deducted from the Date of Termination, periodic installments described in Section 7(a) and (y) reimbursement for any unreimbursed business expenses incurred Beacon’s cost of providing the COBRA benefit less Executive’s contribution, shall be treated as taxable income to the Executive and reported accordingly;
(d) all unvested restricted stock units and stock options held by Executive prior under the Beacon Roofing Supply, Inc. Amended and Restated 2014 Stock Plan (together with any successor or other plan pursuant to which Executive receives restricted stock units or stock options, the “Plan”) at the Termination Date that are scheduled to vest within the twelve (12) month period following the Termination Date in accordance with the applicable vesting schedule (including any such restricted stock units and stock options that, pursuant to an applicable award agreement, would vest in connection with Executive’s termination of Termination employment without “cause” following a “change in control” or similar event, all determined pursuant to such award agreement) shall vest, or in the case of such awards that are subject to reimbursement pursuant performance-based vesting conditions, shall remain eligible to Section 6(bvest, on the date on which such restrictive stock units and stock options would have otherwise vested had Executive remained employed through such twelve (12) month period. All unvested restricted stock units and stock options held by Executive under the Plan that are scheduled to vest after the twelve (z12) payment for vacation time accrued month anniversary of the Termination Date shall be forfeited by Executive as of the Date of Termination but unused (Date. Beacon may withhold from any amounts payable under this Agreement such amounts under clauses (x)federal, (y) state or local deductions and (z), collectively the "Accrued Obligations"). In addition, in the event of any such termination of Executive's employment, provided Executive executes and delivers to the Company a Release and Discharge of Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement) in a form acceptable to the Company, Executive (or, following his death, Executive's estate) taxes as shall be entitled to the following payments and benefits, as liquidated damages:
(A) continued payments of the Base Salary, payable in installments in accordance with the Company's regular payroll policies, for the period beginning on the Date of Termination and ending on the eighteen months anniversary of the Date of Termination (the "Severance Period");
(B) a portion of Executive's Bonus for the fiscal year of the Company that includes the Date of Termination, such portion to equal the product (such product, the "Pro Rata Bonus") of (1) the Bonus that would have been payable to Executive for such year had he remained employed for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board or a committee thereof, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by the Company to its active executives;
(C) payment of an amount equal to 150% of the Average Annual Bonus (as defined below), such amount to be paid in two equal installments, the first such installment to be paid within five business days following the Bonus Payment Date for the fiscal year of the Company that includes the Date of Termination and the second such installment to be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives withheld pursuant to any applicable law or regulation. Executive’s receipt of the Company payments and benefits described in this Section 7 is expressly conditioned upon the Executive, within forty-five (45) calendar days (or such shorter period determined by Beacon) after the Termination Date, executing and delivering to Beacon a waiver and release of claims in favor of the Beacon Group and their respective directors, officers and employees in the form attached hereto as Exhibit (a “Release”), and not thereafter revoking the Release. For the avoidance of doubt, Executive’s termination of employment by reason of death, disability or retirement (each as defined in the applicable award agreement under the Plan) shall not be deemed a termination “without Cause” under this Agreement. Accordingly, in case of such death, disability or retirement, the treatment of Executive’s outstanding equity awards shall be governed by the terms of such plans as in effect from time to timethe applicable equity award agreement and Executive shall not additionally be eligible for the cash severance benefits hereunder.
Appears in 1 contract
Sources: Executive Severance and Restrictive Covenant Agreement (Beacon Roofing Supply Inc)
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's ’s employment by the Company Without Cause or a termination by Executive of his employment for Good Reason during the Employment Periodin accordance with Section 11(a), the Company shall pay to Executive Executive, within thirty (or, following his death, to Executive's estate30) within 30 days of the Date date of Termination termination, his (x) full Base Salary Salary, Car Allowance and Medical Allowance through the Date date of Terminationtermination, to the extent not previously paid, (y) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date date of Termination termination that are subject to reimbursement pursuant to Section 6(b9(a) and (z) payment for vacation time accrued as of the Date date of Termination termination but unused (such amounts under clauses (x), (y) and (z), collectively the "“Accrued Obligations"”). .
(ii) In addition, in the event of any such termination of Executive's employment’s employment (except in the event of termination due to “Disability” as defined below in Section 11(d)(iii)), provided the Company will request that Executive executes execute and delivers deliver to the Company a Separation Agreement and General Release substantially in the form approved by the Company (provided that the covenants contained in such Separation Agreement and Discharge of Claims (General Release that shall not impose upon Executive any broader restrictive covenant or restrict Executive’s post-employment limitation than competition and solicitation do not materially differ from those contained set forth in this Agreement) in a form acceptable (the “Separation Agreement”), and provided that Executive so executives and delivers the Separation Agreement to the Company, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefits, as liquidated damages:
(A) continued payments of the Base SalarySalary and Medical Allowance, payable in installments in accordance with the Company's ’s regular payroll policies, for the period beginning on the Date date of Termination termination and ending on the eighteen months one (1) year anniversary of the Date date of Termination termination (the "“Severance Period"”);
(B) a portion of Executive's ’s Annual Bonus for the fiscal year of the Company during which Executive was employed that includes the Date date of Terminationtermination, such portion to equal the product (such product, the "Pro “Pro-Rata Bonus"”) of (1) the Annual Bonus that would have been payable to Executive for such fiscal year had he Executive remained employed for the entire fiscal year and as though Executive and year, determined based on the extent to which the Company each achieved (but not exceeded) actually achieves the target performance objectives goals for such year established by the Board or a committee thereofpursuant to Section 5, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date date of Termination termination and the denominator of which is equal to 365, such amount to be payable to Executive within five (5) business days following the date (the "“Bonus Payment Date"”) annual bonuses for such fiscal year are actually paid by the Company to its active executives;
(C) payment of an amount equal to 150% of the Average Annual Bonus (as defined below), such amount to be paid in two equal installments, the first such installment to be paid within five business days following the Bonus Payment Date for the fiscal year of the Company that includes the Date of Termination and the second such installment to be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's ’s medical and dental insurance plans referred to in Section 5 9 (the "“Continued Benefits"”) for Executive and his eligible dependents participating in such plans immediately prior to the Date date of Terminationtermination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by active senior executives of the Company under the terms of such plans as in effect from time to time; and
(D) the services of a reputable outplacement agency as selected by the Chief Human Resources Officer of the Company. The services of such outplacement company shall be determined by the company at its discretion; however, the duration of such services shall be for a period of six (6) months. Executive shall not have a duty to mitigate the costs to the Company under this Section 11(d)(ii), nor shall any payments from the Company to Executive of Base Salary or Pro-Rata Bonus be reduced, offset or canceled by any compensation or fees earned by (whether or not paid currently) or offered to Executive during the Severance Period by a subsequent employer or other Person (as defined in Section 20(j) below) for which Executive performs services, including but not limited to consulting services. The foregoing notwithstanding, should Executive receive or be offered health or medical benefits coverage during the Severance Period by a subsequent employer or Person for whom Executive performs services, Executive shall notify the Company of this within seven (7) business days of such receipt or offer, as applicable, and all similar health and medical benefits coverage provided by the Company to Executive shall terminate as of the effective date of such new coverage.
(E) reimbursement of the legal fees incurred by Executive in connection with his review and execution of the aforementioned Separation Agreement and General Release, up to a limit of CHF 2,000.
(iii) Notwithstanding Section 11(d) (ii) above, if Executive’s employment shall terminate due to Executive’s “Disability” (as defined below) no termination benefits according to Section 11(d)(ii) above shall be payable to Executive. For purposes of this Agreement, “Disability” means a physical or mental disability that prevents or would prevent the performance by Executive of his duties hereunder for a continuous period of six (6) months or longer. The determination of Executive’s Disability will (i) be made by an independent physician agreed to by the parties, or if the parties are unable to agree within ten (10) days after a request for designation by a party, by an independent physician identified by the Company’s disability insurance provider, (ii) be final and binding on the parties hereto and (iii) be based on such competent medical evidence as shall be presented to such independent physician by Executive and/or the Company or by any physician or group of physicians or other competent medical experts employed by Executive and/or the Company to advise such independent physician. In the case of a conflict with any general or special law, this Section 11(d)(iii) shall not apply and any benefits due to Executive under Section 11(d)(ii) of this Agreement shall be against any insurance proceeds received by Executive by reason of such disability.
(iv) If Executive’s employment shall terminate upon his death or it the Company shall terminate Executive’s employment due to Executive’s Disability or Executive shall resign from his employment or otherwise terminate his employment, in any such case during the Employment Period, the Company shall pay to Executive (or, in the event of Executive’s death, to his estate) the Accrued Obligations within thirty (30) days following the date of termination, provided that in the event of Executive’s death, the said thirty (30)-day period for making such payment shall commence from the date of production to the Company of such evidence or information in respect of the Executive’s estate as the Company may require. In addition, if Executive’s employment shall terminate upon his death or be terminated by the Company due to Executive’s Disability during the Employment Period, the Company shall pay to Executive (or, in the event of Executive’s death, to his estate) the Pro-Rata Bonus, which shall be paid in accordance with the terms of the Bonus Plan.
(v) Except as specifically set forth in this Section 11(d) and Section 11(c) above, no termination benefits shall be payable to or in respect of Executive’s employment with the Company or its Affiliates.
Appears in 1 contract
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's employment by the Company Without Cause or a termination by Executive of his employment for Good Reason during the Employment Period, the Company shall pay to Executive (or, following his death, to Executive's estate) within 30 days of the Date of Termination his (x) full Base Salary through the Date of Termination, (y) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) and (z) payment for vacation time accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "Accrued Obligations"). In addition, in the event of any such termination of Executive's employment, provided Executive executes and delivers to the Company a Release and Discharge of Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement) in a form acceptable to the Company, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefits, as liquidated damages:
(A) continued payments of the Base Salary, payable in installments in accordance with the Company's regular payroll policies, for the period beginning on the Date of Termination and ending on the eighteen months anniversary of the Date of Termination November 30, 2004 (the "Severance Period");
(B) a portion of Executive's Bonus for the fiscal year of the Company that includes the Date of Termination, such portion to equal the product (such product, the "Pro Rata Bonus") of (1) the Bonus that would have been payable to Executive for such year had he remained employed for the entire fiscal year and as though had Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board or a committee thereof, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by the Company to its active executives;
(C) payment of an amount equal to 150% the product of (1) the Average Annual Bonus (as defined below)) multiplied by (2) a fraction, the numerator of which is equal to the total number of days (working or non-working) remaining between the Date of Termination and November 30, 2004, and the denominator of which is 365, such amount to be paid in two equal installments, the first such installment to be paid within five business days following the Bonus Payment Date for the fiscal year of the Company that includes the Date of Termination and the second such installment to be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; andTermination;
(D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of the Company under the terms of such plans as in effect from time to time.
