Qualifying Termination. If the Executive's employment is terminated in a Qualifying Termination during the Protection Period, then the Executive shall be entitled to the following benefits: (i) a pro rata portion (based on the number of calendar days that have elapsed before the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect for the fiscal year in which the Date of Termination occurs; provided that, if the Executive is entitled to receive a retention/stay bonus in connection with the Change in Control that is payable with respect to the fiscal year in which the Executive's Qualifying Termination occurs, the Executive shall receive the greater of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein; (ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control; (iii) $10,000 for two years of tax and financial planning services; (iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement).
Appears in 3 contracts
Sources: Executive Severance Agreement (Officemax Inc /Oh/), Executive Severance Agreement (Officemax Inc /Oh/), Executive Severance Agreement (Officemax Inc /Oh/)
Qualifying Termination. If Upon a Qualifying Termination, the Executive will receive the Accrued Payments and, provided the Executive remains in compliance with the terms of this Agreement and has met the requirements of the Release Obligation, the following severance benefits (the “Severance Benefits”):
(a) The Company shall provide the Executive's employment is terminated in a Qualifying Termination during the Protection Period, then the Executive shall be entitled to as severance, the following benefits:
(i) a pro rata portion nine (based on the number of calendar days that have elapsed before the Executive's Date of Termination9) months of the Executive's plan/target annual incentive award ’s then-current Base Salary (disregarding any reduction that may have given rise to Good Reason) (the “Cash Severance”). The Severance will be paid in effect equal bi-weekly installments as a continuation on the Employer’s regular payroll for a period of nine (9) months (the fiscal year in which “Severance Period”), beginning no later than the Date of Termination occurs; first regularly-scheduled payroll date following the sixtieth (60th) day after the Executive’s Separation from Service, provided that, if the Executive has fulfilled the Release Obligation. The Severance will be subject to all applicable withholding and deductions; and
(ii) If Executive is entitled eligible for and timely elects continued group health plan coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 or any state law of similar effect (“COBRA”) following Executive’s Qualifying Termination, the Company will pay Executive’s COBRA group health insurance premiums (the “COBRA Severance”) for Executive and Executive’s eligible dependents directly to receive a retention/stay bonus the insurer until the earliest of (A) the end of the period immediately following Executive’s Qualifying Termination that is equal to the Severance Period (the “COBRA Payment Period”), (B) the expiration of Executive’s eligibility for continuation coverage under COBRA, or (C) the date when Executive becomes eligible for substantially equivalent health insurance coverage in connection with new employment or self-employment. For purposes of this Section, references to COBRA premiums shall not include any amounts payable by Executive under a Section 125 health care reimbursement plan under the Change Code. Notwithstanding the foregoing, if at any time the Company determines, in Control its sole discretion, that is payable with respect it cannot pay the COBRA premiums without potentially incurring financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), the Company will instead pay Executive on the last day of each remaining month of the COBRA Payment Period, a fully taxable cash payment equal to the fiscal year COBRA premiums for that month, subject to applicable tax withholdings (such amount, the “Special Severance Payment”), which payments shall continue until the earlier of expiration of the COBRA Payment Period or the date when Executive becomes eligible for substantially equivalent health insurance coverage in connection with new employment or self-employment. On the first payroll date following the effectiveness of the Separation Agreement, the Company will make the first payment to the insurer under this clause (and, in the case of the Special Severance Payment, such payment will be to Executive, in a lump sum) equal to the aggregate amount of payments that the Company would have paid through such date had such payments instead commenced on the Separation Date, with the balance of the payments paid thereafter on the schedule described above. If Executive becomes eligible for coverage under another employer’s group health plan, Executive must immediately notify the Company of such event, and all payments and obligations under this subsection shall cease, and
(b) If, following the end of the Bonus Year in which the Executive's ’s Qualifying Termination occurs, the Board determines in good faith that the applicable Bonus objectives and milestones for that Bonus Year have been achieved, Executive shall will receive a Bonus, as so determined by the greater Board and pro-rated based on the date of the applicable stay or retention bonus or Executive’s Qualifying Termination (the pro rata plan/target bonus provided herein, but the Executive shall not “Bonus Severance”). The Bonus Severance will be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided payment timing provisions set forth in Section 1274(b)(2)(B) of the Internal Revenue Code of 19862.2, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined subject to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated all applicable deductions and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)withholdings.
Appears in 3 contracts
Sources: Executive Employment Agreement (Heliogen, Inc.), Executive Employment Agreement (Heliogen, Inc.), Executive Employment Agreement (Heliogen, Inc.)
Qualifying Termination. If If, during the Term, (i) Executive resigns for Good Reason or (ii) the Bank terminates Executive's ’s employment is terminated other than for Cause or Disability (each, a “Qualifying Termination”), then, subject to Section 6 hereof:
(1) the Bank shall pay to Executive in a Qualifying Termination during lump sum in cash within thirty (30) days after the Protection Perioddate of termination, then the exact payment date to be determined by the Bank, Executive’s Base Salary through the date of termination to the extent not theretofore paid (the “Accrued Salary”), (ii) any earned and unpaid Annual Bonus for any year prior to the year in which the date of termination occurs, and (iii) any unreimbursed business expenses incurred by Executive on or before the date of termination;
(2) Executive shall be entitled to the following benefits:
(i) receive a pro rata portion (based on the number of calendar days that have elapsed before the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect Annual Bonus for the fiscal year in which the Date date of Termination termination occurs; provided that, equal to (i) the Annual Bonus, if any, that would have been earned by Executive for such year if he had remained employed on such payment date, based on actual performance under applicable financial metrics, multiplied by (ii) a fraction, the numerator of which is the number of days worked by Executive during such final year and the denominator of which is entitled 365 (the “Final Year Pro Rata Bonus”), and such Final Year Pro Rata Bonus shall be paid a single lump sum cash payment at the time such bonus awards are normally paid for such plan year;
(3) the Bank shall pay to receive a retention/stay bonus in connection with the Change in Control that is payable with respect Executive an amount equal to the fiscal sum of (x) Executive’s then-current Base Salary plus (y) the average of the Annual Bonuses earned by Executive for each of the three (3) calendar years immediately preceding the year in which the Executive's date of termination occurs (the “Non-CIC Severance Payment”); provided, however, that if such Qualifying Termination occursoccurs during the period beginning three months prior to, and ending eighteen (18) months after the closing of, a Change in Control (as defined in Exhibit A attached hereto), then the Bank shall pay to Executive an amount equal to one and five-tenths (1.5) times the sum of (i) Executive’s then-current Base Salary plus (ii) the average of the Annual Bonuses earned by Executive for each of the three calendar years immediately preceding the year in which the date of termination occurs (the “CIC Severance Payment”). Subject to Sections 6 and 11 hereof, the Executive Non-CIC Severance Payment or the CIC Severance Payment, as applicable, shall receive be paid in a single lump sum in cash within sixty (60) days following the greater date of termination (except that the excess of the applicable stay or retention bonus or CIC Severance Payment over the pro rata plan/target bonus provided hereinnon-CIC Severance Payment on the date of the Qualifying Termination shall be paid within sixty (60) days following the date of the closing of the relevant Change in Control if the termination of employment occurs during the period beginning three months prior to and ending on the date of the Change in Control), but the exact payment date to be determined by the Bank. For the avoidance of doubt, Executive shall not be entitled to receive both the retention/stay bonus CIC Severance Payment and the pro rata plan/target bonus provided hereinNon-CIC Severance Payment;
(ii4) if Executive elects to continue participation in lieu any group medical, dental, vision and/or prescription drug plan benefits to which Executive and/or Executive’s eligible dependents would be entitled under Section 4980B of any further salary payments to the Executive Code (COBRA), then for periods subsequent to eighteen (18) months following the Date date of Termination and other severance benefitstermination (the “COBRA Reimbursement Period”), the Company Bank shall pay to Executive monthly payments (the Executive a lump sum severance payment in “COBRA Payments”) of an amount equal to two (2) times the sum excess of (Aa) the higher COBRA cost of such coverage over (Ib) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the amount that Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been had to pay for such coverage if he had remained employed during the COBRA Reimbursement Period and paid to the Executive based on actual performance but active employee rate for any such guarantee) or (y) the Executive's plan/target bonus opportunity coverage, less withholding for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax taxes and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable lawsimilar items; provided, however, that, that (i) if the amounts Executive becomes eligible to receive group health benefits under a program of such payments cannot be finally determined on a subsequent employer or before such dayotherwise, the Company Bank’s obligation to pay any portion of the cost of health coverage as described herein shall cease, except as otherwise provided by law; and (ii) the COBRA Reimbursement Period shall only run for the period during which Executive is eligible to elect health coverage under COBRA and timely elects such coverage;
(5) the Bank shall continue to pay (no less frequently than monthly) Executive’s long-term disability premiums and life insurance premiums for Executive for a period of twelve (12) months (the “Other Premium Payments”); and
(6) to the extent not theretofore paid or provided, the Bank shall timely pay or provide to Executive on such day an estimateany other amounts or benefits required to be paid or provided or which Executive is eligible to receive under any plan, as determined in good faith by the Companyprogram, policy or practice or contract or agreement of the minimum amount of Bank and its affiliated companies (such payments other amounts and benefits shall be hereinafter referred to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement“Other Benefits”).
