Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to the date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.
Appears in 4 contracts
Sources: Employment Agreement (Estee Lauder Companies Inc), Employment Agreement (Estee Lauder Companies Inc), Employment Agreement (Estee Lauder Companies Inc)
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) of the Executive shall fail because of illness, physical or mental disability or other incapacity, for a period of six consecutive months, or for shorter periods aggregating six months during any twelve-month period, to render the Term of Employmentservices provided for by this Agreement, then the Company shall have the rightshall, upon by written notice to the ExecutiveExecutive after the last day of the six consecutive months of disability or the day on which the shorter periods of disability equal an aggregate of six months, to terminate reduce the Executive’s employment hereunder's compensation hereunder for "Permanent Disability" as follows: First Six Months No Reduction Following 18 months 90% of compensation less $l0,000 per month Following 12 months Fifty percent (50%) of (or if less, effective the compensation balance of the Employment Term) Balance of Employment Twenty-five percent (25%) of Term compensation The Executive will use his reasonable best efforts to cooperate with any physician referred to the Company by the physicians referral service of the Columbia Presbyterian Medical Center of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ to determine whether or not Permanent Disability exists, and the determination of such physician made in writing to the Company and the Executive shall be final and conclusive for all purposes of this Agreement; provided that if such physician declines to make a determination as to medical disability, the matter will be referred to ENDISPUTE for resolution, whereby ENDISPUTE shall select a single arbitrator to make a determination based upon the giving evidence and testimony submitted by such physician and no other expert testimony or medical evidence shall be permitted or considered by such arbitrator. Any payments provided for in this Section 5 shall be reduced to the extent that such payments, together with any disability payments received by the Executive under any plan, program or arrangements, including any payment to the employee under Section 3.1(b) exceed the Executive's Base Salary; provided that if disability payments are received which are free of federal income tax. The payments provided for in this Section s shall be reduced by an amount equal to the pre-tax income which would have been required to produce such payment free of tax based on the marginal rate for the previous tax year of the Executive. Except (i) as to continue to pay the Executive's medical insurance premiums for a period of 18 months following delivery of the written notice of "Permanent Disability" to the Executive or (ii) as otherwise provided in this Section 5, upon delivery of such notice (or such later date as shall be specified in such written notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to the date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, obligation to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.
Appears in 4 contracts
Sources: Employment Agreement (Atlantic Express Transportation Corp), Employment Agreement (Atlantic Express Transportation Corp), Employment Agreement (Atlantic Express Transportation Corp)
Permanent Disability. In the event of the “"permanent disability” " (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s 's employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) to receive any accrued but unpaid salary and other amounts or benefits to which the Executive may otherwise is have been entitled hereunder prior to the effective date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions hereintermination; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with his Base Salary under Section 3(b3(a) hereofhereof for a period of one (1) year from the effective date of termination; provided, however, that the Company shall only be required to pay that amount of the Executive's Base Salary which shall not be covered by pension benefits or long-term disability payments, if any, to the Executive under any Company plan or arrangement and (iii) to receive a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which the termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, participate in any and all healthcarepension, life insurance and accidental death other benefit plans and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay period the Executive is continuing to receive his Base Salary in payments under accordance with this Section 6(l)6(a). Thereafter, the Executive’s 's rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period; provided, the Company shall provide to the Executivehowever, subject to Section 6(l)that, cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 3(b) and 4 and 5 hereof or otherwisehereof. For purposes of this Section 6(a), “"permanent disability” " means any disability as defined under the Company’s 's applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.
Appears in 3 contracts
Sources: Employment Agreement (Estee Lauder Companies Inc), Employment Agreement (Estee Lauder Companies Inc), Employment Agreement (Estee Lauder Companies Inc)
Permanent Disability. In the event of the “"permanent disability” " (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s 's employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) to receive any accrued but unpaid salary and other amounts or benefits to which the Executive may otherwise is have been entitled hereunder prior to the effective date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions hereintermination; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the effective date of termination as a result of permanent disability (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereoftermination; provided, however, that the Company shall only be required to pay that amount of the Executive’s 's Base Salary which shall not be covered by short-term disability payments or benefits or Company provided long-term disability payments or benefitspayments, if any, to the Executive Executive; and (iii) to receive any unpaid bonus compensation earned under Section 3(b) hereof that relates to any Company plan or arrangementContract Year ending prior to the date of permanent disability. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, participate in any and all healthcarepension, life insurance and accidental death other benefit plans and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay period the Executive is continuing to receive his Base Salary in payments under accordance with this Section 6(l)5(a). Thereafter, the Executive’s 's rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period; provided, the Company shall provide to the Executivehowever, subject to Section 6(l)that, cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except except as otherwise provided in this Section 6(a5(a), the Company will have no further obligations under Sections 3, 4 3(b) and 5 hereof or otherwise(d) hereof. For purposes of this Section 6(a)paragraph, “"permanent disability” " means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.
Appears in 3 contracts
Sources: Employment Agreement (Estee Lauder Companies Inc), Employment Agreement (Estee Lauder Companies Inc), Employment Agreement (Estee Lauder Companies Inc)
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to the date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year fiscal year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year fiscal year during which termination due to permanent disability occurred, based on the portion of the Contract Year fiscal year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereofhereof (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination); (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereofhereof (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination); and (v) his Base Salary under Section 3(aat a rate equal to the highest rate during the past twelve (12) hereof months for a period of one (1) year from the date of termination as a result of permanent disability disability, in accordance with Section 3(a) hereof (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i6(j)(i) hereofhereof (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination); further provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l6(j)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l6(j), cash payments, to be paid in accordance with Section 6(l)(i6(j)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (yv) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, sum the “Pension Replacement Payment”Payment”),(provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l6(j) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.
Appears in 2 contracts
Sources: Employment Agreement (Estee Lauder Companies Inc), Employment Agreement (Estee Lauder Companies Inc)
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) Disability of the Executive Employee during the Term of EmploymentEmployment Term, the Company shall have the right, upon written notice following the sending of a Notice of Termination to the ExecutiveEmployee, to terminate the Executive’s his employment hereunder, effective upon . Effective on the giving Date of such notice (or such later date as shall be specified in such notice). In the event of such terminationTermination, the Company shall have no be discharged and released from any further obligations hereunderunder the Agreement (including, except that but not limited to, any obligation to pay any bonus in respect of the Executive fiscal year in which termination occurs, or any fiscal year thereafter), other than (x) the obligation to continue to make periodic payments to the Employee of his Base Salary then in effect (reduced by any amounts received by the Employee pursuant to any temporary disability plan or program maintained by the Company and any federal or state disability plan or program) for the period, if any, from the commencement of the period of Disability through and, if necessary, after the Date of Termination until the time in respect of which full payments to the Employee or his representatives are commenced under the Company's permanent disability plan or program or (y) pursuant to the next sentence, if applicable. Notwithstanding the foregoing, if at the time the Employee's employment hereunder is terminated in the event of Disability the Company does not maintain a permanent disability plan or program or if the Employee does not participate in a permanent disability plan or program offered or sponsored by the Company, then the Company shall be entitled pay to receive the Employee, within 30 days after the Date of Termination, an amount equal to (i) any accrued but unpaid salary and other amounts to which 100% of the Executive otherwise is entitled hereunder prior to annual Base Salary in effect at the date time of his termination the Notice of employment, such salary to be paid Termination in accordance with Section 3(a) the provisions of Paragraph 5 hereof and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior an amount equal to the date highest of his termination the aggregate bonus payments (including Discretionary Bonus payments pursuant to Paragraph 6 hereof) made to or earned by the Employee in respect of employmentthe last three twelve month periods preceding the Date of Termination. Notwithstanding the foregoing, to be paid the Employee shall have the continuing obligations provided for in accordance with Section 3(bParagraph 13(b) hereof; (iii) a pro-rata portion , but shall be released from any obligations after the Date of the annual bonus payout that the Executive would have been entitled Termination pursuant to receive had he remained in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(bParagraph 13(a) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “. Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive due under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law plans and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under the provisions of such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month periodprograms.
Appears in 2 contracts
Sources: Employment Agreement (Dairy Mart Convenience Stores Inc), Employment Agreement (Dairy Mart Convenience Stores Inc)
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) of the Executive If during the Term Period of Employment, the Company Employee shall have the rightbecome permanently disabled, upon written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of such notice Employer shall pay Employee $200,000 for each year (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (iand additional fractional portion thereof) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to the date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of terminationdisability to the 31st day of March, in accordance with Section 5(b) hereof; and (v) his Base Salary 2018, less any amounts paid or payable to Employee under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or any long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangementpension plan maintained by the Employee pursuant to this paragraph shall be paid in substantially equal monthly installments. In additionFor the purposes of this paragraph (1) and this Agreement, upon termination for "permanent disability, " means inability to perform the services of President and Chief Executive shall continue Officer of the Employer required hereunder due to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program physical or arrangement, mental disability which continues for one hundred eighty (180) consecutive days in any period of twelve (12) months, and all healthcare"date of disability" means the day following the close of such 180-day period. Evidence of such disability shall be certified by a physician acceptable to both Employer and Employee. Evidence of such disability, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if anyas so certified, shall be as determined under conclusive notwithstanding that a disability policy, or clause in an insurance policy, covering Employee shall contain a different definition of "permanent disability." If Employer and Employee cannot agree on such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company a physician, or if Employee feels that he is not permitted during the Disability Continuation Periodable to perform his duties hereunder, the Company shall provide to question of whether Employee is "permanently disabled," within the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) meaning of this Agreement, shall be submitted to a panel of three (3) impartial and reputable physicians, one selected by Employer, one selected by Employee and the third to be selected by the then president of the Medical Society for Utah County, State of Utah. Except as otherwise provided in this Section 6(a), The panel's determination of Employee's ability so to perform shall be binding on the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwiseparties hereto. For purposes of this Section 6(a)Agreement, “permanent the Period of Employment will be deemed to terminate on the day immediately preceding the date of disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.