Appears in 1 contract
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's ’s employment by the Company Without Cause or a termination by Executive of his Executive’s resignation from employment for Good Reason during the Employment Period, the Company shall pay to Executive (or, following his death, to Executive's ’s estate), within thirty (30) within 30 days of the Date of Termination his Termination, (x) full his Base Salary through the Date of Termination, to the extent not previously paid; (y) the pro-rata amount of the Annual Bonus (based on the amount paid for the previous year) which is accrued through the date of termination; and (z) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) the terms hereof, and (z) payment for vacation paid time off accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "“Accrued Obligations"”). In addition, in the event of any such termination of Executive's ’s employment, provided if Executive executes and delivers to the Company a Release and Discharge of All Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained substantially in this Agreement) in a the form acceptable to approved by the Company, Executive (or, following his death, Executive's ’s estate) shall be entitled to the following payments and benefits, as liquidated damages:
(A) continued payments of the Executive’s Base Salary (at the Base SalarySalary being paid on the Date of Termination), for the longer of: (x) the remaining Employment Period (assuming Executive’s employment had not terminated) or (y) one (1) year (the “Severance Period”), payable in installments in accordance with the Company's ’s regular payroll policies, policies for the period beginning on the Date of Termination and ending on the eighteen months anniversary of the Date of Termination (the "Severance Period");
(B) a portion of Executive's Bonus for the fiscal one year of the Company that includes after the Date of Termination, such portion with the balance, if any, being paid pursuant to equal a lump sum payment on the product one year anniversary date of the Date of Termination; and
(such product, the "Pro Rata Bonus") of (1B) the Executive’s Annual Bonus that (at the amount of the Annual Bonus paid to the Executive for the year prior to the Date of Termination) which would have been payable paid to the Executive for such year had he remained employed Executive’s employment continued for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives Severance Period, duly apportioned for such year established by the Board or a committee thereof, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365any partial year, such amount to be payable to Executive within five business days following on the one year anniversary date of the Date of Termination; and
(C) the "Bonus Payment Date"Executive shall automatically vest in all employee welfare and benefit plans in which the Executive was participating as of the Date of Termination and such benefits shall be paid to Executive in accordance with the terms of such plans; and
(D) annual bonuses the Company shall provide outplacement services to Executive for such fiscal year are actually paid up to ninety (90) days.
(E) The Company and Executive agree that each payment made by the Company to its active executives;Executive pursuant to subsections (A) and (B) of this Section 8(f)(i) shall be deemed to be a separate and distinct payment for purposes of Internal Revenue Code Section 409A and the related regulations, as opposed to an annuity or other collective series of payments.
(CF) payment of an amount equal Notwithstanding anything to 150% of the Average Annual Bonus (as defined below)contrary contained herein, such to the extent the aggregate amount to be paid to the Executive pursuant to Subsections (A) and (B) of this Section 8(f)(i) during the six (6) months following the Date of Termination exceeds two (2) times the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Internal Revenue Code of 1986, as amended (“Code”), for the calendar year of such Date of Termination (the “401(a)(17) Limit”), then payment of such amount that is in excess of two equal installments, (2) times the first such installment to 401(a)(17) Limit shall not be paid within five business days during the sixth (6) months following the Bonus Payment Date for of Termination but instead shall be paid in a lump sum payment on the next day after the date which is six (6) months following the Date of Termination. Executive shall not have a duty to mitigate the costs to the Company under this Section 8(f)(i), nor shall any payments from the Company to Executive hereunder be reduced, offset or canceled by any compensation or fees earned by (whether or not paid currently) or offered to Executive during the remainder of the fiscal year of the Company that includes the Date of Termination and by a subsequent employer or other Person (as defined below in Section 18(k) below) for which Executive performs services, including, but not limited to, consulting services.
(ii) If Executive’s employment shall terminate upon his death or if the second Company shall terminate Executive’s employment for Cause or due to Executive’s Disability or Executive shall resign from his employment without Good Reason, in any such installment case during the Employment Period, the Company shall pay to be paid Executive (or, in the event of Executive’s death, to his estate) the Accrued Obligations within five business thirty (30) days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination.
(iii) Except as specifically set forth in this Section 8(f), subject no termination benefits shall be payable to timely payment by Executive or in respect of all premiums, contributions and other co-payments required to be paid by senior executives of Executive’s employment with the Company or its Affiliates.
(iv) The Company shall have the right to apply and set off against the Accrued Obligations or any other amounts owing to Executive hereunder, any amounts owing by the Executive to the Company, whether pursuant to this Agreement or otherwise. Notwithstanding the foregoing, such set off shall not accelerate the time or schedule of a payment of Deferred Compensation except as permitted under the terms of such plans as in effect from time to timeTreasury Regulation Section 1.409A-3(j)(4)(xiii).
Appears in 1 contract
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's employment by the Company Without Cause or a termination by Executive of his Executive's resignation from employment for Good Reason during the Employment Period, the Company shall pay to Executive (or, following his death, to Executive's estate), within thirty (30) within 30 days of the Date of Termination his Termination, (x) full his Base Salary through the Date of Termination, to the extent not previously paid; (y) the pro-rata amount of the Annual Bonus (based on the amount paid for the previous year) which is accrued through the date of termination; and (z) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) the terms hereof, and (z) payment for vacation paid time off accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "Accrued Obligations"). In addition, in the event of any such termination of Executive's employment, provided if Executive executes and delivers to the Company a Release and Discharge of All Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained substantially in this Agreement) in a the form acceptable to approved by the Company, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefits, as liquidated damages:
(A) continued payments of the Executive's Base Salary (at the Base SalarySalary being paid on the Date of Termination), for the longer of: (x) the remaining Employment Period (assuming Executive's employment had not terminated) or (y) one (1) year (the "Severance Period"), payable in installments in accordance with the Company's regular payroll policies, policies for the period beginning on the Date of Termination and ending on the eighteen months anniversary of the Date of Termination (the "Severance Period");
(B) a portion of Executive's Bonus for the fiscal one year of the Company that includes after the Date of Termination, such portion with the balance, if any, being paid pursuant to equal a lump sum payment on the product one year anniversary date of the Date of Termination; and
(such product, the "Pro Rata Bonus") of (1B) the Executive's Annual Bonus that (at the amount of the Annual Bonus paid to the Executive for the year prior to the Date of Termination) which would have been payable paid to the Executive for such year had he remained employed Executive's employment continued for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives Severance Period, duly apportioned for such year established by the Board or a committee thereof, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365any partial year, such amount to be payable to Executive within five business days following on the one year anniversary date (of the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by the Company to its active executives;Date of Termination; and
(C) payment the Executive shall receive "Years of an amount equal Service" credit for the number of years comprising the Severance Period for purposes of accruing the Executive's benefit under the Company's Executive Retirement Plan and the Final Average Earnings thereunder for the Severance Period shall be determined based on the Base Salary being paid on the Date of Termination and the Annual Bonus paid to 150% the Executive for the year prior to the Date of Termination;
(D) the Executive shall automatically vest in all employee welfare and benefit plans in which the Executive was participating as of the Average Annual Bonus Date of Termination and such benefits shall be paid to Executive in accordance with the terms of such plans; and
(as defined belowE) the Company shall provide outplacement services to Executive for up to ninety (90) days. Executive shall not have a duty to mitigate the costs to the Company under this Section 8(f)(i), such amount nor shall any payments from the Company to Executive hereunder be reduced, offset or canceled by any compensation or fees earned by (whether or not paid in two equal installments, currently) or offered to Executive during the first such installment to be paid within five business days following the Bonus Payment Date for remainder of the fiscal year of the Company that includes the Date of Termination and by a subsequent employer or other Person (as defined below in Section 18(k) below) for which Executive performs services, including, but not limited to, consulting services.
(ii) If Executive's employment shall terminate upon his death or if the second Company shall terminate Executive's employment for Cause or due to Executive's Disability or Executive shall resign from his employment without Good Reason, in any such installment case during the Employment Period, the Company shall pay to be paid Executive (or, in the event of Executive's death, to his estate) the Accrued Obligations within five business thirty (30) days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination.
(iii) Except as specifically set forth in this Section 8(f), subject no termination benefits shall be payable to timely payment by Executive or in respect of all premiums, contributions and other co-payments required to be paid by senior executives of Executive's employment with the Company under or its Affiliates.
(iv) The Company shall have the terms of such plans as in effect from time right to timeapply and set off against the Accrued Obligations or any other amounts owing to Executive hereunder, any amounts owing by the Executive to the Company, whether pursuant to this Agreement or otherwise.