Appears in 3 contracts
Sources: Employment Agreement (Prime Meridian Holding Co), Employment Agreement (Prime Meridian Holding Co), Employment Agreement (Prime Meridian Holding Co)
Qualifying Termination. If the Executive's employment is terminated in a Qualifying Termination during the Protection Period, then the Executive shall be entitled to the following benefits:Notwithstanding Section 5(a):
(i) With respect to the TRSUs, in the event of the Participant’s Qualifying Termination prior to the vesting of all tranches of the TRSUs (i.e, prior to January 1st of the third calendar year following the Effective Date), all unvested TRSUs shall automatically and immediately vest as of the Termination Date. In such case, such number of TRSUs shall be deemed vested in full and settled pursuant to Section 4(a), with the “Vesting Date” meaning the Termination Date.
(ii) With respect to the PRSUs, in the event of the Participant’s Qualifying Termination prior to the completion of the Performance Period, a pro rata portion (of the PRSUs which may be earned under the Award will become earned, with the actual number of Earned PRSUs determined based on actual performance through the end of the month immediately preceding the Termination Date, measured against the Performance Component based on actual performance through the end of the month immediately preceding the Termination Date. The number of Earned PRSUs calculated in accordance with this Section which become vested will be pro-rated based on the number of calendar days that have elapsed before in the Executive's Date Performance Period completed prior to the Termination Date, and such pro-rated number of TerminationEarned PRSUs (and any associated PRSU Dividend Equivalent Amount) shall be deemed vested in full and settled pursuant to Section 4(a), with the “Vesting Date” being the Termination Date. All other PRSUs and PRSU Dividend Equivalent Amounts shall be forfeited automatically and without further action as of the Executive's plan/target annual incentive award in effect for the fiscal year in which the Date of Termination occurs; provided that, if the Executive is entitled to receive a retention/stay bonus in connection with the Change in Control that is payable with respect to the fiscal year in which the Executive's Qualifying Termination occurs, the Executive shall receive the greater of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;Date.
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all optionsWith respect to the PRSUs, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible event of the Participant’s Qualifying Termination as of or after the completion of the Performance Period, but prior to receive benefits the last Vesting Date applicable to the Earned PRSUs under this Section 4(dthe Award (i.e., prior to January 1, 20[ ]), all unvested Earned PRSUs shall automatically and immediately vest as of the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable lawTermination Date; provided, however, thatthat if such Qualifying Termination occurs prior to the Determination Date, then the PRSUs shall remain outstanding until the Determination Date, the number of Earned PRSUs, if the amounts of such payments cannot any, shall be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Companyaccordance with Section 2(b), and all Earned PRSUs shall automatically and immediately vest as of the minimum amount of Determination Date. In such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be duecase, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) number of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants Earned PRSUs (and any such written opinions or advice associated PRSU Dividend Equivalent Amount) shall be attached deemed vested in full and settled pursuant to Section 4(a), with the “Vesting Date” being the Termination Date or the Determination Date, as applicable.
(iv) With respect to the statementOPRSUs, in the event of the Participant’s Qualifying Termination prior to the completion of the Performance Period, a portion of the OPRSUs which may be earned and granted under the Award will become earned and granted no later than immediately prior to the Participant’s Qualifying Termination, with the actual number of Earned OPRSUs determined based on actual performance through the end of the calendar quarter immediately preceding the Termination Date, measured against the Performance Component based on actual performance through the end of the calendar quarter immediately preceding the Termination Date. The number of Earned OPRSUs calculated in accordance with this Section which become vested will be pro-rated based on the number of days in the Performance Period completed prior to the Termination Date, and such pro-rated number of Earned OPRSUs (and any associated Dividend Equivalent Amount) shall be deemed vested in full and settled pursuant to Section 4(a), with the “Vesting Date” being the Termination Date. All other rights to earn and/or be granted OPRSUs or OPRSU Dividend Equivalent Amounts shall be forfeited automatically and without further action as of the Termination Date.
(v) With respect to the OPRSUs, in the event of the Participant’s Qualifying Termination as of or after the completion of the Performance Period (but for purposes of this sentence, Qualifying Termination shall include Retirement), but prior to the last Vesting Date applicable to the Earned OPRSUs under the Award (i.e., January 1, 20[ ]), all unvested Earned OPRSUs shall automatically and immediately vest as of the Termination Date; provided, however, that if such Qualifying Termination occurs prior to the Determination Date, then the number of Earned OPRSUs, if any, shall be determined as of the Determination Date in accordance with Section 2(c), and all Earned OPRSUs, if any, shall be granted and shall automatically and immediately vest as of the Determination Date. In such case, such number of Earned OPRSUs (and any associated OPRSU Dividend Equivalent Amount) shall be deemed vested in full and settled pursuant to Section 4(a), with the “Vesting Date” being the Termination Date or the Determination Date, as applicable.