Appears in 2 contracts
Sources: Executive Employment Agreement (Innerlight Holdings, Inc.), Executive Employment Agreement (Innerlight Holdings, Inc.)
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) Disability of the Executive Employee during the Term of EmploymentEmployment Term, the Company shall have the right, upon written notice following the sending of a Notice of Termination to the ExecutiveEmployee, to terminate the Executive’s his employment hereunder, effective upon . Effective on the giving Date of such notice (or such later date as shall be specified in such notice). In the event of such terminationTermination, the Company shall have no be discharged and released from any further obligations hereunderunder the Agreement, except that other than (a) (x) the Executive shall be entitled obligation to receive (i) any accrued but unpaid salary and other amounts continue to which the Executive otherwise is entitled hereunder prior make periodic payments to the date Employee of his termination of employment, such salary to be paid Base Salary then in accordance with Section 3(a) and such other effect (reduced by any amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates received by the Employee pursuant to any Contract Year ended prior temporary disability plan or program maintained by the Company and any federal or state disability plan or program) for the period, if any, from the commencement of the period of Disability through and, if necessary, after the Date of Termination until the time in respect of which full payments to the date of Employee or his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of representatives are commenced under the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which termination due to Company's permanent disability occurredplan or program or (y) pursuant to the next sentence, based on if applicable, and (b) the obligation to pay to the Employee the portion of the Contract Year that has elapsed prior Retention Bonus under Section 6(a) hereof which remains unpaid as of the Date of Termination pro rated through the Date of Termination. Notwithstanding the foregoing clause (a), if at the time the Employee's employment hereunder is terminated in the event of Disability the Company does not maintain a permanent disability plan or program or if the Employee does not participate in a permanent disability plan or program offered or sponsored by the Company, then the Company shall pay to such terminationthe Employee, and paid within 30 days after the Date of Termination, an amount equal to (i) 100% of the annual Base Salary in effect at the time of the Notice of Termination in accordance with Section 3(bthe provisions of Paragraph 5 hereof and (ii) an amount equal to the highest of the aggregate bonus payments (excluding the Retention Bonus and the Emergence Bonus) made to or earned by the Employee in respect of the last three twelve month periods preceding the Date of Termination. Notwithstanding the foregoing, the Employee shall have the continuing obligations provided for in Paragraph 13(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in , but shall be released from any obligations after the amount Date of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(bTermination pursuant to Paragraph 13(a) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “. Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive due under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law plans and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under the provisions of such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month periodprograms.
Appears in 1 contract
Sources: Employment Agreement (Dairy Mart Convenience Stores Inc)
Permanent Disability. In the event of the “"permanent disability” " (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s 's employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to the date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b3(c) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b3(c) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b3(c) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “"Disability Continuation Period”"), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s 's Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.
Appears in 1 contract
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) to receive any accrued but unpaid salary and other amounts or benefits to which the Executive may otherwise is have been entitled hereunder but for the Executive’s permanent disability prior to the effective date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions hereintermination; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary as established under Section 3(a) hereof for a period of one (1) year from the effective date of termination as a result of permanent disability (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereoftermination; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or pension benefits or long-term disability payments or benefitspayments, if any, to the Executive under any Company plan or arrangement; and (iii) to receive a pro-rata portion of the annual bonus that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which the termination due to permanent disability occurred. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, participate in any and all healthcarepension, life insurance and accidental death other benefit plans and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay period the Executive is continuing to receive his Base Salary in payments under accordance with this Section 6(l)6(a). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period; provided, the Company shall provide to the Executivehowever, subject to Section 6(l)that, cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 3(b) or 4 and 5 hereof or otherwisehereof. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.
Appears in 1 contract
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the If Executive’s employment hereunderis terminated by reason of Executive’s Permanent Disability, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the then Executive shall be entitled to receive as of the Date of Termination:
(i) any accrued but unpaid salary and other amounts to which Executive’s Accrued Obligations not theretofore paid, paid within thirty (30) days following the Executive otherwise is entitled hereunder prior to the date Date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; Termination;
(ii) bonus compensation earned but not paid under Section 3(b) hereof that relates Disability benefits, if any, at least equal to any Contract Year ended prior those then provided by the Company to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; disabled executives and their families;
(iii) a pro-rata portion of the annual bonus payout that the Executive would have been and Executive’s eligible dependents shall be entitled to receive had he remained those benefits payable to them under the provisions of any applicable plan or program described in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, Section 3 and paid in accordance with Section 3(b) hereof; above;
(iv) reimbursement for financial counseling services specified under Section 5(b) hereof Return of Incentive Payments reinvested in the amount funds, as described in Section 4(a) above, subject to the terms of $5,000.00 for a period of one (1) year from the date of termination, fund in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from which the date of termination as a result of permanent disability (the “Disability Continuation Period”)Incentive Payments were reinvested, paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount terms of the applicable funds;
(v) An amount equal to six (6) months of Executive’s annual Base Salary at the rate in effect at the time the Notice of Termination is given, which amount shall not be covered by short-term disability payments or benefits or long-term disability payments or benefitspayable in six (6) monthly installments, if any, to commencing within sixty (60) days following the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations Date of Termination and the applicable benefit plan, program or arrangement, in first installment will include any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company monthly installments not yet paid during the Disability Continuation Period such sixty (disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), 60)-day period; and
(vi) A lump sum payment equal to the sum of (x) actual annual cash bonus under the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit Annual Bonus Programs that Executive would have been received by awarded for the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans year in which the Executive participates as Date of the date of termination of employmentTermination occurs, calculated as of and based upon the Executive’s date of termination (such summultiplied by a fraction, the “Pension Replacement Payment”)numerator of which is the number of days in the calendar year in which the Date of Termination occurs prior to the Date of Termination, and the denominator of which is 365. Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) Such pro-rated annual cash bonus amount shall be paid when such annual bonuses are paid to non-terminated employee participants in the applicable Annual Bonus Programs (or, if later, upon the satisfaction of all conditions for the payment of benefits hereunder, but in no event shall such payment occur later than December 31 March 15 of the second calendar year following the year in which the Executive’s termination for permanent disability Date of Termination occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.
Appears in 1 contract
Sources: Executive Employment Agreement (Calamos Asset Management, Inc. /DE/)
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder If prior to the date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that Expiration Date -------------------- the Executive would have been entitled becomes totally and permanently disabled (as defined in the Company's Long-Term Disability Plan applicable to senior executive officers ("LTD Plan") as in effect on May 27, 1993 ("Permanent Disability")) Holdings or the Company or Executive may terminate his employment on written notice thereof and
(a) Executive shall continue to receive had he remained in employment through until the Expiration Date (or, if earlier, the end of his Permanent Disability or his death) amounts equal to no less than 50% of Executive's then annual Base Salary (or, if higher, 50% of $500,000 plus 6% per year, compounded annually, from January 1, 1996, to the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to January 1 immediately preceding such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company any such payments shall only be required reduced but not below zero, by any benefits payable during such period to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to LTD Plan;
(b) the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments benefits under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, 5 hereof shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid out in accordance with Section 6(l)(i)their terms;
(c) all unpaid amounts, equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of such termination, in respect of any bonus, including any bonus for any Fiscal Year ending before such termination which would have been payable had Executive remained in employment until the date such bonus would otherwise have been paid and including any bonus under Section 3.4, shall be paid;
(d) any payment deferred by Executive, together with any applicable interest or other accruals thereon shall be paid;
(e) Executive shall continue to be covered under Holdings' and the Company's employee benefit programs, plans and practices described in Section 4.1 (in the case of employmentany plan meeting the requirements of Section 401(a) of the Code, calculated as of and based upon only to the Executive’s date of termination extent consistent with such requirements) hereof until the Expiration Date (such sumor, if earlier, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(aend of his Permanent Disability or his death) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), or Holdings or the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, provide for equivalent coverage on an after-tax basis; provided that if no such policy Executive is availableprovided with similar coverage by a successor employer, any physical such coverage by Holdings or mental disability the Company shall cease;
(f) Executive shall have such rights to payments under applicable plans or incapacity that renders programs, including but not limited to those described in Sections 3.3 and 4.3, as may be determined pursuant to the Executive incapable terms of performing such plans or programs and this Agreement; and
(g) all Options granted pursuant to Section 7.1 shall become immediately exercisable, and the services required of him transfer restrictions on the Purchased Stock as described in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period7.2 shall thereupon lapse.