Appears in 1 contract
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's employment by the Company Without Cause or a termination by Executive of his Executive's resignation from employment for Good Reason during the Employment Period, the Company shall pay to Executive (or, following his death, to Executive's estate), within thirty (30) within 30 days of the Date of Termination his Termination, (x) full his Base Salary through the Date of Termination, to the extent not previously paid; (y) the pro-rata amount of the Annual Bonus (based on the amount paid for the previous year) which is accrued through the date of termination; and (z) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) the terms hereof, and (z) payment for vacation paid time off accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "Accrued Obligations"). In addition, in the event of any such termination of Executive's employment, provided if Executive executes and delivers to the Company a Release and Discharge of All Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained substantially in this Agreement) in a the form acceptable to approved by the Company, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefits, as liquidated damages:
(A) continued payments of the Executive's Base Salary (at the Base SalarySalary being paid on the Date of Termination), for the longer of: (x) the remaining Employment Period or (y) one (1) year (the "Severance Period"), payable in installments in accordance with the Company's regular payroll policies, policies for the period beginning on the Date of Termination and ending on the eighteen months anniversary of the Date of Termination (the "Severance Period");
(B) a portion of Executive's Bonus for the fiscal one year of the Company that includes after the Date of Termination, such portion with the balance, if any, being paid pursuant to equal a lump sum payment on the product one year anniversary date of the Date of Termination; and
(such product, the "Pro Rata Bonus") of (1B) the Executive's Annual Bonus that (at the amount of the Annual Bonus paid to the Executive for the year prior to the Date of Termination) which would have been payable paid to the Executive for such year had he remained employed Executive's employment continued for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives Severance Period, duly apportioned for such year established by the Board or a committee thereof, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365any partial year, such amount to be payable to Executive within five business days following on the one year anniversary date (of the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by the Company to its active executives;Date of Termination; and
(C) payment the Executive shall receive "Years of an amount equal Service" credit for the number of years comprising the Severance Period for purposes of accruing the Executive's benefit under the Company's Executive Retirement Plan and the Final Average Earnings thereunder for the Severance Period shall be determined based on the Base Salary being paid on the Date of Termination and the Annual Bonus paid to 150% the Executive for the year prior to the Date of Termination;
(D) the Executive shall automatically vest in all employee welfare and benefit plans in which the Executive was participating as of the Average Annual Bonus Date of Termination and such benefits shall be paid to Executive in accordance with the terms of such plans;
(as defined belowE) the Company shall provide outplacement services to Executive for up to ninety (90) days. Executive shall not have a duty to mitigate the costs to the Company under this Section 8(f)(i), such amount nor shall any payments from the Company to Executive hereunder be reduced, offset or canceled by any compensation or fees earned by (whether or not paid in two equal installments, currently) or offered to Executive during the first such installment to be paid within five business days following the Bonus Payment Date for remainder of the fiscal year of the Company that includes the Date of Termination and by a subsequent employer or other Person (as defined below in Section 18(k) below) for which Executive performs services, including, but not limited to, consulting services.
(ii) If Executive's employment shall terminate upon his death or if the second Company shall terminate Executive's employment for Cause or due to Executive's Disability or Executive shall resign from his employment without Good Reason, in any such installment case during the Employment Period, the Company shall pay to be paid Executive (or, in the event of Executive's death, to his estate) the Accrued Obligations within five business thirty (30) days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination.
(iii) Except as specifically set forth in this Section 8(f), subject no termination benefits shall be payable to timely payment by Executive or in respect of all premiums, contributions and other co-payments required to be paid by senior executives of Executive's employment with the Company under or its Affiliates.
(iv) The Company shall have the terms of such plans as in effect from time right to timeapply and set off against the Accrued Obligations or any other amounts owing to Executive hereunder, any amounts owing by the Executive to the Company, whether pursuant to this Agreement or otherwise.
Appears in 1 contract
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's ’s employment by the Company Without without Cause or a termination by the Executive of his employment for Good Reason during the Employment Period, the Company shall pay to Executive (or, following his death, to Executive's ’s estate), within thirty (30) within 30 days of the Date of Termination his Termination, (x) full his Base Salary through the Date of Termination, to the extent not previously paid; and (y) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) the terms hereof, and (z) payment for vacation paid time off accrued but unused as of the Date of Termination but unused (such amounts under clauses (x), (y) and (zy), collectively the "“Accrued Obligations"”). In addition, in the event of any such termination of Executive's ’s employment, provided if Executive executes and delivers to the Company a Release and Discharge of All Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained substantially in this Agreement) in a the form acceptable to approved by the Company, Executive (or, following his death, Executive's ’s estate) shall be entitled to the following payments and benefits, as liquidated damages:
i) Two times (A2x) continued payments the sum of (x) the Executive’s Base Salary, payable and (y) the Target Annual Bonus for the year of termination (the “Severance Payment”);
ii) A pro rata bonus amount of Annual Bonus for the year of termination (based on the number of days employed in installments the fiscal year and based on performance achieved through the Date of Termination);
iii) A cash payment equal to twenty-four (24) months times the monthly cost Executive would incur if Executive elected to receive COBRA coverage under all Company group health plans under which Executive is receiving coverage at the time of termination, and Executive will be permitted (but not required) to elect COBRA coverage under such plan or plans for any period of time up to the maximum permitted under such plan or plans;
iv) The Executive shall automatically vest in all employee welfare and benefit plans in which the Executive was participating as of the Date of Termination, and such benefits shall be paid to Executive in accordance with the Company's regular payroll policiesterms of such plans;
v) Unless otherwise provided in an equity award agreement, for the period beginning on the Date of Termination and ending on the eighteen months anniversary Executive shall be fully vested as of the Date of Termination in any and all equity awards (the "Severance Period");
(Bincluding but not limited to stock options and restricted stock) a portion of Executive's Bonus for the fiscal year of the Company that includes the held by Executive immediately prior to such Date of Termination, such portion . Executive shall not have a duty to equal mitigate the product (such product, the "Pro Rata Bonus") of (1) the Bonus that would have been payable costs to Executive for such year had he remained employed for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board or a committee thereofunder this Section 7(f)(i), multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by nor shall any payments from the Company to its active executives;Executive hereunder be reduced, offset, or canceled by any compensation or fees earned by Executive from a subsequent employer or other Person for which Executive performs services, including, but not limited to, consulting services.
ii) If Executive’s employment shall terminate upon his death or if the Company shall terminate Executive’s employment due to Executive’s Disability, in any such case during the Employment Period, the Company shall pay to Executive (Cor, in the event of Executive’s death, to his estate) payment the Accrued Obligations plus a pro rata amount of an amount equal to 150% of the Average Annual Bonus (as defined below), such amount to be paid in two equal installments, the first such installment to be paid Section 7(e)((i)(2) above) within five business thirty (30) days following the Bonus Payment Date for the fiscal year of the Company that includes the Date of Termination and the second such installment to be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination.
iii) In the event of Executive’s termination of employment for any other reason, subject to timely payment including, without limitation, termination by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of the Company under for Cause or voluntary termination by the terms Executive, the Company shall pay to Executive the Accrued Obligations within thirty (30) days following the Date of such plans Termination.
iv) Except as specifically set forth in effect from time this Section 7(e), no termination benefits shall be payable to timeor in respect of Executive’s employment with the Company or its Affiliates.
v) The Company shall have the right to apply and set off against the Accrued Obligations or any other amounts owing to Executive hereunder, any amounts owing by the Executive to the Company, whether pursuant to this Agreement or otherwise.
Appears in 1 contract
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's employment by the Company Employer Without Cause or a termination by Executive of his employment for Good Reason during the Employment Period, the Company Employer shall pay to Executive his full Base Salary through the Date of Termination and an amount equal to the pro rata amount of annual incentive compensation for the portion of the fiscal year preceding the Date of Termination that would have been payable to Executive pursuant to Section 4(a) if he had remained employed for the entire fiscal year, determined on the basis of the actual performance achieved by Employer through the Date of Termination and the performance objectives established for such fiscal year, pro rated to reflect the calculation of such annual incentive compensation for the portion of the fiscal year preceding the Date of Termination. In addition, in the event of any such termination, Employer shall pay or, in the case of the Continued Benefits (as defined below), provide to Executive (or, following his death, to Executive's estate) within 30 days of the Date of Termination his (x) full Base Salary through the Date of Termination, (y) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) and (z) payment for vacation time accrued as of the Date of Termination but unused (such amounts under clauses (xdesignated beneficiary or beneficiaries), (y) and (z), collectively the "Accrued Obligations"). In addition, in the event of any such termination of Executive's employment, provided Executive executes and delivers to the Company a Release and Discharge of Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement) in a form acceptable to the Company, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefits, as liquidated damages:,
(A) continued payments of the his Average Base SalarySalary (as defined below), which shall be payable in installments in accordance with the Companyon Employer's regular payroll policiesdates, for the period beginning on the Date of Termination (as defined below) and ending on the eighteen months second anniversary of the Date of Termination (such period, the "Severance Period");) and
(B) a portion on the last day of Executive's Bonus for each calendar month included in the fiscal year of the Company that includes the Date of TerminationSeverance Period, such portion to equal the product (such product, the "Pro Rata Bonus") of (1) the Bonus that would have been payable to Executive for such year had he remained employed for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board or a committee thereof, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by the Company to its active executives;
(C) payment of an amount equal to 150% one-twelfth of the Average Annual Bonus (as defined below), such amount to be paid in two equal installments, the first such installment to be paid within five business days following the Bonus Payment Date for the fiscal year of the Company that includes the Date of Termination and the second such installment to be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(DC) continued coverage during the Severance Period for Executive and his eligible dependents under the CompanyEmployer's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive during the period commencing on the Termination Date and his eligible dependents participating in such plans immediately prior to ending on the Date earlier of Termination(i) Executive's 65th birthday and (ii) the date of - -- Executive's death, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of the Company Employer under the terms of such plans as in effect from time to time; provided that Employer may, at any time, pay to Executive, in a single lump sum -------- and in satisfaction of Employer's obligations under clauses (A) and (B) of this Section 7(f)(i), an amount equal to the present value (as determined by Employer using a discount rate equal to the then prevailing applicable federal short-term rate under section 1274(d) of the Code) of the sum of the installments of the Average Base Salary and Average Annual Bonus then remaining to be paid to Executive pursuant to clauses (A) and (B) above. Executive shall not have a duty to mitigate the costs to Employer under this Section 7(f)(i), except that (i) payments of Base Salary and Average - Annual Bonus will be reduced, but not below zero, by the amount of any compensation earned by Executive (whether paid currently or deferred) during any portion of the Severance Period from any subsequent employer or other Person (as defined in Section 17(k) below) for which Executive performs services, including but not limited to consulting services, and (ii) Continued Benefits shall be -- reduced or canceled if comparable medical benefit coverage is provided or offered to Executive by any subsequent employer or other Person for which Executive performs services, including but not limited to consulting services, at any time after the Date of Termination.