Appears in 3 contracts
Sources: Restricted Stock Unit Agreement (Brixmor Operating Partnership LP), Restricted Stock Unit Agreement (Brixmor Operating Partnership LP), Restricted Stock Unit Agreement (Brixmor Operating Partnership LP)
Qualifying Termination. If If, during the Term, Executive incurs a Qualifying Termination, then subject to and conditioned upon Executive's employment is terminated ’s timely execution and non-revocation of a general release of claims in a Qualifying form prescribed by the Company (the “Release”) which becomes effective and irrevocable no later than sixty (60) days following the Termination during Date and Executive’s continued compliance with the Protection Periodprovisions of Section 6 hereof, then the Company shall pay or provide to Executive shall be entitled the following (in addition to the following benefits:Accrued Obligations):
(i) The Company shall continue to pay to Executive amounts equal to Executive’s then-current Base Salary (which, in the event of a pro rata portion resignation by Executive for Good Reason due to a material reduction in Executive’s Base Salary, shall be the Base Salary in effect immediately prior to such reduction) (based the “Continued Salary Severance”) during the period commencing on the number of calendar days that have elapsed before Termination Date and ending on the Executive's Date of Termination) last day of the Executive's plan/target annual incentive award then-current Term (the “Severance Period”). The Company shall pay the Continued Salary Severance in effect for substantially equal installments in accordance with the fiscal year in Company’s customary payroll practices during the Severance Period; provided, that no such payments shall be made prior to the date on which the Date of Termination occurs; provided thatRelease becomes effective and irrevocable and, if the aggregate period during which Executive is entitled to receive consider and/or revoke the Release spans two (2) calendar years, no Continued Salary Severance payments shall be made prior to the beginning of the second (2nd) such calendar year (and any payments otherwise payable prior thereto shall instead be paid on the first regularly scheduled Company payroll date occurring in the latter such calendar year or, if later, the first regularly scheduled Company payroll date occurring after the Release becomes effective and irrevocable (in either case, the “First Payroll Date”)).
(ii) The Company shall pay to Executive a retention/stay bonus lump sum payment (the “Lump Sum Severance”) equal to (A) two (2) times the Average Compensation less (B) an amount equal to the Continued Salary Severance, payable in connection with a single lump sum cash payment on the Change First Payroll Date. For purposes of this Agreement, “Average Compensation” is the average of the sum of Executive’s actual (x) Base Salary (which, in Control that is payable with respect the event of a resignation by Executive for Good Reason due to a material reduction in Executive’s Base Salary, shall be the Base Salary in effect immediately prior to such reduction) and (y) Annual Bonus, in each case, for the three (3) fiscal years ending immediately prior to the fiscal year in which the Executive's Qualifying Termination occurs. For the avoidance of doubt, in no event shall the Executive shall receive the greater sum of the applicable stay or retention bonus or Lump Sum Severance plus the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to Continued Salary Severance exceed two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)Average Compensation.
Appears in 3 contracts
Sources: Employment Agreement (Kennedy-Wilson Holdings, Inc.), Employment Agreement (Kennedy-Wilson Holdings, Inc.), Employment Agreement (Kennedy-Wilson Holdings, Inc.)
Qualifying Termination. If the Executive's your employment is terminated in a Qualifying Termination during the Protection PeriodTerm without Cause (as defined below) by the Company or by you for “Good Reason” (as defined below) (each, then a “Qualifying Termination”), the Executive Company shall be entitled pay you (or cause to occur, as applicable) each of the following benefitsfollowing:
(iA) cash severance installment payments in an aggregate amount equal to one hundred percent (100%) of your annual Base Salary as in effect on your Termination Date (“Cash Severance”) being paid in ten monthly pro-rata installments with the first installment of Cash Severance being paid on the 90th day after your “separation from service” (within the meaning of Internal Revenue Code (“Code”) Section 409A) from the Company (“Termination Date”) and the last installment being paid on the first anniversary of the Termination Date;
(B) a pro rata portion pro-rated cash Performance Bonus, calculated as follows: the product of (based on x) the number of calendar days Performance Bonus that would have elapsed before the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect for been earned during the fiscal year in which the Date Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as President of Termination occurs; provided thatWorldwide Cinema of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the Executive extent to which the Company achieved the MBO Goals (or the performance standards set forth in any successor incentive plan) during such fiscal year, multiplied by (y) a fraction, the numerator of which is entitled the number of days of the Company’s fiscal year prior to receive the Termination Date and the denominator of which is 365 days. This pro-rated Performance Bonus (a retention/stay bonus in connection with “Pro-Rated Bonus”) shall be paid to you no later than the Change in Control that is payable with respect to 15th day of the third month immediately following the fiscal year in which the Executive's Qualifying Termination occurshas occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Termination Date) for all group employee benefit coverage continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) to the same extent provided by the Company’s group plans immediately before the Termination Date for twelve (12) months after the Termination Date or until you become eligible for group insurance benefits from another employer, whichever occurs first, provided that you timely elect COBRA coverage (“COBRA Benefits”). You agree (i) at any time either before or during the period of time you are receiving benefits under this subsection (C), to inform the Company promptly in writing if you become eligible to receive group health coverage from another employer; and (ii) that you may not increase the number of your designated dependents, if any, during this time unless you do so at your own expense. The period of such COBRA Benefits shall be considered part of your COBRA coverage entitlement period, and may, for tax purposes, be considered income to you; and
(D) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the Executive shall receive the greater of the applicable stay payments and benefits that may be provided under Sections 3(d)(i) above or retention bonus or the pro rata plan/target bonus provided herein, but the Executive 3(d)(ii) below shall not be entitled to both the retention/stay bonus provided more than once and the pro rata plan/target bonus if payments and benefits are provided herein;
(ii) in lieu under either one of any further salary these subsections, then no payments to the Executive for periods subsequent to the Date or benefits will otherwise be provided again under either one of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)these subsections.
Appears in 2 contracts
Sources: Employment Agreement (RealD Inc.), Employment Agreement (RealD Inc.)
Qualifying Termination. If the Executive's your employment is terminated in a Qualifying Termination during the Protection PeriodTerm without Cause (as defined below) by the Company or by you for “Good Reason” (as defined below) (each, then a “Qualifying Termination”), the Executive Company shall be entitled pay you (or cause to occur, as applicable) each of the following benefitsfollowing:
(iA) cash severance installment payments in an aggregate amount equal to one hundred percent (100%) of your annual Base Salary as in effect on your Termination Date (“Cash Severance”) being paid in ten monthly pro-rata installments with the first installment of Cash Severance being paid on the 90th day after your “separation from service” (within the meaning of Internal Revenue Code (“Code”) Section 409A) from the Company (“Termination Date”) and the last installment being paid on the first anniversary of the Termination Date;
(B) a pro rata portion pro-rated cash Performance Bonus, calculated as follows: the product of (based on x) the number of calendar days Performance Bonus that would have elapsed before the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect for been earned during the fiscal year in which the Date Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as President of Termination occurs; provided thatthe Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the Executive extent to which the Company achieved the MBO Goals (or the performance standards set forth in any successor incentive plan) during such fiscal year, multiplied by (y) a fraction, the numerator of which is entitled the number of days of the Company’s fiscal year prior to receive the Termination Date and the denominator of which is 365 days. This pro-rated Performance Bonus (a retention/stay bonus in connection with “Pro-Rated Bonus”) shall be paid to you no later than the Change in Control that is payable with respect to 15th day of the third month immediately following the fiscal year in which the Executive's Qualifying Termination occurshas occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Termination Date) for all group employee benefit coverage continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) to the same extent provided by the Company’s group plans immediately before the Termination Date for twelve (12) months after the Termination Date or until you become eligible for group insurance benefits from another employer, whichever occurs first, provided that you timely elect COBRA coverage (“COBRA Benefits”). You agree (i) at any time either before or during the period of time you are receiving benefits under this subsection (C), to inform the Company promptly in writing if you become eligible to receive group health coverage from another employer; and (ii) that you may not increase the number of your designated dependents, if any, during this time unless you do so at your own expense. The period of such COBRA Benefits shall be considered part of your COBRA coverage entitlement period, and may, for tax purposes, be considered income to you; and
(D) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the Executive shall receive the greater of the applicable stay payments and benefits that may be provided under Sections 3(d)(i) above or retention bonus or the pro rata plan/target bonus provided herein, but the Executive 3(d)(ii) below shall not be entitled to both the retention/stay bonus provided more than once and the pro rata plan/target bonus if payments and benefits are provided herein;
(ii) in lieu under either one of any further salary these subsections, then no payments to the Executive for periods subsequent to the Date or benefits will otherwise be provided again under either one of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)these subsections.