Appears in 1 contract
Permanent Disability. In the event If (i) Executive shall fail for a period -------------------- of the “permanent disability” (as hereinafter defined) of the Executive six consecutive months during the Term term of Employmenthis employment hereunder, because of illness, physical or mental disability or other incapacity, to render the Company shall have services provided for by this Agreement or (ii) at such earlier time as Executive submits satisfactory medical evidence that he has an illness, physical or mental disability or other incapacity which is expected to prevent him from returning to the right, performance of his work duties for six months or longer ("Permanent Disability"). the company or Executive may terminate Executive's employment upon written notice thereof, setting forth in reasonable detail the facts and circumstances claimed to the provide a basis for termination of Executive's employment under this Section 6.2, to terminate the Executive’s employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the and Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to the date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participatereceive, to as the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period case may be:
(disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (xa) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as within thirty days of the date of termination of employmentExecutive's employment pursuant to this Section 6.2, calculated a cash lump sum equal to any compensation payments deferred by Executive, together with any applicable interest or other accruals thereon;
(b) any unpaid amounts, as of and based upon the Executive’s date of such termination, in respect of the Bonus for the Fiscal Year ending before such termination, which shall be payable on the date on which such Bonus is payable as specified in Section 3.3(a) hereof;
(c) on the March 1 following the end of the Fiscal Year during which the termination of Executive's employment pursuant to this Section 6.2 occurs, an amount in respect of the Bonus for such Fiscal Year calculated on the basis specified in Section 3.3(b) hereof;
(such sumd) until his attainment of age 65 (or if earlier, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 end of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(ahis Permanent Disability or his death), annual payments equal to no less than 60% of Executive's then annual Base Salary, it being acknowledged that the Company will have no further obligations under Sections 3, 4 and 5 hereof may obtain disability insurance as the vehicle to provide some or otherwise. For purposes all of this Section 6(a), “permanent disability” means any such disability as defined benefit;
(e) full coverage under the Company’s applicable disability insurance policy employee benefit programs, plans and practices described in Section 4.1 hereof until his attainment of age 65 (or, if no earlier, the end of his Permanent Disability or his death); and
(f) such policy is availablerights to payments under applicable plans or programs, any physical including but not limited to those described in Sections 3.6 and 4.1 hereof, as may be appropriate pursuant to the terms of such plans or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month periodprograms.
Appears in 1 contract
Permanent Disability. In If, as a result of Executive's incapacity due to physical or mental illness, Executive shall have been absent from his duties with the event of the “permanent disability” Company on a full-time basis for six consecutive months (either such situation, herein referred to as hereinafter defined"Permanent Disability") of the Executive during the Term of EmploymentEmployment Period, the Company then Executive's employment shall have the right, upon written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon on the giving of such notice (or such later date as by the Company, and the compensation to which Executive is entitled pursuant to Section 3.01 shall be specified paid up, in cash, through the last day of the month in which the notice is given, within five business days of the date of such notice). In the event of such terminationaddition, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive receive:
(ia) any accrued but on or before the Payment Date (as hereinafter defined), in cash, all unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to amounts, as of the date of his termination such termination, in respect of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion Bonus for any fiscal year of the annual bonus payout that Company ending before the Executive fiscal year in which such termination occurs, which would have been entitled to receive payable had he Executive remained in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from until the date of termination, in accordance with Section 5(b(the "Payment Date") hereof; and such Bonus would otherwise have been paid;
(vb) his Base Salary under Section 3(a) hereof for a period of one (1) year 18 months from the date of termination as a result (or, if earlier, until the date of permanent disability (the “Disability Continuation Period”his death), paid continued coverage (at the Company's expense) under the Company's welfare benefit and insurance programs, plans and practices, as provided in accordance Section 4.01(c), or equivalent coverage; provided that if Executive is provided with Section 6(l)(i) hereof; providedcomparable coverage by a successor employer, however, that any such coverage by the Company shall only be required cease;
(c) all benefits and payments to pay that which Executive has vested rights as of the expiration of the Employment Period under disability, insurance and other employee benefit plans which provide for payments beyond the Employment Period;
(d) a proportionate amount of the Executive’s 's then-current Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the compensate Executive under for any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates accrued but unpaid vacation time as of the date of termination the notice of employmenttermination, payable, in cash, within five business days of such notice; and
(e) a fully vested supplemental retirement benefit, paid in one lump sum within five business days after such termination, calculated as provided in Exhibit B hereto, but adding two years to the number of years of "Benefit Accrual Service" and "Years of Service" actually credited pursuant to the Supplemental Executive Retirement Plan attached hereto as Exhibit B-1 (the "SERP") (for the purposes of the SERP, it shall be assumed that Executive's "Earnings" during such two additional years would have been equal to the projected Base Salary and Bonus for such years, based upon on the Executive’s date further assumption that the Company attained all of termination its budgeted performance goals for such years) (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under provisions of this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A6.04(e) shall be paid no later than December 31 take precedence over conflicting provisions of the second calendar year following SERP and shall survive the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), and full acceleration of vesting and exercisability of any time-based stock options and timevested equity-based awards granted to or purchased by Executive (including without limitation all the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined "Time Vesting Restricted Shares" purchased by Executive under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month periodLaminates Acquisition Co. Management Restricted Stock Program).
Appears in 1 contract
Sources: Employment Agreement (Formica Corp)
Permanent Disability. In the event of the “"permanent disability” " (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s 's employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) to receive any accrued but unpaid salary and other amounts or benefits to which the Executive may otherwise is have been entitled hereunder but for the Executive's permanent disability prior to the effective date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions hereintermination; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with his Base Salary as established under Section 3(b3(a) hereofhereof for a period of one (1) year from the effective date of termination; provided, however, that the Company shall only be required to pay that amount of the Executive's Base Salary which shall not be covered by pension benefits or long-term disability payments, if any, to the Executive under any Company plan or arrangement; and (iii) to receive a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which the termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, participate in any and all healthcarepension, life insurance and accidental death other benefit plans and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay period the Executive is continuing to receive his Base Salary in payments under accordance with this Section 6(l)6(a). Thereafter, the Executive’s 's rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period; provided, the Company shall provide to the Executivehowever, subject to Section 6(l)that, cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 3(b) or 4 and 5 hereof or otherwisehereof. For purposes of this Section 6(a), “"permanent disability” " means any disability as defined under the Company’s 's applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.
Appears in 1 contract
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to the date of his her termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year fiscal year ended prior to the date of his her termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he she remained in employment through the end of the Contract Year fiscal year during which termination due to permanent disability occurred, based on the portion of the Contract Year fiscal year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereofhereof (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination); (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereofhereof (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination); and (v) his her Base Salary under Section 3(aat a rate equal to the highest rate during the past twelve (12) hereof months for a period of one (1) year from the date of termination as a result of permanent disability disability, in accordance with Section 3(a) hereof (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i6(j)(i) hereofhereof (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination); further provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l6(j)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l6(j), cash payments, to be paid in accordance with Section 6(l)(i6(j)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (yv) the excess of the benefit that would have been received by the Executive had he she been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, sum the “Pension Replacement Payment”Payment”),(provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l6(j) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him her in accordance with his her obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.
Appears in 1 contract
Permanent Disability. In the event of the “"permanent disability” " (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s 's employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to the date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year fiscal year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year fiscal year during which termination due to permanent disability occurred, based on the portion of the Contract Year fiscal year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(aat a rate equal to the highest rate during the past twelve (12) hereof months for a period of one (1) year from the date of termination as a result of permanent disability disability, in accordance with Section 3(a) hereof (the “"Disability Continuation Period”"), paid in accordance with Section 6(l)(i6(j)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s 's Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l6(j)). Thereafter, the Executive’s 's rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l6(j), cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.in
Appears in 1 contract
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) Disability of the Executive Employee during the Term of EmploymentEmployment Term, the Company shall have the right, upon written notice following the sending of a Notice of Termination to the ExecutiveEmployee, to terminate the Executive’s his employment hereunder, effective upon . Effective on the giving Date of such notice (or such later date as shall be specified in such notice). In the event of such terminationTermination, the Company shall have no be discharged and released from any further obligations hereunderunder the Agreement (including, except that but not limited to, any obligation to pay any bonus in respect of the Executive fiscal year in which termination occurs, or any fiscal year thereafter), other than (x) the obligation to continue to make periodic payments to the Employee of his Base Salary then in effect (reduced by any amounts received by the Employee pursuant to any temporary disability plan or program maintained by the Company and any federal or state disability plan or program) for the period, if any, from the commencement of the period of Disability through and, if necessary, after the Date of Termination until the time in respect of which full payments to the Employee or his representatives are commenced under the company's permanent disability plan or program or (y) pursuant to the next sentence, if applicable. Notwithstanding the foregoing, if at the time of the Employee's employment hereunder is terminated in the event of Disability the Company does not maintain a permanent disability plan or program or if the Employee does not participate in a permanent disability plan or program offered or sponsored by the Company, then the Company shall be entitled pay to receive the Employee, within 30 days after the Date of Termination, an amount equal to (i) any accrued but unpaid salary and other amounts to which 100% of the Executive otherwise is entitled hereunder prior to annual Base Salary in effect at the date time of his termination the Notice of employment, such salary to be paid Termination in accordance with Section 3(a) the provisions of Paragraph 5 hereof and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior an amount equal to the date highest of his termination the aggregate bonus payments (including Discretionary Bonus payments pursuant to Paragraph 6 hereof) made to or earned by the Employee in respect of employmentthe last three twelve month periods preceding the Date of Termination. Notwithstanding the foregoing, to be paid the Employee shall have the continuing obligations provided for in accordance with Section 3(bParagraph 13(b) hereof; (iii) a pro-rata portion , but shall be released from any obligations after the Date of the annual bonus payout that the Executive would have been entitled Termination pursuant to receive had he remained in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(bParagraph 13(a) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “. Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive due under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law plans and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under the provisions of such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month periodprograms.