Appears in 1 contract
Sources: Employment Agreement (Dynatech Corp)
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's ’s employment by the Company Without Cause or a termination by Executive of his employment for Good Reason during the Employment PeriodCause, the Company shall pay to Executive (or, following his death, to Executive's ’s estate) within 30 thirty (30) days of the Date of Termination his Termination, (x) full his Base Salary through the Date of Termination, to the extent not previously paid; (y) the pro-rata amount of the Annual Bonus (based on the amount paid for the previous year or that would have been paid but for all or a portion of such Annual Bonus not being paid due to is being 162(m) Excess Compensation) which is accrued through the date of termination); and (z) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) the terms hereof, and (z) payment for vacation time accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "“Accrued Obligations"”). In addition, in the event of any such termination of Executive's ’s employment, provided if Executive executes and delivers to the Company a Release and Discharge of All Claims substantially in the form approved attached hereto (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement“Release”) in a form acceptable to within thirty (30) days after the Company, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefits, as liquidated damages:Date of
(A) continued payments of an amount equal to the Executive’s Base Salary (at the Base SalarySalary being paid on the Date of Termination) for eighteen (18) months, payable in installments in accordance with the Company's ’s regular payroll policies, for with the period beginning first installment being paid on the Date of Termination and ending on Company’s regular pay date following the eighteen months anniversary of day which is thirty (30) days after the Date of Termination (the "Severance Period"“Payment Commencement Date”) (with the first installment being the sum of the Base Salary installments from the Date of Termination through the Payment Commencement Date, and with subsequent installments being based on the Base Salary);; and
(B) a portion lump sum payment equal to 1.5 times the average of Executive's Bonus the bonuses paid to Executive for the fiscal year of the Company that includes four (4) calendar years prior to the Date of Termination, such portion to equal the product Termination (such product, the "Pro Rata Bonus") of (1) the Bonus or that would have been payable to Executive paid but for such year had he remained employed for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board all or a committee thereof, multiplied by (2portion of such bonuses not being paid due to such amounts being 162(m) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by the Company to its active executives;
(C) payment of an amount equal to 150% of the Average Annual Bonus (as defined belowExcess Compensation), such amount to be paid in two equal installmentsto Executive on the eighteen (18) month anniversary date of the Date of Termination.
(C) The Company and Executive agree that each payment made by the Company to Executive pursuant to subsections (A) and (B) of this Section 8(f)(i) shall be deemed to be a separate and distinct payment for purposes of Internal Revenue Code Section 409A and the related regulations, as opposed to an annuity or other collective series of payments.
(D) Notwithstanding anything to the first such installment contrary contained herein, to the extent the aggregate amount to be paid within five business days to the Executive pursuant to subsections (A) and (B) of this Section 8(f)(i) during the six (6) months following the Bonus Payment Date of Termination exceeds two (2) times the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Internal Revenue Code of 1986, as amended (“Code”), for the calendar year of such Date of Termination (the “401(a)(17) Limit”), then payment of such amount that is in excess of two (2) times the 401(a)(17) Limit shall not be paid during the sixth (6) months following the Date of Termination but instead shall be paid in a lump sum payment on the next day after the date which is six (6) months following the Date of Termination.
(E) Notwithstanding anything to the contrary contained herein, to the extent any amount set forth in clause (y) of this Section 8(f)(i) or subsections (A) and (B) of this Section 8(f)(i) constitutes 162(m) Excess Compensation, no such 162(m) Excess Compensation shall be paid and, in lieu thereof, the Company shall make a Company 162(m) Contribution pursuant to the Post-2018 Deferred Compensation Plan to the Account of Executive thereunder. Executive has been furnished a copy of the Post-2018 Non-Qualified Deferred Compensation Plan and Executive shall not have a duty to mitigate the costs to the Company under this Section 8(f)(i), nor shall any payments from the Company to Executive hereunder be reduced, offset or canceled by any compensation or fees earned by (whether or not paid currently) or offered to Executive during the remainder of the fiscal year of the Company that includes the Date of Termination and by a subsequent the second Company or other Person (as defined below in Section 18(k) below) for which Executive performs services, including, but not limited to, consulting services.
(ii) If Executive’s employment shall terminate upon his death or if the Company shall terminate Executive’s employment for Cause or due to Executive’s Disability, or Executive shall resign from his employment, in any such installment case during the Employment Period, the Company shall pay to be paid Executive (or, in the event of Executive’s death, to his estate) the Accrued Obligations within five business thirty (30) days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination.
(iii) Except as specifically set forth in this Section 8(f), subject no termination benefits shall be payable to timely payment by Executive or in respect of all premiums, contributions and other co-payments required to be paid by senior executives of Executive’s employment with the Company under or its affiliates.
(iv) The Company shall have the terms of such plans as in effect from time right to timeapply and set off against the Accrued Obligations or any other amounts owing to Executive hereunder, any amounts owing by the Executive to the Company, whether pursuant to this Agreement or otherwise.
Appears in 1 contract
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's ’s employment by the Company Without Cause or a termination by Executive of his employment for Good Reason during the Employment Period, the Company shall pay to Executive (or, following his death, to Executive's ’s estate) within 30 days of the Date of Termination his (x) full Base Salary through the Date of Termination, (y) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) and (z) payment for vacation time accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "“Accrued Obligations"”). In addition, in the event of any such termination of Executive's ’s employment, provided Executive executes and delivers to the Company a Release and Discharge of Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement) in a form acceptable to the Company, Executive (or, following his death, Executive's ’s estate) shall be entitled to the following payments and benefits, as liquidated damages:
(A) continued payments of the Base Salary, payable in installments in accordance with the Company's ’s regular payroll policies, for the period beginning on the Date of Termination and ending on the eighteen months anniversary of the Date of Termination (the "“Severance Period"”);
(B) a portion of Executive's ’s Bonus for the fiscal year of the Company that includes the Date of Termination, such portion to equal the product (such product, the "“Pro Rata Bonus"”) of (1) the Bonus that would have been payable to Executive for such year had he remained employed for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board or a committee thereof, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five business days following the date (the "“Bonus Payment Date"”) annual bonuses for such fiscal year are actually paid by the Company to its active executives;
(C) payment of an amount equal to 150% of the Average Annual Bonus (as defined below), such amount to be paid in two equal installments, the first such installment to be paid within five business days following the Bonus Payment Date for the fiscal year of the Company that includes the Date of Termination and the second such installment to be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's ’s medical and dental insurance plans referred to in Section 5 (the "“Continued Benefits"”) for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of the Company under the terms of such plans as in effect from time to time.
Appears in 1 contract
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's ’s employment by the Company Without Cause or a termination by Executive of his employment for Good Reason during the Employment Period, the Company shall pay to Executive (or, following his death, to Executive's estatex) within 30 thirty (30) days of the Date of Termination Termination, his (x) full Base Salary through the Date of Termination, to the extent not previously paid; (y) the pro-rata amount of the Annual Bonus (based on the amount paid for the previous year which is accrued through the Date of Termination); and (z) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) the terms hereof, and (z) payment for vacation paid time off accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "“Accrued Obligations"”). In addition, in the event of any such termination of Executive's employment’s employment by the Company Without Cause, provided if Executive executes and delivers to the Company a Release and Discharge of All Claims substantially in the form attached hereto (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement“Release”) in a form acceptable to within thirty (30) days after the CompanyDate of Termination, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefitsbenefits (provided, as liquidated damages:however, in the event of Executive’s death following the Date of Termination but prior to delivery of the executed Release, the following payments shall be paid to Executive’s estate, notwithstanding that the Release has not been executed):
(A) continued payments of the Executive’s Base Salary (at the Base SalarySalary being paid on the Date of Termination), for the remaining Employment Period (assuming Executive’s employment had not terminated), but for not less than one year, payable in installments in accordance with the Company's ’s regular payroll policies, for with the period beginning first installment being paid on the Date of Termination and ending on Company’s regular pay date following the eighteen months anniversary of day which is thirty (30) days after the Date of Termination (the "Severance Period"“Payment Commencement Date”) (with the first installment being the sum of the Base Salary installments from the Date of Termination through the Payment Commencement Date and with subsequent installments being based on the Base Salary);; and
(B) a portion of Executive's Bonus for the fiscal year of the Company that includes the Date of Termination, such portion to equal the product (such product, the "Pro Rata Bonus") of (1) the Bonus that would have been payable to Executive for such year had he remained employed for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board or a committee thereof, multiplied by (2) a fraction, the numerator of which is lump sum payment equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by the Company to its active executives;
(C) payment of an amount equal to 150100% of the Average Annual Bonus (as defined below)Executive’s salary, such amount to be paid in two equal installmentsto Executive on the one (1) year anniversary date of the Date of Termination.
(C) The Company and Executive agree that each payment made by the Company to Executive pursuant to subsection (A) and (B) of this Section 8(f)(i) shall be deemed to be a separate and distinct payment for purposes of Internal Revenue Code Section 409A and the related regulations, as opposed to an annuity or other collective series of payments.
(D) Notwithstanding anything to the first such installment contrary contained herein, to the extent the aggregate amount to be paid within five business days to the Executive pursuant to subsections (A) and (B) of this Section 8(f)(i) during the six (6) months following the Bonus Payment Date of Termination exceeds two (2) times the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Internal Revenue Code of 1986, as amended (“Code”), for the fiscal calendar year of such Date of Termination (the “401(a)(17) Limit”), then payment of such amount that is in excess of two (2) times the 401(a)(17) Limit shall not be paid during the sixth (6) months following the Date of Termination but instead shall be paid in a lump sum payment on the next day after the date which is six (6) months following the Date of Termination, except to the extent provided in subsection (E) below of this Section 8(f)(i).
(E) Notwithstanding anything to the contrary contained herein, to the extent any amount set forth in clause (y) of this Section 8(f)(i) or subsections (A), (B) and /or (D) of this Section 8(f)(i) would constitute 162(m) Excess Compensation if it were a bonus, no such amount shall be paid and, in lieu thereof, the Company shall make a Company 162(m) Contribution pursuant to the Post-2018 Deferred Compensation Plan to the Account of Executive thereunder. Executive has been furnished a copy of the Post-2018 Non-Qualified Deferred Compensation Plan and understands that includes payment to him of a Company 162(m) Contribution contributed to Executive’s Account under the Post-2018 Non-Qualified Deferred Compensation Plan thereunder may be delayed until up to the sixth year after Executive’s separation from service from the Company. The Company retains the right to modify the terms of the Seaboard Corporation Post-2018 Non-Qualified Deferred Compensation Plan from time to time as permitted by Code Section 409A.
(F) Employee shall automatically fully vest in all non-qualified employee welfare and benefit plans in which the Employee was participating as of the Date of Termination and the second such installment to benefits shall be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to Employee in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of the Company under accordance with the terms of such plans as plans. In the event the Employee is a Participant in effect from time the Seaboard Corporation Long-Term Incentive Plan (the “|LTI Plan”), and the Employee shall vest in his awards pursuant to time.the provisions of this Section 8(f)(i)(F), the LTI Plan shall be deemed amended solely with respect to the Employee, which amendment the
Appears in 1 contract
Payments Upon Certain Terminations.