Appears in 2 contracts
Sources: Employment Agreement (RealD Inc.), Employment Agreement (RealD Inc.)
Qualifying Termination. If the Executive's your employment is terminated in a Qualifying Termination during the Protection PeriodTerm without Cause (as defined below) by the Company or by you for “Good Reason” (as defined below) (each, then a “Qualifying Termination”), the Executive Company shall be entitled pay you (or cause to occur, as applicable) each of the following benefitsfollowing:
(iA) cash severance installment payments in an aggregate amount equal to one hundred percent (100%) of your annual Base Salary as in effect on your Termination Date (“Cash Severance”) being paid in ten monthly pro-rata installments with the first installment of Cash Severance being paid on the 90th day after your “separation from service” (within the meaning of Internal Revenue Code (“Code”) Section 409A) from the Company (“Termination Date”) and the last installment being paid on the first anniversary of the Termination Date;
(B) a pro rata portion pro-rated cash Performance Bonus, calculated as follows: the product of (based on x) the number of calendar days Performance Bonus that would have elapsed before the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect for been earned during the fiscal year in which the Date Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Financial Officer and Chief Operating Officer of Termination occurs; provided thatthe Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the Executive extent to which the Company achieved the MBO Goals (or the performance standards set forth in any successor incentive plan) during such fiscal year, multiplied by (y) a fraction, the numerator of which is entitled the number of days of the Company’s fiscal year prior to receive the Termination Date and the denominator of which is 365 days. This pro-rated Performance Bonus (a retention/stay bonus in connection with “Pro-Rated Bonus”) shall be paid to you no later than the Change in Control that is payable with respect to 15th day of the third month immediately following the fiscal year in which the Executive's Qualifying Termination occurshas occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Termination Date) for all group employee benefit coverage continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) to the same extent provided by the Company’s group plans immediately before the Termination Date for twelve (12) months after the Termination Date or until you become eligible for group insurance benefits from another employer, whichever occurs first, provided that you timely elect COBRA coverage (“COBRA Benefits”). You agree (i) at any time either before or during the period of time you are receiving benefits under this subsection (C), to inform the Company promptly in writing if you become eligible to receive group health coverage from another employer; and (ii) that you may not increase the number of your designated dependents, if any, during this time unless you do so at your own expense. The period of such COBRA Benefits shall be considered part of your COBRA coverage entitlement period; and
(D) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the Executive shall receive the greater of the applicable stay payments and benefits that may be provided under Sections 3(d)(i) above or retention bonus or the pro rata plan/target bonus provided herein, but the Executive 3(d)(ii) below shall not be entitled to both the retention/stay bonus provided more than once and the pro rata plan/target bonus if payments and benefits are provided herein;
(ii) in lieu under either one of any further salary these subsections, then no payments to the Executive for periods subsequent to the Date or benefits will otherwise be provided again under either one of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)these subsections.
Appears in 2 contracts
Sources: Employment Agreement (RealD Inc.), Employment Agreement (RealD Inc.)
Qualifying Termination. The Company may terminate your employment as CEO and President without Cause at any time and for any reason with notice or you may resign your employment as CEO and President for Good Reason upon thirty (30) days advance written notice. If the Executive's your employment as CEO and President is terminated in due to a Qualifying Termination during the Protection PeriodTermination, then you will be eligible to receive the Executive items set forth below subject to your timely compliance with Section 6(e) and further provided that no payments for such Qualifying Termination shall be entitled to made until on or after the following benefits:date of a “separation from service” within the meaning of Code Section 409A.
(i) If the Company terminates your employment as CEO and President between July 1 and September 15 of a given fiscal year, the Company shall pay you for any accrued but unpaid bonus payable pursuant to Section 3(b) above with respect to the immediately preceding completed fiscal year (with such payment occurring at the same time that the final bonus payment would be made if you had remained employed and taking into account any interim payments previously made) (the “Earned Bonus”);
(ii) The Company shall pay you a pro rata portion (based on the number of calendar days that have elapsed before the Executive's Date any bonus payable pursuant to Section 3(b) above in respect of Termination) of the Executive's plan/target annual incentive award in effect for the fiscal year in which the Termination Date of Termination occurs; provided that, if any, pro-rated for the Executive is entitled to receive a retention/stay bonus number of days in connection with the Change in Control that is payable with respect to the such fiscal year in which you were employed over the Executive's Qualifying Termination occurs, the Executive shall receive the greater number of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) total calendar days in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in (with such payment occurring at the Executive's plan/target annual incentive same time that the bonus opportunity on or after a Change in Controlpayment would be made if you had remained employed) (the “Pro Rata Bonus”);
(iii) $10,000 Subject to Section 10 below, the Company shall provide you with cash payments over the eighteen (18)-month period following your Termination Date (the “Severance Period”) equal in the aggregate to your then current annual Base Salary (prior to any reduction giving rise to Good Reason) pro-rated for two years of tax and financial planning servicesthe Severance Period. The cash payments provided by this subpart (iii) shall be paid to you in substantially equal installments payable under regular payroll practices over the Severance Period, provided that once such payments commence, they will include any unpaid amounts accrued from your Termination Date;
(iv) full and immediate vesting The Company shall continue to pay the Company portion of the premiums for your Company group medical insurance coverage (or alternative comparable coverage) during the Severance Period provided you continue to timely pay (including pursuant to deductions from payments you receive during the Severance Period in accordance with the Company’s regular payroll practices) the same portion (if any) of the necessary premium that you were responsible to pay as of immediately before your Termination Date. In all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d)cases, the Executive coverage (and/or reimbursement payments) provided in this subpart shall be required to execute and deliver a validimmediately terminate if you are offered comparable coverage in connection with your employment by another employer; and
(v) For purposes of this Agreement, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which you may resign your employment from the Company shall deliver to the Executive promptly as CEO and President for “Good Reason” within ninety (90) days after the date that any one of his Qualifying Terminationthe following events described in subparts (1) through (3) (any one of which will constitute “Good Reason”) has first occurred without your written consent. Your resignation for Good Reason will only be effective if the Company has not cured or remedied the Good Reason event within thirty (30) days after its receipt of your written notice (such notice shall describe in reasonable detail the basis and underlying facts supporting your belief that a Good Reason event has occurred). The payments Such notice of your intention to resign for Good Reason must be provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, to the Company shall pay within sixty (60) days of the initial existence of a Good Reason event. Failure to timely provide such written notice to the Executive on such day an estimate, as determined in good faith by Company or failure to timely resign your employment for Good Reason means that you will be deemed to have consented to and waived the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of TerminationGood Reason event. If the estimated payments exceed Company does timely cure or remedy the amount subsequently determined Good Reason event, then you may either resign your employment without Good Reason or you may continue to be due, such excess shall constitute a loan by the Company remain employed subject to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) terms of the Code)this Agreement. When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement).“Good Reason” means:
Appears in 2 contracts
Sources: Employment Agreement (Research Solutions, Inc.), Employment Agreement (Research Solutions, Inc.)