Appears in 1 contract
Sources: Employment Agreement (Dairy Mart Convenience Stores Inc)
Permanent Disability. In the event of the “permanent disability” Permanent Disability -------------------- (as hereinafter defineddefined below) of the Executive during the Term of EmploymentEmployee, the Company shall have the rightCompany, upon written notice in its sole discretion, may elect either (i) to the Executiveextent feasible consistent with Employee's mental and physical condition and consistent with applicable law, to reassign Employee to other duties within the Company that Employee is able to perform despite his Permanent Disability at the compensation and benefit levels commensurate with Employee's reassigned duties, unless that compensation level is less than the amount payable in the event of a termination pursuant to the following sentence, or (ii) to terminate the Executive’s this Agreement and Employee's employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event that the Company elects to terminate Employee as provided in clause (ii) above, the Company shall, subject to following sentence, pay to Employee (A) within sixty (60) days after the date of such termination, all amounts of Base Salary accrued pursuant to Section 4 above prior to the date of such termination, and (B) compensation on the basis of 65% of the then current Base Salary for the first ninety (90) days of such Permanent Disability and, thereafter, compensation on the basis of 50% of the then current Base Salary through the end of the Permanent Disability period. This benefit may be provided by the Company to Employee through the purchase of a disability insurance policy that is contingent upon the insurability of Employee. Notwithstanding the foregoing, all payments hereunder shall end upon the earlier to occur of Executive's attaining the age of sixty-five (65) and the cessation of such Permanent Disability (whether as a result of recovery, rehabilitation, death or otherwise), and, thereafter, the Company shall have no further obligations hereunderto Employee under this Agreement. Additionally, except that the Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder if prior to the date of his termination of employment, such salary the Company's obligation to be paid in accordance with Section 3(a) and such other amounts make payments to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates Employee pursuant to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay Employee receives compensation for services rendered, whether as described an employee or otherwise, such compensation shall reduce the payments due under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), dollar for dollar. Employee shall promptly inform the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no all such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of compensation received by him in accordance with his obligations under Section 2 hereof for on a period of six (6) consecutive months or for shorter periods aggregating six (6) months monthly basis during any twelve-month such period.
Appears in 1 contract
Sources: Employment Agreement (Ifx Corp)
Permanent Disability. (a) In the event Executive becomes eligible for benefits under the Company's Short Term Disability Plan and/or the Company's Long Term disability Plan (collectively, the "Disability Plans"), Executive's disability benefit will be determined under the appropriate Disability Plan except that Executive's disability benefit shall be equal to 100% of the “permanent disability” his base salary (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder effect immediately prior to the date of his termination of employment, such salary disability) subject to offsets as provided under the appropriate Disability Plan. Disability benefits shall be paid for twenty four 24 months (at which time Executive will attain his Retirement Date in accordance with Section 3(a) and such other amounts to 5(d)(i)(III)), but in no event shall disability benefits be paid in accordance with applicable payment provisions herein; following (i) the date Executive is no longer disabled within the meaning of the appropriate Disability Plan or (ii) bonus compensation earned but Executive's attainment of age 65.
(b) The event of the Executive becoming eligible for benefits under the Company's Long Term Disability Plan is not paid a termination under Section 3(b6.1(a) hereof that relates entitling Executive to any Contract Year ended prior Compensation Continuance under this Agreement. If, however, Executive becomes eligible for benefits under the Company's Long Term Disability Plan during his Compensation Period, the amount of Compensation Continuance shall be reduced during the Compensation Period by the amount of disability benefits payable to the date of his termination of employment, Executive. The period during which disability benefits are paid to be paid Executive (in accordance with Section 3(b6.2(a) hereof; (iii) a pro-rata portion shall be recognized as Service for purposes of determining Executive's SERP Benefits pursuant to Section 5 hereof. All other provisions of this Agreement shall remain in effect notwithstanding the annual bonus payout that Executive's disability including, without limitation, , the Executive would have been entitled to receive had he remained terms of any applicable plans, including, but not limited to, those described in employment through the end of the Contract Year during which termination due to permanent disability occurredSections 3.3, based on the portion of the Contract Year that has elapsed prior to such termination4.1, 4.2, 4.3 and 4.4 hereof, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of terminationall unpaid amounts, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination such disability, in respect of employmentany bonus, calculated as of including any bonus payable for any fiscal year ending prior to such disability and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, including any amounts payable bonus under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to3.4, and payable in accordance withany payment deferred by Executive, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof together with any applicable interest or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month periodother accruals thereon.
Appears in 1 contract
Permanent Disability. In the event of the “"permanent disability” " (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s 's employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to the date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “Disability Continuation Period”)disability, paid in accordance with Section 6(l)(i3(a) hereof; provided, however, that the Company -------- ------- shall only be required to pay that amount of the Executive’s 's Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all qualified and non-qualified pension and qualified retirement savings, healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the period the Executive is continuing to receive his Base Salary in accordance with this Section 6(a) (the "Disability Continuation Period (disregarding any required delay in payments under Section 6(lPeriod")). Thereafter; provided, however, -------- ------- that if and to the Executive’s rights extent the Executive is not permitted to participate in such programs and the Company's plans, programs or to receive similar coverage, if any, shall be arrangements as determined under such programs. Because continued participation described in any qualified pension and qualified retirement savings plans the foregoing clause by reason of the Company is not permitted during the Disability Continuation PeriodExecutive being subject to a six-month delay of payments following termination of employment, as provided in Section 6(l) herein, then the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i)the regular payroll policies of the Company in effect from time to time, equal to the sum of 409A Replacement Payment (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.6(c))
Appears in 1 contract
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive If (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to the date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 shall fail for a period of one six consecutive months during the term of his employment hereunder, because of illness, physical or mental disability or other incapacity, to render the services provided for by this Agreement or (1ii) year at such earlier time as Executive or the Company submits satisfactory medical evidence that Executive has an illness, physical or mental disability or other incapacity which is expected to prevent him from returning to the date performance of terminationhis work duties for six months or longer ("Permanent Disability"), the Company or Executive may terminate Executive's employment upon written notice thereof, setting forth in accordance with reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive's employment under this Section 5(b6(c), and Executive shall receive or continue to receive, as the case may be:
(i) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from as soon as practicable after the date of termination as a result of permanent disability (the “Disability Continuation Period”Executive's employment pursuant to this Section 6(c), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required a cash lump sum equal to pay that amount of the Executive’s Base Salary which shall not be covered any compensation payments deferred by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance together with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by any applicable laws and regulations for each year during the Disability Continuation Period (interest or other period as expressly provided herein)accruals thereon;
(ii) any unpaid amounts, and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of such termination, in respect of the Bonus for the Fiscal Year ending before such termination, which shall be payable on the date on which such Bonus is payable as specified in Section 3(c)(i)(A) hereof;
(iii) on the November 1 following the end of the Fiscal Year during which the termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under 's employment pursuant to this Section 6(a6(c) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 occurs, an amount in respect of the second calendar year following Bonus for such Fiscal Year calculated on the year basis specified in which Section 3(c)(i)(B) hereof;
(iv) until the Executive’s termination for permanent disability occurs; any amounts payable under end of the term contemplated by this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy Agreement (or, if earlier, the end of Executive's Permanent Disability or upon his death), annual amounts equal to no less than 60% of Executive's then annual Base Salary, reduced by any amounts received by Executive under any disability insurance policies with respect to which the Company paid the premiums; and
(v) such policy is availablerights to payments under applicable plans or programs, any physical including but not limited to those described in Section 3(d) hereof, as may be appropriate pursuant to the terms of such plans or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month periodprograms.
Appears in 1 contract
Permanent Disability. In the event of the “"permanent disability” " (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s 's employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that termination the Executive shall be entitled to receive receive:
(i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to excess, if any, of the Executive's Pro-rated Salary (defined as provided in Section 5(g) below), determined as of the date of his termination of employment, over the amount of Salary actually received by the Executive through such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; date;
(ii) all amounts of bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended for the calendar year prior to the date of his year in which termination of employment, employment occurs to be paid in accordance with Section 3(b) hereof; the extent such amounts have not yet been paid;
(iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment all other compensation and benefits accrued through the end date of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid employment as provided in accordance with Section 3(b) hereof; any applicable plans or programs;
(iv) reimbursement for financial counseling services specified Base Salary established under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) 3 hereof for a period of one (1) year from the effective date of termination as a result of permanent disability (termination, reduced by the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or any long-term disability payments or benefits, if any, to received by the Executive in respect of such period;
(v) bonus for the year in which said termination of employment occurs, pro-rated for the number of days of employment during such year; and
(vi) to any rights to additional compensation awards (including incentives) or other benefits provided under any Company applicable plan or arrangementprogram. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, participate in any and all healthcare, life insurance and accidental death other benefit plans and dismemberment insurance benefit plans, programs or arrangements of the Company (but not including the Company's tax-qualified retirement plans) for a period of eighteen (18) months following termination of employment, at a cost to the Executive no greater than the cost which he would have borne if he had remained in employment during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l))such period. Thereafter, the Executive’s 's rights to participate in such programs plans and plansprograms, or to receive similar coverage, if any, shall be as determined under such plans and programs. Because continued participation A determination of "permanent disability" will be subject to the certification of a qualified medical doctor agreed to by the Company and Executive or, in any qualified pension and qualified retirement savings plans the event of the Company is not permitted during the Disability Continuation PeriodExecutive's incapacity to designate a doctor, the Executive's legal representative. In the absence of agreement between the Company shall provide to and the Executive, subject to Section 6(lExecutive (or his legal representative), cash paymentseach party will nominate a qualified medical doctor and the two doctors will select a third doctor, who will make the determination as to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.