(i) In the event of a termination of Executive's ’s employment by the Company Without Cause or a termination by Executive of his Executive’s resignation from employment for Good Reason during the Employment Period, the Company shall pay to Executive (or, following his death, to Executive's ’s estate), within thirty (30) within 30 days of the Date of Termination his Termination, (x) full his Base Salary through the Date of Termination, to the extent not previously paid; (y) the pro-rata amount of the Annual Bonus (based on the amount paid or awarded for the previous year) which is accrued through the Date of Termination; and (z) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) the terms hereof, and (z) payment for vacation paid time off accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "“Accrued Obligations"”). In addition, in the event of any such termination of Executive's ’s employment, provided if Executive executes and delivers to the Company a Release and Discharge of All Claims substantially in the form attached hereto (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement“Release”) in a form acceptable to within thirty (30) days after the CompanyDate of Termination, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefitsbenefits (provided, as liquidated damages:however, in the event of Executive’s death following the Date of Termination but prior to delivery of the executed Release, the following payments shall be paid to Executive’s estate, notwithstanding that the Release has not been executed):
(A) continued payments of the Executive’s Base Salary (at the Base SalarySalary being paid on the Date of Termination), for one (1) year (the “Severance Period”), payable in installments in accordance with the Company's ’s regular payroll policies, policies for one year after the period beginning Date of Termination; and
(B) a lump sum payment of $1,500,000 payable on the one-year anniversary date of the Date of Termination; and
(C) the Executive shall automatically vest in all employee welfare and benefit plans in which the Executive was participating as of the Date of Termination and ending on such benefits shall be paid to Executive in accordance with the eighteen terms of such plans; and
(D) The Company and Executive agree that each payment made by the Company to Executive pursuant to subsections (A) and (B) of this Section 8(f)(i) shall be deemed to be a separate and distinct payment for purposes of Internal Revenue Code Section 409A and the related regulations, as opposed to an annuity or other collective series of payments.
(E) Notwithstanding anything to the contrary contained herein, to the extent the aggregate amount to be paid to the Executive pursuant to Subsections (A) and (B) of this Section 8(f)(i) during the six (6) months anniversary following the Date of Termination exceeds two (2) times the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Internal Revenue Code of 1986, as amended (“Code”), for the calendar year of such Date of Termination (the "Severance Period"“401(a)(17) Limit”);
, then payment of such amount that is in excess of two (B2) times the 401(a)(17) Limit shall not be paid during the sixth (6) months following the Date of Termination but instead shall be paid in a portion of Executive's Bonus for lump sum payment on the fiscal year of next day after the Company that includes date which is six (6) months following the Date of Termination, such portion . Executive shall not have a duty to equal mitigate the product (such product, the "Pro Rata Bonus") of (1) the Bonus that would have been payable costs to Executive for such year had he remained employed for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board or a committee thereofunder this Section 8(f)(i), multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by nor shall any payments from the Company to its active executives;
Executive hereunder be reduced, offset or canceled by any compensation or fees earned by (Cwhether or not paid currently) payment or offered to Executive during the remainder of an amount equal to 150% of the Average Annual Bonus (as defined below), such amount to be paid in two equal installments, the first such installment to be paid within five business days following the Bonus Payment Date for the fiscal year of the Company that includes the Date of Termination and by a subsequent employer or other Person (as defined below in Section 18(k) below) for which Executive performs services, including, but not limited to, consulting services. The foregoing shall not relieve Executive of the second non-competition prohibitions provided in Section 10 below.
(ii) If Executive’s employment shall terminate upon his death or due to Executive’s Disability or Executive shall resign from his employment without Good Reason, in any such installment case during the Employment Period, the Company shall pay to be paid Executive (or, in the event of Executive’s death, to his estate) the Accrued Obligations within five business thirty (30) days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of . If the Company shall terminate Executive’s employment for Cause, the Company shall pay Executive the termination benefits, as provided in clauses (x) and (z) of Section 8(f)(i).
(iii) Except as specifically set forth in this Section 8(f), no termination benefits shall be payable to or in respect of Executive’s employment with the Company or its Affiliates.
(iv) The Company shall have the right to apply and set off against the Accrued Obligations or any other amounts owing to Executive hereunder, any amounts owing by the Executive to the Company, whether pursuant to this Agreement or otherwise. Notwithstanding the foregoing, such set off shall not accelerate the time or schedule of a payment of Deferred Compensation except as permitted under the terms of such plans as in effect from time to time.Treasury Regulation Section 1.409A-3(j)(4)(xiii).
Appears in 1 contract
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's employment by the Company Without Cause or a termination by Executive of his employment for Good Reason during the Employment Period, the Company shall pay to Executive (or, following his death, to Executive's estate) within 30 days of the Date of Termination his (x) full Base Salary through the Date of Termination, (y) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) and (z) payment for vacation time accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "Accrued Obligations"). In addition, in the event of any such termination of Executive's employment, ; provided Executive executes and delivers to the Company a Release and Discharge of Claims (that shall not impose upon substantially in the form previously provided to Executive any broader restrictive covenant or post-employment limitation than those contained in connection with the execution of this Agreement) in a form acceptable to the Company, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefits, as liquidated damages:
(A) continued payments of the Base Salary, payable in installments in accordance with the Company's regular payroll policies, for the period beginning on the Date of Termination and ending on the eighteen months month anniversary of the Date of Termination (the "Severance Period");
(B) a portion of Executive's Bonus for the fiscal year of the Company that includes the Date of Termination, such portion to equal the product (such product, the "Pro Rata Bonus") of (1) the Bonus that would have been payable to Executive for such year had he remained employed for the entire fiscal year and as though had Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board or a committee thereof, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by the Company to its active executives;
(C) payment of an amount equal to 150% of the Average Annual Bonus (as defined below), such amount to be paid in two equal installments, the first such installment to be paid ) within five business 10 days following the Bonus Payment Date for the fiscal year of the Company that includes the Date of Termination and the second such installment to be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; andTermination;
(D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by active senior executives of the Company under the terms of such plans as in effect from time to time;
(E) with respect to any Options and Islands Equity Awards held by Executive immediately prior to the Date of Termination, (1) those Options and Island Equity Awards that have not become vested prior to the Date of Termination and that would, based solely on Executive's continued employment, have become vested during the Severance Period but for Executive's termination of employment, shall continue to vest and become exercisable in accordance with their respective terms during the Severance Period as though Executive had continued to be employed by the Company for such period, (2) all other Options and Island Equity Awards that have not become vested prior to the Date of Termination shall expire on the Date of Termination and (3) to the extent vested, outstanding Options and Island Equity Awards shall be exercisable during the Severance Period and for the period following the expiration of the Severance Period ending on the earlier of (x) the normal expiration date of the applicable Option or Island Equity Award, (y) the 30th day following the expiration of the Severance Period and (z) any later date provided in clause (ii) of Section II(a) of the Letter Agreement with respect to the Island Equity Awards specifically referenced therein; and
(F) the Holding Period shall expire solely on the conditions and to the extent provided in Section 4(d) hereof.
Appears in 1 contract
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's employment by the Company Employer Without Cause or a termination by Executive of his employment for Good Reason in either such case during the Employment PeriodPeriod (any such termination, the Company a "Qualifying Termination"), Employer shall pay to Executive (or, following his death, to Executive's estatebeneficiaries) within 30 days of the Date of Termination his (x) full Base Salary through the Date of TerminationTermination and, (y) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date as liquidated damages in respect of Termination that are subject to reimbursement pursuant to Section 6(b) claims based on provisions of this Agreement and (z) payment for vacation time accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "Accrued Obligations"). In addition, in the event of any such termination of Executive's employment, provided Executive executes and delivers to a general release of all claims substantially in the Company a Release and Discharge of Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement) in a form acceptable to the Companyattached hereto as Exhibit D, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefits, as liquidated damagesadditional amounts:
(A) continued payments of his Base Salary at the Base Salaryrate in effect hereunder immediately prior to the Qualifying Termination, which shall be payable in installments in accordance with the Companyon Employer's regular payroll policiesdates, for the period (such period, the "Severance Period") beginning on the Date of Termination (as defined below) and ending on the eighteen months later of (i) the second anniversary of the Commencement Date and (ii) the second anniversary of the Date of Termination (the "Severance Period");Termination; plus
(B) a portion of Executive's if the Company achieves the performance objectives established under the Bonus Plan for the fiscal year of the Company Bonus Year that includes the Date of Termination, an amount, payable in one lump sum as soon as reasonably practicable following receipt by the Board of the consolidated financial statements of the Company for such portion Bonus Year, equal to equal the product (such product, the "Pro Rata Bonus") of (1) the annual incentive Bonus that would have been payable to Executive for such year Bonus Year pursuant to Section 4(b) under the Bonus Plan had he remained employed for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board or a committee thereofBonus Year, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year Bonus Year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by the Company to its active executives;less
(C) payment the amount, if any, paid or payable to Executive under the terms of any severance plan, severance policy, severance program or severance practice of Employer or any of its Affiliates applicable to Executive, as in effect on the Date of Termination (a "Severance Program"); provided that Employer may, at any time, pay to Executive, in a single lump sum and in satisfaction of Employer's obligations under clauses (A) and (B) of this Section 7(f)(i), an amount equal to 150% (x) the installments of the Average Annual Bonus Base Salary clause (as defined below)A) above, such amount and the amount, if any, then remaining to be paid in two equal installmentsto Executive pursuant to clause (B) above, without discount for immediate payment, less (y) the first such installment amount, if any, remaining to be paid within five business days following to Executive pursuant to any Severance Program identified under clause (C) above. In addition, in the Bonus Payment Date for the fiscal year event of the Company that includes the Date of Termination and the second such installment to be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage a Qualifying Termination, Employer shall, during the Severance Period Period, provide Executive continued coverage under the Company's medical and dental insurance other health plans of Employer referred to in Section 5 (the "Continued Benefits") for in which Executive and his eligible dependents participating in such plans was a participant immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid during such period by senior executives of the Company Employer under the terms of such plans as in effect from time to time. Executive shall not have a duty to mitigate the costs to Employer under this Section 7(f)(i), except that Continued Benefits shall be canceled to the extent of any comparable benefit coverage offered to Executive during the Severance period by a subsequent employer or other Person (as defined below) for which Executive performs services, including but not limited to consulting services.