Qualifying Termination. If In the event an Eligible Executive's ’s employment is terminated in with the Company and, as applicable, each of its Affiliates, ends due to a Qualifying Termination during the Protection PeriodTermination, then the such Eligible Executive shall be entitled to receive the following benefitsAccrued Amounts, and so long as such Eligible Executive satisfies the Release Requirement and abides by the terms of Sections 7, 8, 9, 10 and 11 below, such Eligible Executive shall also be entitled to receive:
(i) a pro rata portion (based A lump sum severance payment to such Eligible Executive in an amount equal to the Severance Amount, payable on or prior to the number of calendar Company’s first regularly scheduled pay date that on or after the date that is 60 days that have elapsed before the after such Eligible Executive's ’s Date of Termination;
(ii) The Prior Year Annual Bonus, if applicable, payable in a lump sum at the time annual bonuses for such prior fiscal year are paid to executives of the Executive's plan/target annual incentive award Company, but in effect no event later than the Applicable March 15;
(iii) A Pro-Rata Annual Bonus for the fiscal year of the Company in which the Date of Termination occurs; provided that, if the Executive is entitled to receive a retention/stay bonus payable in connection with the Change in Control that is payable with respect to the fiscal year in which the Executive's Qualifying Termination occurs, the Executive shall receive the greater of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times at the sum of (A) the higher of (I) the Executive's time annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan bonuses for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been fiscal year are paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years executives of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth Applicable March 15; and
(30thiv) day after If such Eligible Executive timely and properly elects to continue coverage for such Eligible Executive and such Eligible Executive’s spouse and eligible dependents, if any, under the Company’s group health plans pursuant to COBRA, similar in the amounts and types of coverage provided under the Company’s group health plans to such Eligible Executive prior to such Eligible Executive’s Date of Termination. If , then during the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth COBRA Continuation Period (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Codeas defined below). When payments are made under this Section, the Company shall provide a subsidy, which subsidy shall be paid directly to the applicable COBRA administrator, on a monthly basis for the difference between the amount such Eligible Executive pays to effect and continue such coverage and the employee contribution amount that active executive employees of the Company pay for the same or similar coverage under such group health plans (the “COBRA Benefit”). Notwithstanding anything in the preceding provisions of this Section 5(a)(iv) to the contrary, (A) the election of COBRA continuation coverage and the payment of any premiums due with a written statement setting forth respect to such COBRA continuation coverage will remain such Eligible Executive’s sole responsibility, and the Company will assume no obligation for payment of any such premiums relating to such COBRA continuation coverage and (B) if the provision of the benefit described in this Section 5(a)(iv) cannot be provided in the manner described above without penalty, tax, or other adverse impact on the Company, then the Company and such Eligible Executive shall negotiate in good faith to determine an alternative manner in which the Company may provide a substantially equivalent benefit to such payments were calculated Eligible Executive without such adverse impact on the Company. If such Eligible Executive has not become eligible to be covered under a group health plan sponsored by another employer by the earlier of end of the COBRA Continuation Period or December 1 of the calendar year following the calendar year in which such Eligible Executive’s Date of Termination occurs (such earlier date being the “COBRA Payment Trigger Date”), then, on the Company’s first regularly scheduled pay date following the COBRA Payment Trigger Date (but in no event later than December 31 of the calendar year following the calendar year in which the such Eligible Executive’s Date of Termination occurs), the Company shall pay to Executive a lump sum cash payment equal to (A) the difference between the amount such Eligible Executive paid to effect and continue coverage for such Eligible Executive and his or her spouse and eligible dependents and the basis for such calculations including, without limitation, any opinions or other advice employee contribution amount that active executive employees of the Company has received from outside counselpay for the same or similar coverage under such group health plans, auditors or consultants if any, under the Company’s group health plan for the complete calendar month next preceding the COBRA Payment Trigger Date, multiplied by (and any B) the number of complete calendar months remaining in such written opinions or advice shall be attached to the statement)Eligible Executive’s Applicable Period.
Appears in 2 contracts
Sources: Participation Agreement (Talos Energy Inc.), Participation Agreement (Talos Energy Inc.)
Qualifying Termination. If In the Executive's employment is terminated in event of a Qualifying Termination during the Protection PeriodTermination, then the Executive shall be entitled subject to the following benefits:
you (i) continuing to comply with your obligations under your Employee Confidential Information and Inventions Assignment Agreement and (ii) delivering to the Company (and not revoking) an effective, general release of claims in a pro rata portion form and manner acceptable to the Company (based on the number “Release”) with such Release becoming effective (and non-revocable) no later than sixty (60) days following your termination of calendar days that have elapsed before employment (collectively, the Executive's Date of Termination“CIIAA/Release Requirements”):
(1) With respect to any Tranche for which the applicable 60-Day Price Milestone has not been met prior to your Qualifying Termination or would otherwise be deemed met pursuant to Section 1(c)(i) above, such Tranche will vest if such 60-Day Price Milestone is met during the 12-month period following your Qualifying Termination or, if earlier, by the last day of the Executive's plan/target annual incentive award in effect for Performance Period (such measurement period, the fiscal year in which the Date of Termination occurs; provided that, if the Executive is entitled to receive a retention/stay bonus in connection with the Change in Control that is payable with respect to the fiscal year in which the Executive's “Qualifying Termination occurs, Period”). The effective date of any such vesting will be the Executive shall receive the greater later of the applicable stay or retention bonus Certification Date for such Tranche or the pro rata plan/target bonus provided hereineffective date of the Release (such effective date of vesting, but the Executive shall not be entitled “Qualifying Termination Vesting Date”). In order to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments give effect to the Executive for periods subsequent to intent of this Section 1(c)(iii)(1), if this Section 1(c)(iii)(1) is applicable, then such Tranche will remain outstanding and will not terminate until the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of following: (x) if such Tranche does not vest in accordance with this Section 1(c)(iii)(1), the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each last day of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Qualifying Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) Period; or (y) the Executive's plan/target bonus opportunity for the fiscal year if such Tranche does vest in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under accordance with this Section 4(d1(c)(iii)(1), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially expiration of the form attached hereto as Exhibit A term of the Option (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by accordance with Section 3 below).
(2) With respect to any Tranche for which the Companyapplicable 60-Day Price Milestone has been achieved prior to a Qualifying Termination or would otherwise be deemed met pursuant to Section 1(c)(i) above, but in either case, the applicable Earliest Vesting Date has not occurred, then (i) if you satisfy the CIIAA/Release Requirements, such Tranche (x) will vest as of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) effective date of the Internal Revenue Code Release and (y) will not terminate until the expiration of 1986the term of the Option (as determined in accordance with Section 3 below); or (ii) if you do not satisfy the CIIAA/Release Requirements and your Continuous Service terminates upon such Qualifying Termination, as amended (such portion will terminate automatically upon such Qualifying Termination. In order to give effect to the "Code"intent of this Section 1(c)(iii)(2), as soon as if this Section 1(c)(iii)(2) is applicable, then such portion will remain outstanding and will not terminate until the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) latest potential effective date of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)Release.