Appears in 1 contract
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunderExecutive will be paid or provided any remaining compensation or benefits, except that the Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior subject to the date terms of his termination of employmentapplicable plans and this Agreement (other than any terms that require the continued employment as a condition to receiving or retaining any such compensation or benefits), such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled owed but have not yet been paid to receive had he remained in employment through the end of the Contract Year during which termination due to permanent disability occurredExecutive under this Second Amendment, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l6(g)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation The timing of any such payments will be made in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance compliance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. 409A. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.. In the event of “permanent disability” after the Term of Employment ends, the Company shall have no further obligations under this Agreement, except that the Executive will be paid or provided any remaining compensation or benefits, subject to the terms of applicable plans and this Agreement, that would have been owed but have not yet been paid to the Executive under this Second Amendment. The timing of any such payments will be made in compliance with Code section 409A. Paragraph 6(b) is replaced in its entirety with the following: 6
Appears in 1 contract
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to the date of his their termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; the terms of this Agreement (ii) bonus compensation earned but not paid under Section 3(b) hereof this Agreement that relates to any Contract Year fiscal year ended prior to the date of his their termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he the Executive remained in employment through the end of the Contract Year fiscal year during which termination due to permanent disability occurred, based on the portion of the Contract Year fiscal year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereofhereof (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination); (iv) reimbursement for financial counseling services specified under Section 5(b6(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, paid in accordance with Section 5(b) hereofhereof (provided, that no such payment shall be made prior to the sixtieth (60th) day following the Executive’s date of termination); and (v) his their Base Salary under Section 3(aat a rate equal to the highest rate during the past twelve (12) hereof months for a period of one (1) year from the date of termination as a result of permanent disability disability, paid in accordance with Section 3(a) hereof (the “Disability Continuation Period”), paid in accordance with and Section 6(l)(i7(j)(i) hereofhereof (provided, that such payments shall not commence prior to the sixtieth (60th) day following the Executive’s date of termination); further provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l))this Section. Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) terms of this Agreement. Except as otherwise provided in this Section 6(a)Section, the Company will have no further obligations under Sections 3a lump sum cash payment, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.within 60 days of
Appears in 1 contract
Permanent Disability. In the event of the “permanent disability” disability (as hereinafter defined) of the Executive Employee during the Term of Employmenthereunder, the Company Corporation shall have the right, upon written notice to the ExecutiveEmployee, to terminate the Executive’s his employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of Upon such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive Employee would be otherwise is entitled hereunder prior pursuant to the date of his termination of employment, such salary Paragraph 4(a) hereof shall continue to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment Employee through the end of the Contract Year during month in which such termination due occurs and Employee shall also be entitled to permanent disability occurred, based on the portion any bonus awarded to him under Paragraph 4(b) hereof but remaining unpaid as of the Contract Year that has elapsed prior date of the termination. Executive shall also be entitled to such termination, and paid exercise the Option to the extent not then exercised in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section Paragraphs 5(b) hereof in the amount of $5,000.00 for a period of one and 5 (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “Disability Continuation Period”), paid in accordance with Section 6(l)(ic) hereof; provided, however, that notwithstanding any such termination of Employee's employment hereunder due to the Company permanent disability of Employee, Employee shall only be required entitled to pay that amount receive the Base Salary through the date which is eighteen months after the date of such termination. Employee shall accept such payments in full discharge and release of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefitsCorporation of and from any further obligations under this Agreement, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive but Employee shall continue to participate, to have the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, obligations provided for in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwiseParagraph 12 hereof. For purposes of this Section 6(a)Paragraph 9, “"permanent disability” means any disability " shall be defined as defined under (a) "permanent disability" within the Company’s applicable meaning of the disability insurance policy oror policies then maintained by the Corporation for the benefit of employees of the Corporation, or (b) if no such policy is availableshall then be in effect, or if more than one such policy shall then be in effect in which the term "permanent disability" shall be assigned different definitions, then "permanent disability" shall be defined for purposes hereof to mean any physical or mental disability or incapacity that which renders the Executive Employee incapable of fully performing the services required of him in accordance with his obligations under Section 2 Paragraph 3 hereof for a period of six (6) 120 consecutive months days or for shorter periods aggregating six (6) months 120 days during any twelve-month period.
Appears in 1 contract
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to the date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year fiscal year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year fiscal year during which termination due to permanent disability occurred, based on the portion of the Contract Year fiscal year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereofhereof (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination); (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereofhereof (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination); and (v) his Base Salary under Section 3(aat a rate equal to the highest rate during the past twelve (12) hereof months for a period of one (1) year from the date of termination as a result of permanent disability disability, in accordance with Section 3(a) hereof (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i6(j)(i) hereofhereof (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination); further provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l6(j)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l6(j), cash payments, to be paid in accordance with Section 6(l)(i6(j)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (yv) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, sum the “Pension Replacement Payment”), (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.
Appears in 1 contract
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) to receive any accrued but unpaid salary and other amounts or benefits to which the Executive may otherwise is have been entitled to hereunder prior to the effective date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions hereintermination; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one two (12) year years from the effective date of termination as a result of permanent disability (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefitsexceed payments, if any, to the Executive under any Company plan pension or arrangementlong-term disability plans of the Company; and (iii) to receive bonus compensation during the Disability Continuation Period at an annual rate equal to the average of actual bonuses paid or payable to Executive during the Term of Employment in accordance with Section 3(b) hereof, or, if no such bonus has been paid or is payable as of the date of such termination, at an annual rate equal to his Base Salary under Section 3(a) hereof (the “Calculated Bonus Rate”). In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l5(i)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l5(i), cash payments, to be paid in accordance with Section 6(l)(i5(i)(ii), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a5(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a5(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l5(i) of this Agreement. Except as otherwise provided in this Section 6(a5(a), the Company will have no further obligations under Sections 3, 3 and 4 and 5 hereof or otherwise. For purposes of this Section 6(a)paragraph, “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.
Appears in 1 contract
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to the date of his their termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; the terms of this Agreement (ii) bonus compensation earned but not paid under Section 3(b) hereof this Agreement that relates to any Contract Year fiscal year ended prior to the date of his their termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he the Executive remained in employment through the end of the Contract Year fiscal year during which termination due to permanent disability occurred, based on the portion of the Contract Year fiscal year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereofhereof (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination); (iv) reimbursement for financial counseling services specified under Section 5(b6(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, paid in accordance with Section 5(b) hereofhereof (provided, that no such payment shall be made prior to the sixtieth (60th) day following the Executive’s date of termination); and (v) his their Base Salary under Section 3(aat a rate equal to the highest rate during the past twelve (12) hereof months for a period of one (1) year from the date of termination as a result of permanent disability disability, paid in accordance with Section 3(a) hereof (the “Disability Continuation Period”), paid in accordance with and Section 6(l)(i7(j)(i) hereofhereof (provided, that such payments shall not commence prior to the sixtieth (60th) day following the Executive’s date of termination); further provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.
Appears in 1 contract
Permanent Disability. In If the event of the “permanent disability” Executive becomes totally and -------------------- permanently disabled (as hereinafter defineddefined in the Company's Long-Term Disability Benefit Plan applicable to senior executive officers as in effect at the time Executive's disability is incurred) of the Executive during the Term of Employment("Permanent Disability"), the Company shall may terminate Executive's employment (but not before Executive's sick leave benefits have the rightbeen exhausted as provided in Section 4.1) or Executive may terminate his employment, upon in either case on written notice to the Executivethereof, to terminate the Executive’s employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the and Executive shall be entitled to receive or commence receiving, as soon as practicable:
(i) any accrued but unpaid salary and other amounts payable pursuant to the terms of all disability insurance policies or similar arrangements which the Executive otherwise is entitled hereunder prior to Company maintains during the date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; term hereof;
(ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; Vacation Payment and the Compensation Payment;
(iii) a pro-rata portion such payments and coverage under applicable plans, programs or practices, including but not limited to those referred to in Sections 3.2, 3.3, 4.1 and 4.3 hereof, to which he is entitled pursuant to the terms of the annual bonus payout that the such plans, programs or practices as required to be modified with respect to Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; by this Agreement;
(iv) reimbursement for financial counseling services specified under the term life insurance coverage as provided in Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and 4.1;
(v) his Base Salary additional years of service credit equal to the Continuation Period (rounded up to the nearest whole number of years) under Section 3(a) hereof for a period the qualified and nonqualified defined benefit retirement plans of one (1) year from the date Company in which Executive participates at the time of termination as a result of permanent disability (to the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereofextent not already required to be credited thereunder; provided, however, -------- ------- that in the Company shall only be required to pay that amount case of a qualified defined benefit retirement plan, the present value, determined as provided in Section 6.1(a)(ii), of the Executive’s Base Salary which shall not additional benefit Executive would have accrued if he had been credited for all purposes with the additional years of service under such plan will be covered by short-term disability paid in a lump sum in cash (the "Qualified Plan Payment"); and provided, -------- further, that benefit payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company nonqualified defined benefit ------- retirement plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is will not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, commence to be paid in accordance with Section 6(l)(i)until the end of the Continuation Period or, if later, the date Executive elects retirement thereunder; and
(vi) a lump sum cash payment (the "Disability Payment") equal to the sum of (xA) Executive's target Bonus Plan awards in accordance with Section 3.2 granted in respect of the maximum qualified defined contribution retirement savings plan match fiscal year in which termination occurs prorated for pre-tax the number of days in the fiscal year until termination occurs and after-tax contributions allowable by (B) an amount equal to his target annual bonus pursuant to the plan Bonus Plan for the full and by partial years in the Continuation Period discounted to present value (using the IRS applicable laws federal rate in effect under Section 1274(d) of the Code, at the time of termination). In addition, all of Executive's stock options shall become exercisable and regulations for each year during all restrictions pertaining to restricted stock or other equity awards shall lapse. The Vacation Payment, the Compensation Payment, the Disability Continuation Period (or other period as expressly provided herein), Payment and (y) the excess of the benefit that would have been received by the Qualified Plan Payment due Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), by the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes to Executive within 20 days after the termination of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month periodExecutive's employment.