(ii) If Executive's employment shall terminate upon his death or due to his Disability or if Employer shall terminate Executive's employment for Cause or Executive shall terminate his employment without Good Reason during the Employment Period, Employer shall pay Executive (or, in the event of his death, his beneficiaries) his full Base Salary through the Date of Termination or as provided in Section 3 above. In addition, in the case of any such termination due to Executive's death or Disability, if the Company achieves the performance objectives established under the Bonus Plan for the Bonus Year that includes the Date of Termination, Employer shall pay Executive (or his beneficiaries if applicable) an amount, payable in one lump sum as soon as reasonably practicable following receipt by the Board of the consolidated financial statements of the Company for such Bonus Year, equal to the product of (1) the annual incentive Bonus that would have been payable to the Executive for such Bonus Year pursuant to Section 4(b) under the Bonus Plan had he remained employed for the entire Bonus Year, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such Bonus Year that precede the Date of Termination (exclusive of any time between the onset of a physical or mental disability that prevents the performance by Executive of his duties hereunder and the resulting Date of Termination) and the denominator of which is equal to 365.
(iii) Executive shall be entitled to receive all amounts payable and benefits accrued under any otherwise applicable plan, policy, program or practice of Employer in which Executive was a participant during his employment with Employer in accordance with the terms thereof, provided that (x) Executive shall not be entitled to receive any payments or benefits under any such plan, policy, program or practice providing any bonus or incentive compensation (and the provisions of this Section 7(f) shall supersede the provisions of any such plan, policy, program or practice), and (y) the amount, if any, paid or payable to Executive under the terms of any such plan, policy, program or practice relating to severance shall reduce the amounts payable under Section 7(f)(i) as provided in clause (C) thereof.
Appears in 1 contract
Sources: Employment Agreement (Jafra Worldwide Holdings Lux Sarl)
Payments Upon Certain Terminations. (i) In Subject to Section 7, in the event of a termination of the Executive's employment by the Company Without Cause or without Cause, a termination by the Executive of his employment for Good Reason or a termination by the Executive within 12 months of a Change in Control (any such termination, a "Qualifying Termination"), (A) the Executive shall receive in a lump sum an amount equal to 2.99 times (x) the Executive's Base - Salary in effect immediately prior to such termination plus (y) a bonus equal to the - greater of the Executive's most recent annual bonus or the annual bonus received immediately prior to the Executive's most recent annual bonus; (B) the right of the - Executive to exercise any outstanding options or other rights to acquire any capital stock of the Company, shall be accelerated and become immediately exercisable; and (C) - the right of the Executive to receive any compensation measured by the price of any capital stock of the Company, and any other rights to compensation or benefits under this Agreement (other than salary and annual bonus) which are contingent upon the continued employment of the Executive shall become immediately exercisable or receivable by the Executive to the extent they would have become exercisable or receivable by the Executive if he had remained employed by the Company for the balance of the then current term of this Agreement.
(ii) If the Executive's employment is terminated by the Company for Cause or the Executive shall terminate his employment without Good Reason during the Employment Period, or on account of retirement at or after age 65, the Company shall pay to the Executive (or, following his death, to Executive's estate) within 30 days of the Date of Termination his (x) full Base Salary through the Date of TerminationTermination and, in the case of a termination by the Executive without Good Reason, a pro-rata bonus for the year of termination.
(yiii) reimbursement In the case of the Executive's termination of employment due to the Executive's death, the Company shall pay the Executive's full Base Salary through the Date of Termination and shall continue to pay the Executive's then current Base Salary to a beneficiary designated by the Executive for any unreimbursed business expenses incurred a period of 180 days after the Executive's death. If the Executive's employment is terminated by the Company as a result of the Executive's Disability, the Company shall pay the Executive's full Base Salary through the Date of Termination and shall pay to the Executive an amount equal to 2 years' Base Salary plus the most recent annual bonus received by the Executive prior to the Date Executive's termination of Termination employment. Amounts payable by the Company on account of the Executive's Disability shall be paid in 24 equal monthly installments at the end of each month after the month in which the Disability commences.
(iv) In the event that the Executive's employment is terminated by the Executive for Good Reason or by the Company without Cause, if at any time during the five year period following the Executive's termination of employment the Executive shall not be a full time employee of another employer, the Company shall provide the Executive with (A) - the use of a suitable office which need not be on the Company's premises, (B) appropriate secretarial services, (C) the automobile provided for in Section 5(d) - hereunder and (D) the cost of obtaining health, accident and dental benefits for the Executive at benefit levels that are subject comparable to reimbursement pursuant to the health, accident and dental benefits that the Executive would have received under the Company benefit plans described in Section 6(b5(b) and hereunder if the Executive had continued employment with the Company.
(zv) payment for vacation time accrued as of In the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "Accrued Obligations"). In addition, in the event case of any such termination of Executive's employment, provided Executive executes and delivers to the Company a Release and Discharge of Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement) in a form acceptable to the Company, Executive (oror his estate, following his death, Executive's estatelegal representative or beneficiaries) shall be entitled to the following payments receive all amounts payable and benefitsbenefits accrued under any otherwise applicable plan, as liquidated damages:
(A) continued payments policy, program or practice of the Base Salary, payable Company in installments which the Executive was a participant during his employment with the Company in accordance with the Company's regular payroll policiesterms thereof, for provided that the period beginning on the Date of Termination and ending on the eighteen months anniversary of the Date of Termination Executive shall not be entitled to receive any payments or benefits under any such plan, policy, program or practice providing any, severance, bonus or incentive compensation (the "Severance Period");
(B) a portion of Executive's Bonus for the fiscal year of the Company that includes the Date of Termination, such portion to equal the product (such product, the "Pro Rata Bonus") of (1) the Bonus that would have been payable to Executive for such year had he remained employed for the entire fiscal year and as though Executive and the Company each achieved (but not exceededprovisions of this Section 6(f) shall supersede the target performance objectives for provisions of any such year established plan, policy, program or practice or the amounts payable hereunder shall be reduced by the Board amounts payable under any such severance, bonus or a committee thereofincentive compensation plan, multiplied by (2) a fractionpolicy, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by the Company to its active executives;
(C) payment of an amount equal to 150% of the Average Annual Bonus (as defined belowprogram or practice), such amount to be paid in two equal installments, the first such installment to be paid within five business days following the Bonus Payment Date for the fiscal year of the Company that includes the Date of Termination and the second such installment to be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of the Company under the terms of such plans as in effect from time to time.
Appears in 1 contract
Sources: Employment Agreement (Complete Business Solutions Inc)
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's employment by the Company Without Cause or a termination by Executive of his employment for Good Reason during the Employment Period, the Company shall pay to Executive (or, following his death, to Executive's estate) within 30 days of the Date of Termination his (x) full Base Salary through the Date of Termination, (y) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) and (z) payment for vacation time accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "Accrued Obligations"). In addition, in the event of any such termination of Executive's employment, provided Executive executes and delivers to the Company a Release and Discharge of Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement) in a form acceptable to the Company, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefits, as liquidated damages:
(A) continued payments of the Base Salary, payable in installments in accordance with the Company's regular payroll policies, for the period beginning on the Date of Termination and ending on the eighteen months anniversary of the Date of Termination (the "Severance Period");
(B) a portion of Executive's Bonus for the fiscal year of the Company that includes the Date of Termination, such portion to equal the product (such product, the "Pro Rata Bonus") of (1) the Average Annual Bonus that would have been payable to Executive for such year had he remained employed for the entire fiscal year and (as though Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board or a committee thereofdefined below), multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by the Company to its active executives;
(C) payment of an amount equal to 150% of the Average Annual Bonus (as defined below), such amount to be paid in two equal installments, the first such installment to be paid within five business days following the Bonus Payment Date for the fiscal year of the Company that includes the Date of Termination and the second such installment to be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of the Company under the terms of such plans as in effect from time to time.
Appears in 1 contract
Payments Upon Certain Terminations. (i) In the event If Employer has provided Executive Notice of a termination of Executive's employment by the Company Without Termination without Cause or a termination by Executive of terminates his employment for Good Reason during the Employment PeriodReason, the Company Employer shall pay to Executive (or, following his death, to Executive's estate) within 30 days of the Date of Termination his (x) full Base Salary through the Date of Termination, (y) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) and (z) payment for vacation time accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "Accrued Obligations"). In addition, in the event of any such termination of Executive's employment, provided Executive executes and delivers to the Company a Release and Discharge of Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement) in a form acceptable to the Company, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefits, as liquidated damagesseverance:
(A1) continued payments of the his Base Salary, payable in installments in accordance with the Company's regular payroll policies, for the period beginning on from such date of termination through the Date of Termination and ending on the eighteen months anniversary expiration of the Date severance term specified in Section 4 of Termination (the "Severance Period");Attachment A to this Agreement, and
(B2) a portion of Executive's Bonus for the fiscal year of the Company that includes the Date of Termination, such portion to equal the product of
(such product, the "Pro Rata Bonus") of (1i) the Bonus amount of incentive compensation that would have been payable to Executive for such the calendar year in which his employment terminates if he had he remained employed for the entire fiscal calendar year and as though Executive and the Company each achieved (but not exceeded) the target assuming that all applicable performance objectives for such year established by the Board or a committee thereofhad been achieved at target, multiplied by by
(2ii) a fraction, the numerator of which is equal to the number of days in such fiscal calendar year that precede (x) if a termination Without Cause, the date of the Notice of Termination, or (y) if a termination by Executive for Good Reason, the Date of Termination Termination, and the denominator of which is 365. In consideration of such severance benefits, Employee agrees to (i) waive all rights to post termination benefits, other than vested equity awards and pension, if any, after the termination date, (ii) waive any claims to other severance or termination benefits and (iii) execute a reasonable release releasing Employer from all claims including but not limited to claims under the Americans with Disabilities Act or for wrongful discrimination or wrongful discharge from Employer. Employer may pay to Executive at any time a single lump sum equal to 365, such the present value (calculated using a discount rate equal to the short-term Applicable Federal Rate as defined in Section 1274(d) of the Internal Revenue Code) of the remaining amount payable as Base Salary hereunder in full and complete satisfaction of Employer's obligations under Section 7(f)(i). Employer shall continue to be payable provide to Executive within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by the Company life, medical, dental, accidental death and dismemberment and prescription drug benefits made available to its active executives;
(C) payment of an amount equal Executive pursuant to 150% of the Average Annual Bonus (as defined below), such amount to be paid in two equal installments, the first such installment to be paid within five business days following the Bonus Payment Date for the fiscal year of the Company that includes the Date of Termination and the second such installment to be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for during the period over which Employer continues to pay Executive and his eligible dependents participating in such plans immediately prior Base Salary pursuant to this Section 7(f)(i). Executive shall generally not have a duty to mitigate the costs to Employer under this Section 7(f)(i), except that (i) if the period over which Employer continues to pay Executive his Base Salary pursuant to this Section 7(f)(i) extends beyond one year from the Date of Termination, subject the amount payable pursuant to timely payment this Section 7(f)(i) as Base Salary for any period after the expiration of such one year shall be reduced (but not below zero) by the amount of compensation received by Executive for services performed in any capacity, including self-employment, and (ii) Continued Benefits for such period shall be reduced or canceled to the extent of any comparable benefit coverage offered to Executive by a subsequent employer during the period the Continued Benefits are to be provided.