Appears in 2 contracts
Sources: Modification of Offer Letter Agreement (Fastly, Inc.), Modification of Offer Letter Agreement (Fastly, Inc.)
Qualifying Termination. If the Executive's employment is terminated in a Qualifying Termination If, during the Protection PeriodTerm, then you are no longer serving as the Chief Executive Officer of the Company because either (1) the Company has terminated your employment as Chief Executive Officer without “Cause” (defined below), or (2) you resign as Chief Executive Officer for “Good Reason” (as defined below) (each, a “Qualifying Termination”), the Company shall be entitled pay you (or cause to occur, as applicable) each of the following benefitsfollowing:
(iA) cash severance installment payments in an aggregate amount equal to two hundred percent (200%) of your annual Base Salary as in effect on your “Qualifying Termination Date” (as defined below) (“Cash Severance”) with the first installment of Cash Severance (in an amount equal to three months of Base Salary) being paid on the 90th day after the Termination Date and with the remaining amount of Cash Severance being paid in equal monthly pro-rata installments commencing four months after the Termination Date such that the last installment is paid on the second anniversary of the Termination Date;
(B) a pro rata portion pro-rated cash Performance Bonus, calculated as follows: the product of (based on x) the number of calendar days Performance Bonus that would have elapsed before the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect for been earned during the fiscal year in which the Date Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of Termination occurs; provided thatthe Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the Executive extent to which the Company achieved the MBO Goals (or the performance standards set forth in any successor incentive plan) during such fiscal year, multiplied by (y) a fraction, the numerator of which is entitled the number of days of the Company’s fiscal year prior to receive the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a retention/stay discretionary bonus (as determined by the Board or a compensation committee of the Board) for the portion of the year served through the Qualifying Termination Date. The pro-rated Performance Bonus and any such discretionary bonus described in connection with this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the Change in Control that is payable with respect to 15th day of the third month immediately following the fiscal year in which the Executive's Qualifying Termination occurs, the Executive shall receive the greater of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided hereinhas occurred;
(iiC) in lieu of any further salary payments the Company will continue to pay the cost (to the Executive same extent that the Company was doing so immediately before the Qualifying Termination Date) for periods subsequent all group employee benefit coverage continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) to the same extent provided by the Company’s group plans immediately before the Qualifying Termination Date for eighteen (18) months after the Qualifying Termination Date provided that you are not an employee of the Company after the Qualifying Termination and other severance benefitsDate, or until you become eligible for group insurance benefits from another employer, whichever occurs first, provided that you timely elect COBRA coverage (“COBRA Benefits”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company shall will continue to pay the cost (to the Executive a lump sum severance payment in an amount equal to two (2) times same extent that the sum of (A) the higher of (I) the Executive's annual base salary in effect Company was doing so immediately before the event or circumstance upon Qualifying Termination Date) of all other benefits being provided to you immediately prior to the Qualifying Termination Date (the “Other Benefits”), for eighteen (18) months after the Qualifying Termination Date. If you remain as an employee of the Company after a Qualifying Termination Date, the benefits provided by the Company to you under this Section 3(d)(i)(C) shall begin to be payable to you from the Termination Date (as determined with reference to your employment with the Company which continued after the Notice of Termination is based or (IIQualifying Termination) and shall be paid until the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher earlier of (x) eighteen (18) months after such Termination Date; or (y) you become eligible to receive group health coverage from another employer. You agree (i) at any time either before or during the highest award paid or payable period of time you are receiving benefits under this subsection (C), to inform the Executive pursuant Company promptly in writing if you become eligible to receive group health coverage from another employer; and (ii) that you may not increase the Company's annual incentive plan number of your designated dependents, if any, during this time unless you do so at your own expense. The period of such COBRA Benefits shall be considered part of your COBRA coverage entitlement period, and may, for each tax purposes, be considered income to you;
(D) the portion of the two measuring periods completed immediately before “Options” (defined below), including any additional stock options and other equity compensation incentives granted to you during the Term (collectively, the “Equity Incentives”), that would have vested (assuming that your employment had continued and where vesting is based solely on continued employment) through the twenty-four (24) month period following the Qualifying Termination Date, shall automatically vest and become exercisable on the Qualifying Termination Date. In addition, in the event or circumstance upon which the Notice of Termination is based (determined without reference to that any guaranteed annual bonus under any retention/stay bonus program portion of the Company but taking into account Equity Incentives vest based on continued employment on an annual or “cliff” basis and the amount date of any such annual bonus that or cliff vesting is outside of the twenty-four (24) month forward vesting period mentioned in the preceding sentence (each, a “Cliff Vesting Award”), then the portion of the Cliff Vesting Award that, but for such Qualifying Termination, would have been paid vested from the date of grant of the Cliff Vesting Award through the twenty-four (24) month period following such Qualifying Termination if the Cliff Vesting Award vested on a monthly basis over its vesting period rather than 100% at the end of the vesting period, shall automatically vest and become exercisable as of the Qualifying Termination Date. If and to the Executive extent any portion of the Equity Incentives are performance-based and/or are subject to any vesting conditions other than the passage of time (including without limitation the “Performance Options”, defined below) (collectively, the “Performance Awards”), then such Equity Incentives shall vest and become exercisable based on actual the terms set forth in the applicable Performance Award Agreement, it being understood that the Company shall structure the Performance Awards to include the concept of twenty-four (24) month forward vesting with respect to time-based vesting requirements after the Qualifying Termination Date and a measurement of the performance but for standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any such guaranteeother manner determined by the Company. The vested Equity Incentives as of the Qualifying Termination Date (including any Options that were subject to accelerated vesting pursuant to this clause (D)) or shall be exercisable by you until the earliest to occur of (x) twelve (12) months following the date on which the Equity Incentives vest pursuant to the terms of this clause (D); (y) the Executive's plan/target bonus opportunity for scheduled expiration date of the fiscal year in Options or other equity incentives; or (z) the date on which Executive's Qualifying Termination occurs, without giving effect the Options are canceled (and not substituted or assumed) pursuant to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(iiiE) $10,000 for two years the “Accrued Obligations” (defined below) as of tax and financial planning services;
(iv) full and immediate vesting the Termination Date. For avoidance of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d)doubt, the Executive payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, benefits will otherwise be provided again under either one of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)these subsections.
Appears in 2 contracts
Sources: Employment Agreement (RealD Inc.), Employment Agreement (RealD Inc.)