Appears in 1 contract
Sources: Merger Agreement (Lg&e Energy Corp)
Permanent Disability. In the event If Winterbottom shall become permanently incapacitated by reasons of the sickness, accident, or other physical or mental disability (“permanent disability” (Permanent Disability”) as hereinafter defined) of the Executive defined hereunder during the Term of Employmentthis Agreement, this Agreement and all obligations to Winterbottom shall cease except as provided below. Permanent Disability shall be determined in one of two ways: (1) Winterbottom shall be considered to be Permanently Disabled for purposes of this Agreement if he becomes entitled to Long-Term Disability benefits under the Company’s Long-Term Disability Plan, in which case, this Agreement and all obligations to Winterbottom shall cease except that for a period of twelve (12) months, the Company shall have supplement Winterbottom’s Long-Term Disability payments to the rightextent necessary for the Long-Term Disability payments plus the supplemental payments to equal Winterbottom’s Base Pay as defined in Section 3.1 herein; (2) alternatively, if Winterbottom becomes permanently incapacitated and such incapacitation is certified by a physician chosen by the Company and reasonably acceptable to Winterbottom (if he is then able to exercise sound judgment), and Winterbottom shall therefore be unable to perform his normal duties hereunder, then the employment of Winterbottom hereunder and this Agreement may be terminated by Winterbottom or the Company upon thirty (30) days’ written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of other party following such notice certification. Should Winterbottom not acquiesce (or such later date as should he be unable to acquiesce) in the selection of the certifying doctor, a doctor chosen by Winterbottom (or if he is not then able to exercise sound judgment, by his spouse or personal representative) and reasonably acceptable to the Company shall be specified required to concur in the medical determination of incapacitation, failing which, the two doctors shall designate a third doctor whose decision shall be determinative as of the end of the calendar month in which such notice)concurrence or third-doctor decision, as the case may be, is made. In After the event of such terminationfinal certification is made and the 30-day written notice is provided, the Company shall have no further obligations hereunderpay to Winterbottom, except that the Executive shall at such times as Base Salary provided for in Section 3.1 of this Agreement would normally be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to the date of his termination of employmentpaid, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a proWinterbottom’s then-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 current Base Salary for a period of one twelve (112) year from the date months. Under either determination of terminationPermanent Disability, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) Winterbottom shall be paid no later than December 31 Seventy-Five percent (75%) of the second calendar year following amount of his Incentive Target for the year in which disability is certified prorated to the Executive’s termination last day worked. If no Incentive Target has been determined for permanent disability the year in which final certification occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will last determined Incentive Target shall apply. Following termination pursuant to either of the above alternatives, any rights and benefits Winterbottom may have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy employee benefit plans and programs of the Company in which Winterbottom is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him a participant shall be determined in accordance with his obligations the terms and provisions of such plans and programs. All awards of restricted stock, stock options and any other benefits under Section 2 hereof for a period any long-term incentive plans shall be handled in accordance with the terms of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month periodthe relevant plan and agreements entered into between Winterbottom and the Company with respect to such awards.
Appears in 1 contract
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to the date of his their termination of employment, such salary to be paid in accordance with Section 3(athe terms of this Agreement (including any reimbursable business or perquisite expenses incurred but not yet submitted for reimbursement prior to the date of termination of employment), plus all benefits under the employee benefit programs and plans of the Company (including the Share Incentive Plan and the Deferred Compensation Account) as determined under such programs and plans upon and as of such other amounts to be paid in accordance with applicable payment provisions hereina termination, including, if applicable, accrued but unused vacation (collectively, the “Accrued Benefits”); (ii) bonus compensation earned but not paid under Section 3(b) hereof this Agreement that relates to any Contract Year fiscal year ended prior to the date of his their termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he the Executive remained in employment through the end of the Contract Year fiscal year during which termination due to permanent disability occurred, based on the portion of the Contract Year fiscal year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereofhereof (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination); (iv) reimbursement for financial counseling services specified under Section 5(b6(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, paid in accordance with Section 5(b6(b) hereofhereof (provided, that no such payment shall be made prior to the sixtieth (60th) day following the Executive’s date of termination); and (v) his their Base Salary under Section 3(aat a rate equal to the highest rate during the past twelve (12) hereof months for a period of one (1) year from the date of termination as a result of permanent disability disability, paid in accordance with Section 3(a) hereof (the “Disability Continuation Period”), paid in accordance with and Section 6(l)(i7(j)(i) hereofhereof (provided, that such payments shall not commence prior to the sixtieth (60th) day following the Executive’s date of termination); provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l)this Section). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l)the terms of this Section, a lump sum cash paymentspayment, to be paid in accordance with Section 6(l)(i)within 60 days of the end of the Disability Continuation Period, equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.they
Appears in 1 contract
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) to receive any accrued but unpaid salary and other amounts or benefits to which the Executive may otherwise is have been entitled hereunder prior to the effective date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions hereintermination; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the effective date of termination as a result of permanent disability (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereoftermination; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or pension benefits or long-term disability payments or benefitspayments, if any, to the Executive under any Company plan or arrangementarrangement and (iii) to receive a pro-rata portion of the annual bonus that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which the termination due to permanent disability occurred. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, participate in any and all healthcarepension, life insurance and accidental death other benefit plans and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay period the Executive is continuing to receive his Base Salary in payments under accordance with this Section 6(l)6(a). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period; provided, the Company shall provide to the Executivehowever, subject to Section 6(l)that, cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 3(b) and 4 and 5 hereof or otherwisehereof. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.
Appears in 1 contract
Permanent Disability. In If, as a result of Executive's incapacity due to physical or mental illness, Executive shall have been absent from his duties with the event of the “permanent disability” Company on a full-time basis for six consecutive months (either such situation, herein referred to as hereinafter defined"Permanent Disability") of the Executive during the Term of EmploymentEmployment Period, the Company then Executive's employment shall have the right, upon written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon on the giving of such notice (or such later date as by the Company, and the compensation to which Executive is entitled pursuant to Section 3.01 shall be specified paid up, in cash, through the last day of the month in which the notice is given, within five business days of the date of such notice). In the event of such terminationaddition, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive receive:
(ia) any accrued but on or before the Payment Date (as hereinafter defined), in cash, all unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to amounts, as of the date of his termination such termination, in respect of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion Bonus for any fiscal year of the annual bonus payout that Company ending before the Executive fiscal year in which such termination occurs, which would have been entitled to receive payable had he Executive remained in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from until the date of termination, in accordance with Section 5(b(the "Payment Date") hereof; and such Bonus would otherwise have been paid;
(vb) his Base Salary under Section 3(a) hereof for a period of one (1) year 18 months from the date of termination as a result (or, if earlier, until the date of permanent disability (the “Disability Continuation Period”his death), paid continued coverage (at the Company's expense) under the Company's welfare benefit and insurance programs, plans and practices, as provided in accordance Section 4.01(c), or equivalent coverage; provided that if Executive is provided with Section 6(l)(i) hereof; providedcomparable coverage by a successor employer, however, that any such coverage by the Company shall only be required cease;
(c) all benefits and payments to pay that which Executive has vested rights as of the expiration of the Employment Period under disability, insurance and other employee benefit plans which provide for payments beyond the Employment Period;
(d) a proportionate amount of the Executive’s 's then-current Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the compensate Executive under for any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates accrued but unpaid vacation time as of the date of termination the notice of employmenttermination, payable, in cash, within five business days of such notice; and
(e) a fully vested supplemental retirement benefit, paid in one lump sum within five business days after such termination, calculated as provided in Exhibit B hereto, but adding two years to the number of years of "Benefit Accrual Service" and "Years of Service" actually credited pursuant to the Supplemental Executive Retirement Plan attached hereto as Exhibit B-1 (the "SERP") (for the purposes of the SERP, it shall be assumed that Executive's "Earnings" during such two additional years would have been equal to the projected Base Salary and Bonus for such years, based upon on the Executive’s date further assumption that the Company attained all of termination its budgeted performance goals for such years) (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under provisions of this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A6.04(e) shall be paid no later than December 31 take precedence over conflicting provisions of the second calendar year following SERP and shall survive the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), and full acceleration of vesting and exercisability of any time-based stock options and time-vested equity-based awards granted to or purchased by Executive (including without limitation all the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined "Time Vesting Restricted Shares" purchased by Executive under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month periodLaminates Acquisition Co. Management Restricted Stock Program).