(ii) Upon his death or Disability or if Employer shall terminate Executive's employment for Cause, Employer shall pay Executive his full Base Salary through the Date of Termination, plus, in the case of termination upon Executive's death or Disability, the pro rata amount of incentive compensation for the portion of the calendar year preceding Executive's Date of Termination (exclusive of any time between the onset of a physical or mental disability that prevents the performance by Executive of his duties hereunder and the resulting Date of Termination) that would have been payable to Executive if he had remained employed for the entire calendar year and assuming that all premiumsapplicable performance targets had been achieved at target levels of performance. Executive shall not be entitled to severance compensation under any severance compensation plan of Employer when Executive receives compensation under this Section 7(f)(ii). Other than severance compensation, contributions any benefits payable to or in respect of Executive under any otherwise applicable plans, policies and other co-payments required to practices of Employer shall not be paid limited by senior executives of the Company under the terms of such plans as in effect from time to timethis provision.
Appears in 1 contract
Sources: Executive Employment Agreement (Remington Arms Co Inc/)
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's ’s employment by the Company Without Cause or a termination by Executive of his Executive’s resignation from employment for Good Reason during the Employment Period, the Company shall pay to Executive Executive, within thirty (or, following his death, to Executive's estate30) within 30 days of the Date of Termination Termination, his (x) full Base Salary through the Date of Termination, to the extent not previously paid, (y) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b8(a) and (z) payment for vacation time accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "“Accrued Obligations"”). In addition, in the event of any such termination of Executive's ’s employment, provided if Executive executes and delivers to the Company a Separation Agreement and General Release and Discharge of Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained substantially in this Agreement) in a the form acceptable to approved by the Company, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefits, as liquidated damages:
(A) continued payments of Base Salary and the Base Salarycar allowance described in Section 7(b), payable in installments in accordance with the Company's ’s regular payroll policies, for the period beginning on the Date of Termination and ending on the eighteen months one (1) year anniversary of the Date of Termination (the "“Severance Period"”), such amounts to be inclusive of any payments made during any period of Garden Leave;
(B) a portion of Executive's ’s Annual Bonus for the fiscal year of the Company during which Executive was employed that includes the Date of Termination, such portion to equal the product (such product, the "Pro “Pro-Rata Bonus"”) of (1) the Annual Bonus that would have been payable to Executive for such fiscal year had he Executive remained employed for the entire fiscal year and as though Executive and year, determined based on the extent to which the Company each achieved (but not exceeded) actually achieves the target performance objectives goals for such year established by the Board or a committee thereofpursuant to Section 5, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five (5) business days following the date (the "“Bonus Payment Date"”) annual bonuses for such fiscal year are actually paid by the Company to its active executives;
(C) payment of an amount equal to 150% of the Average Annual Bonus (as defined below), such amount to be paid in two equal installments, the first such installment to be paid within five business days following the Bonus Payment Date for the fiscal year of the Company that includes the Date of Termination and the second such installment to be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's medical ’s medical, dental and dental life insurance plans referred to in Section 5 (the "Continued Benefits"7(a) for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by active senior executives of the Company under the terms of such plans as in effect from time to time; and
(D) at the discretion of the Company, the services of an outplacement agency as selected by and for such period of time as determined by the Chief Human Resources Officer of Burger King Corporation. Executive shall not have a duty to mitigate the costs to the Company under this Section 9(f)(i), nor shall any payments from the Company to Executive of Base Salary or Pro-Rata Bonus be reduced, offset or canceled by any compensation or fees earned by (whether or not paid currently) or offered to Executive during the Severance Period by a subsequent employer or other Person (as defined in Section 20(k) below) for which Executive performs services, including but not limited to consulting services. The foregoing notwithstanding, should Executive receive or be offered health or medical benefits coverage during the Severance Period by a subsequent employer or Person for whom Executive performs services, Executive shall notify the Company of this within seven (7) business days of such receipt or offer, as applicable, and all similar health and medical benefits coverage provided by the Company to Executive shall terminate as of the effective date of such new coverage.
(ii) If Executive’s employment shall terminate upon his death or if the Company shall terminate Executive’s employment for Cause or due to Executive’s Disability or Executive shall resign from his employment without Good Reason, in any such case during the Employment Period, the Company shall pay to Executive (or, in the event of Executive’s death, to his estate) the Accrued Obligations within thirty (30) days following the Date of Termination, provided that in the event of Executive’s death, the said 30-day period for making such payment shall commence from the date of production to the Company of such evidence or information in respect of the Executive’s estate as the Company may require. In addition, if Executive’s employment shall terminate upon his death or be terminated by the Company due to Executive’s Disability during the Employment Period, the Company shall pay to Executive (or, in the event of Executive’s death, to his estate) the Pro-Rata Bonus, if any, in one lump sum within five (5) business days following the Bonus Payment Date for the fiscal year of the Company that includes the Date of Termination.
(iii) Except as specifically set forth in this Section 9(f), no termination benefits shall be payable to or in respect of Executive’s employment with the Company or its Affiliates.
Appears in 1 contract
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's employment by the Company Instinet Without Cause or a termination by Executive of his employment for Good Reason during the Employment Period, the Company Instinet shall pay to Executive (or, following his death, to Executive's estate) within 30 days of the Date of Termination his (x) full Base Salary through the Date of Termination, (y) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) and (z) payment for vacation time accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "Accrued Obligations"). In addition, in the event of any such termination of Executive's employment, provided Executive executes and delivers to the Company Instinet a Release and Discharge of Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement) in a substantially the form acceptable to the Companyattached hereto as Exhibit A, Executive (or, following his death, Executive's estate) shall be entitled to the following payments compensation and benefitsbenefits upon the effectiveness of such Release of Claims, as which shall constitute liquidated damagesdamages for all purposes:
(A) continued payments of the Base Salary, payable in installments in accordance with the CompanyInstinet's regular payroll policies, for the period beginning on the Date of Termination and ending on the eighteen months first anniversary of the Date of Termination (the "Severance Period");
(B) a portion of Executive's pro rata Bonus for the fiscal year of the Company ProTrader that includes the Date of Termination, such portion to equal the product Termination (such product, the "Pro Rata BonusAccrued Bonus Amount") of in an amount equal to (1i) the Bonus that would have been payable to Executive for if such year had he remained employed for the entire termination occurs during fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board or a committee thereof2001, $250,000 multiplied by (2) a fraction, the numerator of which is equal to the number of calendar days in such fiscal year that precede prior to the Date of Termination and the denominator of which is equal to 365365 and (ii) if such termination occurs during fiscal year 2002 or fiscal year 2003, such amount to be the Bonus that would have been payable to Executive within five business days following pursuant to Section 4(a) hereof had Executive's employment with Instinet continued until the date last day of such fiscal year determined based solely on the Pretax Earnings of ProTrader for the period (the "Accrued Bonus Payment DatePeriod") annual bonuses for such beginning on the first day of the relevant fiscal year are actually paid by and ending on the Company to its active executives;
(C) payment Date of an amount equal to 150% Termination after pro rating both the numerator and denominator of the Average Annual Bonus (as defined below), such amount to be paid fraction described in two equal installmentsSection 4(a)(ii)(B) by multiplying each by a fraction, the first such installment to be paid within five business numerator of which is the number of calendar days following in the Bonus Payment Date for the relevant fiscal year of the Company that includes prior to the Date of Termination and the second such installment denominator of which is 365; provided that in the case of any Accrued Bonus Amount payable to Executive for the 2003 fiscal year, the amount payable pursuant to this Section 7(f)(i)(B) shall be reduced by the amount of any pro rata bonus payable to Executive pursuant to Section 2(a) of this Agreement. The Accrued Bonus Amount shall be paid within five business days to Executive as soon as reasonably practicable following delivery to the Bonus Payment Date Board of the audited financial statements of ProTrader for the next succeeding fiscal year of ProTrader that includes the CompanyDate of Termination, but in no event later than March 1 of the following year; and
(DC) continued coverage during the Severance Period under the CompanyInstinet's medical and dental health insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of the Company Instinet under the generally applicable terms of such plans as in effect from time to time. Executive shall not have a duty to mitigate the costs to Instinet under this Section 7(f)(i), nor shall any payments from Company to Executive of Base Salary and Continued Benefits be reduced or canceled to the extent of any compensation, fees or comparable benefit coverage earned by (whether or not paid currently) or offered to Executive during the Severance Period by a subsequent employer or other Person (as defined below) for which Executive performs services, including but not limited to consulting services. The foregoing not withstanding, should Executive receive benefits coverage by a subsequent employer during the Severance Period, all healthcare medical benefits coverage provided by Instinet to Executive shall immediately terminate.
(ii) If Executive's employment shall terminate upon his death or Disability or if Instinet shall terminate Executive's employment for Cause or Executive shall terminate his employment without Good Reason in any such case during the Employment Period, Instinet shall pay to Executive (or, in the event of Executive's death, to his estate) the Accrued Obligations plus one month's base salary within 30 days following the Date of Termination. Executive shall remain entitled to all benefits under COBRA. In addition, if Executive's employment shall terminate upon his death or Disability during the Employment Period in fiscal year 2001, 2002 or 2003, Instinet shall pay to the Executive (or, in the event of Executive's death, to his estate) the Accrued Bonus Amount, determined in accordance with Section 7(f)(i)(B) if any, in one lump sum within five business days following the Bonus Payment Date for the fiscal year of Instinet that includes the Date of Termination.