Qualifying Termination. If the Executive's your employment is terminated in a Qualifying Termination during the Protection PeriodTerm without Cause (as defined below) by the Company or by you for “Good Reason” (as defined below) (each, then a “Qualifying Termination”), the Executive Company shall be entitled pay you (or cause to occur, as applicable) each of the following benefitsfollowing:
(iA) cash severance installment payments in an aggregate amount equal to one hundred percent (100%) of your annual Base Salary as in effect on your Termination Date (“Cash Severance”) being paid in ten monthly pro-rata installments with the first installment of Cash Severance being paid on the 90th day after your “separation from service” (within the meaning of Internal Revenue Code (“Code”) Section 409A) from the Company (“Termination Date”) and the last installment being paid on the first anniversary of the Termination Date;
(B) a pro rata portion pro-rated cash Performance Bonus, calculated as follows: the product of (based on x) the number of calendar days Performance Bonus that would have elapsed before the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect for been earned during the fiscal year in which the Date Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as President of Termination occurs; provided thatConsumer Electronics of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the Executive extent to which the Company achieved the MBO Goals (or the performance standards set forth in any successor incentive plan) during such fiscal year, multiplied by (y) a fraction, the numerator of which is entitled the number of days of the Company’s fiscal year prior to receive the Termination Date and the denominator of which is 365 days. This pro-rated Performance Bonus (a retention/stay bonus in connection with “Pro-Rated Bonus”) shall be paid to you no later than the Change in Control that is payable with respect to 15th day of the third month immediately following the fiscal year in which the Executive's Qualifying Termination occurshas occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Termination Date) for all group employee benefit coverage continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) to the same extent provided by the Company’s group plans immediately before the Termination Date for twelve (12) months after the Termination Date or until you become eligible for group insurance benefits from another employer, whichever occurs first, provided that you timely elect COBRA coverage (“COBRA Benefits”). You agree (i) at any time either before or during the period of time you are receiving benefits under this subsection (C), to inform the Company promptly in writing if you become eligible to receive group health coverage from another employer; and (ii) that you may not increase the number of your designated dependents, if any, during this time unless you do so at your own expense. The period of such COBRA Benefits shall be considered part of your COBRA coverage entitlement period, and may, for tax purposes, be considered income to you; and
(D) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the Executive shall receive the greater of the applicable stay payments and benefits that may be provided under Sections 3(d)(i) above or retention bonus or the pro rata plan/target bonus provided herein, but the Executive 3(d)(ii) below shall not be entitled to both the retention/stay bonus provided more than once and the pro rata plan/target bonus if payments and benefits are provided herein;
(ii) in lieu under either one of any further salary these subsections, then no payments to the Executive for periods subsequent to the Date or benefits will otherwise be provided again under either one of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)these subsections.
Appears in 2 contracts
Sources: Employment Agreement (RealD Inc.), Employment Agreement (RealD Inc.)
Qualifying Termination. If If, during the Term, Executive's ’s employment is terminated in as a result of a Qualifying Termination during the Protection PeriodTermination, then the Executive shall be entitled to receive the following benefitsAccrued Amounts (defined below) and, subject to Executive's timely execution and delivery (and non-revocation) of a general release and waiver of claims in substantially the form set forth in Exhibit A (the “Release”) (the period between the Qualifying Termination and the date that the Release becomes effective, the “Release Execution Period”), Executive shall be entitled to receive the following:
(ia) a pro rata portion lump sum payment equal to two (based on the number of calendar days that have elapsed before the 2) times Executive's Date of TerminationBase Salary and target bonus from the Company’s Annual Incentive Program or such successor plan or program (“AIP”) of the Executive's plan/target annual incentive award in effect for the fiscal year in which the Date of Qualifying Termination occurs, which shall be paid within sixty (60) days following such termination; provided that, if the Executive is entitled to receive a retention/stay bonus Release Execution Period begins in connection with the Change one taxable year and ends in Control that is payable with respect to the fiscal year in which the Executive's Qualifying Termination occursanother taxable year, the Executive shall receive the greater of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive payment shall not be entitled to both made until the retention/stay bonus and first payroll period in January of the pro rata plan/target bonus provided hereinsecond taxable year;
(iib) in lieu if Executive (and his dependents) timely elects to continue health care continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits1985 (“COBRA”), the Company shall pay to will reimburse Executive (and his dependents) monthly for COBRA healthcare continuation premiums until the Executive a lump sum severance payment in an amount equal to two earlier of: (2) times the sum of (Ai) the higher eighteen (18) month anniversary of the Qualifying Termination; (Iii) the Executive's annual base salary in effect immediately before the event or circumstance upon date on which the Notice of Termination is based or Executive becomes eligible for health care coverage from a subsequent employer; and (IIiii) the Executive's annual base salary date that Executive and his spouse qualify for coverage under Medicare. Notwithstanding the foregoing, if Flagstar’s making payments under this Section 2.1(c) would violate the nondiscrimination rules applicable to non-grandfathered plans under the Affordable Care Act or any successor law (the “ACA”), or result in effect immediately before the Change imposition of penalties under the ACA and the related regulations and guidance promulgated thereunder), the Parties agree to reform this Section 2.1(c) in Control and a manner as is necessary to comply with the ACA; and
(Bc) notwithstanding the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program terms of the Company but taking into account 2016 Stock Award and Incentive Plan (the amount “2016 Plan”), the Company 2006 Equity Incentive Plan, as amended, or any applicable award documents, all of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax ’s then-outstanding unvested stock shall become fully vested and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)their full term.
Appears in 2 contracts
Sources: Change in Control Agreement (Flagstar Bancorp Inc), Change in Control Agreement (Flagstar Bancorp Inc)
Qualifying Termination. If If, during the Term, Executive incurs a Qualifying Termination, then subject to and conditioned upon Executive's employment is terminated ’s timely execution and non-revocation of a general release of claims in a Qualifying form prescribed by the Company (the “Release”) which becomes effective and irrevocable no later than sixty (60) days following the Termination during Date and Executive’s continued compliance with the Protection Periodprovisions of Section 6 hereof, then the Company shall pay or provide to Executive shall be entitled the following (in addition to the following benefits:Accrued Obligations):
(i) The Company shall continue to pay to Executive amounts equal to Executive’s then-current Base Salary (which, in the event of a pro rata portion resignation by Executive for Good Reason due to a material reduction in Executive’s Base Salary, shall be the Base Salary in effect immediately prior to such reduction) (based the “Continued Salary Severance”) during the period commencing on the number of calendar days that have elapsed before Termination Date and ending on the Executive's Date of Termination) last day of the Executive's plan/target annual incentive award then-current Term (the “Severance Period”). The Company shall pay the Continued Salary Severance in effect for substantially equal installments in accordance with the fiscal year in Company’s customary payroll practices during the Severance Period; provided, that no such payments ||| shall be made prior to the date on which the Date of Termination occurs; provided thatRelease becomes effective and irrevocable and, if the aggregate period during which Executive is entitled to receive consider and/or revoke the Release spans two (2) calendar years, no Continued Salary Severance payments shall be made prior to the beginning of the second (2nd) such calendar year (and any payments otherwise payable prior thereto shall instead be paid on the first regularly scheduled Company payroll date occurring in the latter such calendar year or, if later, the first regularly scheduled Company payroll date occurring after the Release becomes effective and irrevocable (in either case, the “First Payroll Date”)).
(ii) The Company shall pay to Executive a retention/stay bonus lump sum payment (the “Lump Sum Severance”) equal to (A) two (2) times the Average Compensation less (B) an amount equal to the Continued Salary Severance, payable in connection with a single lump sum cash payment on the Change First Payroll Date. For purposes of this Agreement, “Average Compensation” is the average of the sum of Executive’s actual (x) Base Salary (which, in Control that is payable with respect the event of a resignation by Executive for Good Reason due to a material reduction in Executive’s Base Salary, shall be the Base Salary in effect immediately prior to such reduction) and (y) Annual Bonus, in each case, for the three (3) fiscal years ending immediately prior to the fiscal year in which the Executive's Qualifying Termination occurs. For the avoidance of doubt, in no event shall the Executive shall receive the greater sum of the applicable stay or retention bonus or Lump Sum Severance plus the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to Continued Salary Severance exceed two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)Average Compensation.