Appears in 1 contract
Sources: Employment Agreement (Formica Corp)
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to the date of his their termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; the terms of this Agreement (ii) bonus compensation earned but not paid under Section 3(b) hereof this Agreement that relates to any Contract Year fiscal year ended prior to the date of his their termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he the Executive remained in employment through the end of the Contract Year fiscal year during which termination due to permanent disability occurred, based on the portion of the Contract Year fiscal year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereofhereof (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination); (iv) reimbursement for financial counseling services specified under Section 5(b6(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, paid in accordance with Section 5(b) hereofhereof (provided, that no such payment shall be made prior to the sixtieth (60th) day following the Executive’s date of termination); and (v) his their Base Salary under Section 3(aat a rate equal to the highest rate during the past twelve (12) hereof months for a period of one (1) year from the date of termination as a result of permanent disability disability, paid in accordance with Section 3(a) hereof (the “Disability Continuation Period”), paid in accordance with and Section 6(l)(i7(j)(i) hereofhereof (provided, that such payments shall not commence prior to the sixtieth (60th) day following the Executive’s date of termination); further provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.
Appears in 1 contract
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to the date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year fiscal year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year fiscal year during which termination due to permanent disability occurred, based on the portion of the Contract Year fiscal year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereofhereof (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination); (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereofhereof (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination); and (v) his Base Salary under Section 3(aat a rate equal to the highest rate during the past twelve (12) hereof months for a period of one (1) year from the date of termination as a result of permanent disability disability, in accordance with Section 3(a) hereof (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i6(j)(i) hereofhereof (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination); further provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l6(j)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l6(j), cash payments, to be paid in accordance with Section 6(l)(i6(j)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (yv) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, sum the “Pension Replacement Payment”), (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l6(j) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.
Appears in 1 contract
Permanent Disability. In the event of the “permanent disability” Permanent -------------------- Disability (as hereinafter defineddefined below) of the Executive during the Term of EmploymentEmployee, the Company shall have the rightCompany, upon written notice in its sole discretion, may elect either (i) to the Executiveextent feasible consistent with Employee's mental and physical condition and consistent with applicable law, to reassign Employee to other duties within the Company that Employee is able to perform despite his Permanent Disability at the compensation and benefit levels commensurate with Employee's reassigned duties, or (ii) to terminate the Executive’s this Agreement and Employee's employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event that the Company elects to terminate Employee as provided in clause (ii) above, the Company shall, subject to following sentence, pay to Employee (A) within sixty (60) days after the date of such termination, all amounts of Base Salary and Bonus Compensation accrued pursuant to Section 4 above prior to the date of such termination, and (B) compensation on the basis of 60% of the then current Base Salary for the first ninety (90) days of such Permanent Disability and, thereafter, compensation on the basis of 60% of the then current Base Salary through the end of the Permanent Disability period. This benefit may be provided by the Company to Employee through the purchase of a disability insurance policy that is contingent upon the insurability of Employee; provided, however, that the maximum premium that the Company shall be required to pay towards this benefit will not exceed US$100,000 per year. Notwithstanding the foregoing, all payments hereunder shall end upon the earlier to occur of Executive's attaining the age of sixty-five (65) and the cessation of such Permanent Disability (whether as a result of recovery, rehabilitation, death or otherwise), and, thereafter, the Company shall have no further obligations hereunderto Employee under this Agreement. Additionally, except that the Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder if prior to the date of his termination of employment, such salary the Company's obligation to be paid in accordance with Section 3(a) and such other amounts make payments to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates Employee pursuant to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay Employee receives compensation for services rendered, whether as described an employee or otherwise, such compensation shall reduce the payments due under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), dollar for dollar. Employee shall promptly inform the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no all such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of compensation received by him in accordance with his obligations under Section 2 hereof for on a period of six (6) consecutive months or for shorter periods aggregating six (6) months monthly basis during any twelve-month such period.
Appears in 1 contract
Sources: Employment Agreement (Ifx Corp)
Permanent Disability. In the event of the “"permanent --------------------- disability” " (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s 's employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) to receive any accrued but unpaid salary and other amounts or benefits to which the Executive may otherwise is have been entitled hereunder prior to the effective date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions hereintermination; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with his Base Salary under Section 3(b3(a) hereofhereof for a period of one (1) year from the effective date of termination; provided, however, that the Company shall only be required to --------- -------- pay that amount of the Executive's Base Salary which shall not be covered by pension benefits or long-term disability payments, if any, to the Executive under any Company plan or arrangement and (iii) to receive a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which the termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, participate in any and all healthcarepension, life insurance and accidental death other benefit plans and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay period the Executive is continuing to receive his Base Salary in payments under accordance with this Section 6(l)6(a). Thereafter, the Executive’s 's rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period; provided, the Company shall provide to the Executivehowever, subject to Section 6(l)that, cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 3(b) and 4 and 5 hereof or otherwisehereof. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.Section
Appears in 1 contract
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to the date of his her termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year fiscal year ended prior to the date of his her termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he she remained in employment through the end of the Contract Year fiscal year during which termination due to permanent disability occurred, based on the portion of the Contract Year fiscal year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereofhereof (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination); (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, paid in accordance with Section 5(b) hereofhereof (provided, that no such payment shall be made prior to the sixtieth (60th) day following the Executive’s date of termination); and (v) his her Base Salary under Section 3(aat a rate equal to the highest rate during the past twelve (12) hereof months for a period of one (1) year from the date of termination as a result of permanent disability disability, paid in accordance with Section 3(a) hereof (the “Disability Continuation Period”), paid in accordance with and Section 6(l)(i6(j)(i) hereofhereof (provided, that such payments shall not commence prior to the sixtieth (60th) day following the Executive’s date of termination); further provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l6(j)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l6(j), a lump sum cash paymentspayment, to be paid in accordance with Section 6(l)(i)within 60 days of the end of the Disability Continuation Period, equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (yv) the excess of the benefit that would have been received by the Executive had he she been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, sum the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l6(j) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him her in accordance with his her obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.
Appears in 1 contract
Permanent Disability. In the event of the “"permanent disability” " (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s 's employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) to receive any accrued but unpaid salary and other amounts or benefits to which the Executive may otherwise is have been entitled hereunder prior to the effective date of his termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions hereintermination; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with his Base Salary under Section 3(b3(a) hereofhereof for a period of one (1) year from the effective date of termination; PROVIDED, HOWEVER, that the Company shall only be required to pay that amount of the Executive's Base Salary which shall not be covered by pension benefits or long-term disability payments, if any, to the Executive under any Company plan or arrangement and (iii) to receive a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which the termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, participate in any and all healthcarepension, life insurance and accidental death other benefit plans and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay period the Executive is continuing to receive his Base Salary in payments under accordance with this Section 6(l)6(a). Thereafter, the Executive’s 's rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period; PROVIDED, the Company shall provide to the ExecutiveHOWEVER, subject to Section 6(l)that, cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except except as otherwise provided in this Section 6(a), the Company will have no further obligations under Sections 3, 3(b) and 4 and 5 hereof or otherwisehereof. For purposes of this Section 6(a), “"permanent disability” " means any disability as defined under the Company’s 's applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him in accordance with his obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.
Appears in 1 contract
Permanent Disability. In the event If ▇▇▇▇▇▇▇▇▇ shall become permanently incapacitated by reasons of the sickness, accident, or other physical or mental disability (“permanent disability” (Permanent Disability”) as hereinafter defined) of the Executive defined hereunder during the Term of Employmentthis Agreement, this Agreement and all obligations to ▇▇▇▇▇▇▇▇▇ shall cease except as provided below. Permanent Disability shall be determined in one of two ways: (1) ▇▇▇▇▇▇▇▇▇ shall be considered to be Permanently Disabled for purposes of this Agreement if he becomes entitled to Long-Term Disability benefits under the Company’s Long-Term Disability Plan, in which case, this Agreement and all obligations to ▇▇▇▇▇▇▇▇▇ shall cease except that for a period of twelve (12) months, the Company shall have supplement ▇▇▇▇▇▇▇▇▇’▇ Long-Term Disability payments to the rightextent necessary for the Long-Term Disability payments plus the supplemental payments to equal ▇▇▇▇▇▇▇▇▇’▇ Base Pay as defined in Section 3.1 herein; (2) alternatively, if ▇▇▇▇▇▇▇▇▇ becomes permanently incapacitated and such incapacitation is certified by a physician chosen by the Company and reasonably acceptable to ▇▇▇▇▇▇▇▇▇ (if he is then able to exercise sound judgment), and ▇▇▇▇▇▇▇▇▇ shall therefore be unable to perform his normal duties hereunder, then the employment of ▇▇▇▇▇▇▇▇▇ hereunder and this Agreement may be terminated by ▇▇▇▇▇▇▇▇▇ or the Company upon thirty (30) days’ written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of other party following such notice certification. Should ▇▇▇▇▇▇▇▇▇ not acquiesce (or such later date as should he be unable to acquiesce) in the selection of the certifying doctor, a doctor chosen by ▇▇▇▇▇▇▇▇▇ (or if he is not then able to exercise sound judgment, by his spouse or personal representative) and reasonably acceptable to the Company shall be specified required to concur in the medical determination of incapacitation, failing which, the two doctors shall designate a third doctor whose decision shall be determinative as of the end of the calendar month in which such notice)concurrence or third-doctor decision, as the case may be, is made. In After the event of such terminationfinal certification is made and the 30-day written notice is provided, the Company shall have no further obligations hereunderpay to ▇▇▇▇▇▇▇▇▇, except that the Executive shall at such times as Base Salary provided for in Section 3.1 of this Agreement would normally be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to the date of his termination of employmentpaid, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro▇▇▇▇▇▇▇▇▇’▇ then-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 current Base Salary for a period of one twelve (112) year from the date months. Under either determination of terminationPermanent Disability, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) ▇▇▇▇▇▇▇▇▇ shall be paid no later than December 31 the amount of Seventy-Five percent (75%) of the second calendar year following Incentive Target for the year in which disability is certified prorated to the Executive’s termination last day worked. If no Incentive Target has been determined for permanent disability the year in which final certification occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will last determined Incentive Target shall apply. Following termination pursuant to either of the above alternatives, any rights and benefits ▇▇▇▇▇▇▇▇▇ may have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy employee benefit plans and programs of the Company in which ▇▇▇▇▇▇▇▇▇ is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him a participant shall be determined in accordance with his obligations the terms and provisions of such plans and programs. All awards of restricted stock, stock options and any other benefits under Section 2 hereof for a period any long-term incentive plans shall be handled in accordance with the terms of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month periodthe relevant plan and agreements entered into between ▇▇▇▇▇▇▇▇▇ and the Company with respect to such awards.