(iii) Except as specifically set forth in this Section 7(f), no benefits payable to Executive under any otherwise applicable plan, policy, program or practice of Instinet or its Affiliates in which Executive was a participant during his employment with Instinet or any of its Affiliates (including, without limitation, ProTrader) shall be limited by this Section 7(f), provided that Executive shall not be entitled to receive any compensation, benefits or other payments under any such plan, policy, program or practice providing any bonus or incentive compensation or severance compensation or benefits (and the provisions of this Section 7(f) shall supersede the provisions of any such plan, policy, program or practice). The provisions of this paragraph shall not be construed to waive or undermine Executive's rights under the Purchase Agreement, or under the Option Plan with respect to any options previously granted Executive as of the Termination Date.
Appears in 1 contract
Payments Upon Certain Terminations.
(i) In the event of a termination of Executive's ’s employment by the Company Without Cause or on account of a termination Non-Renewal Resignation by Executive of his employment for Good Reason during the Employment PeriodExecutive, the Company shall pay to Executive (or, following his death, to Executive's ’s estate) within 30 thirty (30) days of the Date of Termination his Termination, (x) full his Base Salary through the Date of Termination, to the extent not previously paid; (y) the pro-rata amount of the Annual Bonus (based on the amount paid for the previous year which is accrued through the Date of Termination); and (z) reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b) the terms hereof, and (z) payment for vacation time accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "“Accrued Obligations"”). In addition, in the event of any such termination of Executive's ’s employment, provided if Executive executes and delivers to the Company a Release and Discharge of All Claims substantially in the form approved attached hereto (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained in this Agreement“Release”) in a form acceptable to within thirty (30) days after the CompanyDate of Termination, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefitsbenefits (provided, as liquidated damages:however, in the event of Executive’s death following the Date of Termination but prior to delivery of the executed Release, the following payments shall be paid to Executive’s estate, notwithstanding that the Release has not been executed):
(A) continued payments of an amount equal to the Executive’s Base Salary (at the Base SalarySalary being paid on the Date of Termination) for one (1) year, payable in installments in accordance with the Company's ’s regular payroll policies, for with the period beginning first installment being paid on the Date of Termination and ending on Company’s regular pay date following the eighteen months anniversary of day which is thirty (30) days after the Date of Termination (the "Severance Period"“Payment Commencement Date”) (with the first installment being the sum of the Base Salary installments from the Date of Termination through the Payment Commencement Date, and with subsequent installments being based on the Base Salary);; and
(B) a portion lump sum payment equal to 100% of Executive's Bonus for the fiscal year of the Company that includes the Date of Termination, such portion to equal the product (such product, the "Pro Rata Bonus") of (1) the Bonus that would have been payable to Executive for such year had he remained employed for the entire fiscal year and as though Executive and the Company each achieved (but not exceeded) the target performance objectives for such year established by the Board or a committee thereof, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year are actually paid by the Company to its active executives;
(C) payment of an amount equal to 150% of the Average Annual Bonus (as defined below)’s salary, such amount to be paid in two equal installmentsto Executive on the one (1) year anniversary date of the Date of Termination.
(C) The Company and Executive agree that each payment made by the Company to Executive pursuant to subsections (A) and (B) of this Section 8(f)(i) shall be deemed to be a separate and distinct payment for purposes of Internal Revenue Code Section 409A and the related regulations, as opposed to an annuity or other collective series of payments.
(D) Notwithstanding anything to the first such installment contrary contained herein, to the extent the aggregate amount to be paid within five business days to the Executive pursuant to subsections (A) and (B) of this Section 8(f)(i) during the six (6) months following the Bonus Payment Date of Termination exceeds two (2) times the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Internal Revenue Code of 1986, as amended (“Code”), for the calendar year of such Date of Termination (the “401(a)(17) Limit”), then payment of such amount that is in excess of two (2) times the 401(a)(17) Limit shall not be paid during the sixth (6) months following the Date of Termination but instead shall be paid in a lump sum payment on the next day after the date which is six (6) months following the Date of Termination.
(E) Notwithstanding anything to the contrary contained herein, to the extent any amount set forth in clause (y) of this Section 8(f)(i) or subsections (A) and (B) of this Section 8(f)(i) constitutes 162(m) Excess Compensation, no such 162(m) Excess Compensation shall be paid and, in lieu thereof, the Company shall make a Company 162(m) Contribution pursuant to the Post-2018 Deferred Compensation Plan to the Account of Executive thereunder. Executive has been furnished a copy of the Post-2018 Non-Qualified Deferred Compensation Plan and understands that payment to him of a Company 162(m) Contribution contributed to Executive’s Account under the Post-2018 Non-Qualified Deferred Compensation Plan thereunder may be delayed until up to the sixth year after Executive’s separation from service from the Company. The Company retains the right to modify the terms of the Seaboard Corporation Post-2018 Non-Qualified Deferred Compensation Plan from time to time as permitted by Code Section 409A. Executive shall not have a duty to mitigate the costs to the Company under this Section 8(f)(i), nor shall any payments from the Company to Executive hereunder be reduced, offset or canceled by any compensation or fees earned by (whether or not paid currently) or offered to Executive during the remainder of the fiscal year of the Company that includes the Date of Termination and by a subsequent the second Company or other Person (as defined below in Section 18(k) below) for which Executive performs services, including, but not limited to, consulting services.
(ii) If Executive’s employment shall terminate upon his death or if the Company shall terminate Executive’s employment for Cause or due to Executive’s Disability, or Executive shall resign from his employment, in any such installment case during the Employment Period, the Company shall pay to be paid Executive (or, in the event of Executive’s death, to his estate) the Accrued Obligations within five business thirty (30) days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued coverage during the Severance Period under the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination.
(iii) Except as specifically set forth in this Section 8(f), subject no termination benefits shall be payable to timely payment by Executive or in respect of all premiums, contributions and other co-payments required to be paid by senior executives of Executive’s employment with the Company under or its affiliates.
(iv) The Company shall have the terms of such plans as in effect from time right to time.apply and set off against the Accrued Obligations or any other amounts owing to Executive hereunder, any amounts owing by the Executive to the Company, whether pursuant to this Agreement or otherwise.
Appears in 1 contract
Payments Upon Certain Terminations. (i) In the event of a termination of Executive's employment by the Company Without Cause or a termination by Executive of his employment for Good Reason during the Employment Period’s employment, the Company shall pay to Executive Executive, within thirty (or, following his death, to Executive's estate30) within 30 days of the Date of Termination Termination, his (x) full Base Salary through the Date of Termination, (y) to the extent not previously paid, reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 6(b7(a) and (z) payment for vacation time accrued as of the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the "“Accrued Obligations"”). In addition, in the event of any such termination of Executive's employment’s employment unless such termination was for Cause (as defined in Section 7(e) below), provided if Executive executes and delivers to the Company a Separation Agreement and General Release and Discharge of Claims (that shall not impose upon Executive any broader restrictive covenant or post-employment limitation than those contained substantially in this Agreement) in a the form acceptable to approved by the Company, Executive (or, following his death, Executive's estate) shall be entitled to the following payments and benefits, as liquidated damages:
(A) continued payments the portion of the Base Salary, payable in installments in accordance with the Company's regular payroll policies, for the period beginning on the Date of Termination and ending on the eighteen months anniversary of the Date of Termination (the "Severance Period");
(B) a portion of Executive's ROAE Bonus for the fiscal year of the Company during which Executive was employed that includes the Date of Termination, such portion to equal the product (such product, the "Pro “Pro-Rata ROAE Bonus"”) of (1) the ROAE Bonus that would have been payable to Executive for such fiscal year had he Executive remained employed for the entire fiscal year and as though Executive and year, determined based on the extent to which the Company each achieved (but not exceeded) actually achieves the target performance objectives goals for such year established by the Board or a committee thereofyear, multiplied by (2) a fraction, the numerator of which is equal to the number of days in such fiscal year that precede the Date of Termination and the denominator of which is equal to 365, such amount to be payable to Executive within five business days following on the date such bonus would otherwise have been paid if the Executive was still employed (the "“Bonus Payment Date"”);
(B) annual bonuses to the extent not already paid, the portion of the Capital Bonus Pool due the Executive pursuant to Section 4 above for such fiscal year are actually paid by a Determination Date that precedes the Company to its active executivesDate of Termination (the “Unpaid Capital Bonus”) payable in cash on the Bonus Payment Date;
(C) payment of an amount equal to 150% the extent any incentive stock awards such as stock options, stock appreciation rights, restricted stock, or similar which were awarded to Executive during the Employment Period and which have not vested as of the Average Annual Bonus Date of Termination, such incentive stock awards will immediately become 100% vested and exercisable; and Executive shall not have a duty to mitigate the costs to the Company under this Section 7(c)(i), nor shall any payments from the Company to Executive under items (A), (B) or (C) of this Section 7(c)(i) be reduced, offset or canceled by any compensation or fees earned by (whether or not paid currently) or offered to Executive during the Severance Period by a subsequent employer or other Person (as defined in below)) for which Executive performs services, such amount including but not limited to consulting services. The foregoing notwithstanding, should Executive receive or be paid in two equal installments, the first such installment to be paid within five business days following the Bonus Payment Date for the fiscal year of the Company that includes the Date of Termination and the second such installment to be paid within five business days following the Bonus Payment Date for the next succeeding fiscal year of the Company; and
(D) continued offered health or medical benefits coverage during the Severance Period under by a subsequent employer or Person for whom Executive performs services, Executive shall notify the Company of this within seven (7) business days of such receipt or offer, as applicable, and all similar health and medical benefits coverage provided by the Company to Executive shall terminate as of the effective date of such new coverage.
(ii) Except as specifically set forth in this Section 7(c), no termination benefits shall be payable to or in respect of Executive’s employment with the Company's medical and dental insurance plans referred to in Section 5 (the "Continued Benefits") for Executive and his eligible dependents participating in such plans immediately prior to the Date of Termination, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of the Company under the terms of such plans as in effect from time to time.
Appears in 1 contract