Appears in 1 contract
Permanent Disability. In the event of the “permanent disability” (as hereinafter defined) of the Executive during the Term of Employment, the Company shall have the right, upon written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder, except that the Executive shall be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to the date of his their termination of employment, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; the terms of this Agreement (ii) bonus compensation earned but not paid under Section 3(b) hereof this Agreement that relates to any Contract Year fiscal year ended prior to the date of his their termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he the Executive remained in employment through the end of the Contract Year fiscal year during which termination due to permanent disability occurred, based on the portion of the Contract Year fiscal year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereofhereof (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination); (iv) reimbursement for financial counseling services specified under Section 5(b6(b) hereof in the amount of $5,000.00 for a period of one (1) year from the date of termination, paid in accordance with Section 5(b) hereofhereof (provided, that no such payment shall be made prior to the sixtieth (60th) day following the Executive’s date of termination); and (v) his their Base Salary under Section 3(aat a rate equal to the highest rate during the past twelve (12) hereof months for a period of one (1) year from the date of termination as a result of permanent disability disability, paid in accordance with Section 3(a) hereof (the “Disability Continuation Period”), paid in accordance with and Section 6(l)(i7(j)(i) hereofhereof (provided, that such payments shall not commence prior to the sixtieth (60th) day following the Executive’s date of termination); further provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l))this Section. Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l)the terms of this Section, a lump sum cash paymentspayment, to be paid in accordance with Section 6(l)(i)within 60 days of the end of the Disability Continuation Period, equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (yv) the excess of the benefit that would have been received by the Executive had he they been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, sum the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas▇▇▇▇▇. Reg. §1.409A-1(b)(9)(iii)(A) shall be paid no later than December 31 of the second calendar year following the year in which the Executive’s termination for permanent disability occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l7(j) of this Agreement. Except as otherwise provided in this Section 6(a7(a), the Company will have no further obligations under Sections 3, 4 and 5 6 hereof or otherwise. For purposes of this Section 6(a7(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him the Executive in accordance with his their obligations under Section 2 hereof for a period of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month period.
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Permanent Disability. In the event If ▇▇▇▇▇▇▇ shall become permanently incapacitated by reasons of the sickness, accident, or other physical or mental disability (“permanent disability” (Permanent Disability”) as hereinafter defined) of the Executive defined hereunder during the Term of Employmentthis Agreement, this Agreement and all obligations to ▇▇▇▇▇▇▇ shall cease except as provided below. Permanent Disability shall be determined in one of two ways: (1) ▇▇▇▇▇▇▇ shall be considered to be Permanently Disabled for purposes of this Agreement if he becomes entitled to Long-Term Disability benefits under the Company’s Long-Term Disability Plan, in which case, this Agreement and all obligations to ▇▇▇▇▇▇▇ shall cease except that for a period of twelve (12) months, the Company shall have supplement ▇▇▇▇▇▇▇’▇ Long-Term Disability payments to the rightextent necessary for the Long-Term Disability payments plus the supplemental payments to equal ▇▇▇▇▇▇▇’▇ Base Pay as defined in Section 3.1 herein; (2) alternatively, if ▇▇▇▇▇▇▇ becomes permanently incapacitated and such incapacitation is certified by a physician chosen by the Company and reasonably acceptable to ▇▇▇▇▇▇▇ (if he is then able to exercise sound judgment), and ▇▇▇▇▇▇▇ shall therefore be unable to perform his normal duties hereunder, then the employment of ▇▇▇▇▇▇▇ hereunder and this Agreement may be terminated by ▇▇▇▇▇▇▇ or the Company upon thirty (30) days’ written notice to the Executive, to terminate the Executive’s employment hereunder, effective upon the giving of other party following such notice certification. Should ▇▇▇▇▇▇▇ not acquiesce (or such later date as should he be unable to acquiesce) in the selection of the certifying doctor, a doctor chosen by ▇▇▇▇▇▇▇ (or if he is not then able to exercise sound judgment, by his spouse or personal representative) and reasonably acceptable to the Company shall be specified required to concur in the medical determination of incapacitation, failing which, the two doctors shall designate a third doctor whose decision shall be determinative as of the end of the calendar month in which such notice)concurrence or third-doctor decision, as the case may be, is made. In After the event of such terminationfinal certification is made and the 30-day written notice is provided, the Company shall have no further obligations hereunderpay to ▇▇▇▇▇▇▇, except that the Executive shall at such times as Base Salary provided for in Section 3.1 of this Agreement would normally be entitled to receive (i) any accrued but unpaid salary and other amounts to which the Executive otherwise is entitled hereunder prior to the date of his termination of employmentpaid, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination of employment, to be paid in accordance with Section 3(b) hereof; (iii) a pro▇▇▇▇▇▇▇’▇ then-rata portion of the annual bonus payout that the Executive would have been entitled to receive had he remained in employment through the end of the Contract Year during which termination due to permanent disability occurred, based on the portion of the Contract Year that has elapsed prior to such termination, and paid in accordance with Section 3(b) hereof; (iv) reimbursement for financial counseling services specified under Section 5(b) hereof in the amount of $5,000.00 current Base Salary for a period of one twelve (112) year from the date months. Under either determination of terminationPermanent Disability, in accordance with Section 5(b) hereof; and (v) his Base Salary under Section 3(a) hereof for a period of one (1) year from the date of termination as a result of permanent disability (the “Disability Continuation Period”), paid in accordance with Section 6(l)(i) hereof; provided, however, that the Company shall only be required to pay that amount of the Executive’s Base Salary which shall not be covered by short-term disability payments or benefits or long-term disability payments or benefits, if any, to the Executive under any Company plan or arrangement. In addition, upon termination for permanent disability, the Executive shall continue to participate, to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements of the Company during the Disability Continuation Period (disregarding any required delay in payments under Section 6(l)). Thereafter, the Executive’s rights to participate in such programs and plans, or to receive similar coverage, if any, shall be as determined under such programs. Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Disability Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the sum of (x) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Disability Continuation Period (or other period as expressly provided herein), and (y) the excess of the benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Disability Continuation Period (or other period as expressly provided herein) over the actual benefit to which the Executive is entitled, in each case, under any and all qualified and non-qualified defined benefit pension plans and qualified defined contribution retirement savings plans in which the Executive participates as of the date of termination of employment, calculated as of and based upon the Executive’s date of termination (such sum, the “Pension Replacement Payment”). Notwithstanding the above, any amounts payable under this Section 6(a) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) ▇▇▇▇▇▇▇ shall be paid no later than December 31 Seventy-Five Percent (75%) of the second calendar year following amount of his Incentive Target for the year in which disability is certified prorated to the Executive’s termination last day worked. If no Incentive Target has been determined for permanent disability the year in which final certification occurs; any amounts payable under this Section 6(a) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(a), the Company will last determined Incentive Target shall apply. Following termination pursuant to either of the above alternatives, any rights and benefits ▇▇▇▇▇▇▇ may have no further obligations under Sections 3, 4 and 5 hereof or otherwise. For purposes of this Section 6(a), “permanent disability” means any disability as defined under the Company’s applicable disability insurance policy or, if no such policy employee benefit plans and programs of the Company in which ▇▇▇▇▇▇▇ is available, any physical or mental disability or incapacity that renders the Executive incapable of performing the services required of him a participant shall be determined in accordance with his obligations the terms and provisions of such plans and programs. All awards of restricted stock, stock options and any other benefits under Section 2 hereof for a period any long-term incentive plans shall be handled in accordance with the terms of six (6) consecutive months or for shorter periods aggregating six (6) months during any twelve-month periodthe relevant plan and agreements entered into between ▇▇▇▇▇▇▇ and the Company with respect to such awards.
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