Appears in 1 contract
Sources: Employment Agreement (Kennedy-Wilson Holdings, Inc.)
Qualifying Termination. If If, during the Term, (i) Executive resigns for Good Reason or (ii) the Bank terminates Executive's ’s employment is terminated other than for Cause or Disability (each, a “Qualifying Termination”), then, subject to Section 6 hereof:
(1) the Bank shall pay to Executive in a Qualifying Termination during lump sum in cash within thirty (30) days after the Protection Perioddate of termination, then the exact payment date to be determined by the Bank, Executive’s Base Salary through the date of termination to the extent not theretofore paid (the “Accrued Salary”), (ii) any earned and unpaid Annual Bonus for any year prior to the year in which the date of termination occurs, and (iii) any unreimbursed business expenses incurred by Executive on or before the date of termination;
(2) Executive shall be entitled to the following benefits:
(i) receive a pro rata portion (based on the number of calendar days that have elapsed before the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect Annual Bonus for the fiscal year in which the Date date of Termination termination occurs; provided that, equal to (i) the Annual Bonus, if any, that would have been earned by Executive for such year if he had remained employed on such payment date, based on actual performance under applicable financial metrics, multiplied by (ii) a fraction, the numerator of which is the number of days worked by Executive during such final year and the denominator of which is entitled 365 (the “Final Year Pro Rata Bonus”), and such Final Year Pro Rata Bonus shall be paid a single lump sum cash payment at the time such bonus awards are normally paid for such plan year;
(3) the Bank shall pay to receive a retention/stay bonus in connection with the Change in Control that is payable with respect Executive an amount equal to the fiscal sum of (x) Executive’s then-current Base Salary plus (y) the average of the Annual Bonuses earned by Executive for each of the three (3) calendar years immediately preceding the year in which the Executive's date of termination occurs (the “Non-CIC Severance Payment”); provided, however, that if such Qualifying Termination occursoccurs during the period beginning three months prior to, and ending eighteen (18) months after the Executive shall receive closing of, a Change in Control (as defined in Exhibit A attached hereto), then the greater of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company Bank shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (Ai) Executive’s then-current Base Salary plus (ii) the higher average of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Annual Bonuses earned by Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed three calendar years immediately before preceding the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's the date of termination occurs (the “CIC Severance Payment”). Subject to Sections 6 and 12 hereof, the Non-CIC Severance Payment or the CIC Severance Payment, as applicable, shall be paid in a single lump sum in cash within sixty (60) days following the date of termination (except that the excess of the CIC Severance Payment over the non-CIC Severance Payment on the date of the Qualifying Termination occurs, without giving effect shall be paid within sixty (60) days following the date of the closing of the relevant Change in Control if the termination of employment occurs during the period beginning three months prior to any reduction in and ending on the Executive's plan/target annual incentive bonus opportunity on or after a date of the Change in Control), the exact payment date to be determined by the Bank. For the avoidance of doubt, Executive shall not be entitled to receive both the CIC Severance Payment and the Non-CIC Severance Payment;
(iii4) $10,000 if Executive elects to continue participation in any group medical, dental, vision and/or prescription drug plan benefits to which Executive and/or Executive’s eligible dependents would be entitled under Section 4980B of the Code (COBRA), then for two years twelve (12) months following the date of tax and financial planning services;
termination (iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d“COBRA Reimbursement Period”), the Bank shall pay to Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially monthly payments (the form attached hereto as Exhibit A (which the Company shall deliver “COBRA Payments”) of an amount equal to the excess of (a) the COBRA cost of such coverage over (b) the amount that Executive promptly after would have had to pay for such coverage if he had remained employed during the date of his Qualifying Termination). The payments provided COBRA Reimbursement Period and paid the active employee rate for in this Section 4(d) shall be made not later than the date the release described above becomes binding such coverage, less withholding for taxes and irrevocable under applicable lawother similar items; provided, however, that, that (i) if the amounts Executive becomes eligible to receive group health benefits under a program of such payments cannot be finally determined on a subsequent employer or before such dayotherwise, the Company Bank’s obligation to pay any portion of the cost of health coverage as described herein shall cease, except as otherwise provided by law; and (ii) the COBRA Reimbursement Period shall only run for the period during which Executive is eligible to elect health coverage under COBRA and timely elects such coverage;
(5) the Bank shall continue to pay (no less frequently than monthly) Executive’s long-term disability premiums and life insurance premiums for Executive for a period of twelve (12) months (the “Other Premium Payments”); and
(6) to the extent not theretofore paid or provided, the Bank shall timely pay or provide to Executive on such day an estimateany other amounts or benefits required to be paid or provided or which Executive is eligible to receive under any plan, as determined in good faith by the Companyprogram, policy or practice or contract or agreement of the minimum amount of Bank and its affiliated companies (such payments other amounts and benefits shall be hereinafter referred to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement“Other Benefits”).
Appears in 1 contract
Qualifying Termination. If the Executive's employment is terminated in In addition, if Executive experiences a Qualifying Termination during the Protection Periodthen, then the subject to Section 2(e) hereof and Executive’s continued compliance with his obligations under Sections 4 - 7 hereof, Executive shall be entitled to the following benefitsreceive:
(i) an amount in cash equal to the Base Salary, disregarding any reduction in salary giving rise to Good Reason, payable in substantially equal installments in accordance with the Company’s normal payroll procedures (but not less frequently than monthly) over the 18-month period following the Date of Termination (the “Salary Severance”); provided, that such Salary Severance payments shall commence on the first payroll date following the effective date of the Release, and amounts otherwise payable prior to such first payroll date shall be paid on the first payroll date without interest thereon;
(ii) a pro pro-rata portion (based on the number of calendar days that have elapsed before the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect ’s Annual Bonus for the fiscal calendar year in which the Date of Termination occurs; provided that, if had Executive remained employed through the payment date and based on the achievement of any applicable performance goals or objectives, pro-rated based on the number of days during such calendar year that Executive is entitled to receive was employed by the Company, payable in a retention/stay bonus in connection with single cash lump sum on the Change in Control that is payable with respect date on which annual bonuses are paid to the fiscal Company’s senior executives generally for such calendar year, but no later than March 15 of the calendar year following the calendar year in which the Executive's Qualifying Date of Termination occurs, the Executive shall receive the greater of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(iiiii) in lieu of any further salary payments subject to Executive’s valid and timely election to continue healthcare coverage under Code Section 4980B and the Executive for periods subsequent to the Date of Termination and other severance benefitsregulations thereunder, the Company shall pay to the Executive after such termination of employment, on a lump sum severance payment in monthly basis, an amount equal to two (2) times the sum monthly amount of the COBRA continuation coverage premium for such month, at the same level and cost to Executive as immediately preceding the Date of Termination, under the Company group health plan in which Executive participated immediately preceding the Date of Termination, less the amount of Executive’s portion of such monthly premium as in effect immediately preceding the Date of Termination, until the earlier of (A) 18 months after the higher Date of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control Termination; and (B) the higher of date on which Executive and his family have obtained other substantially similar healthcare coverage; provided, however, that if (x) the highest award paid any plan pursuant to which such benefits are provided is not, or payable ceases prior to the Executive pursuant to the Company's annual incentive plan for each expiration of the two measuring periods completed immediately before period of continuation coverage to be, exempt from the event or circumstance upon which the Notice application of Termination is based (determined without reference to any guaranteed annual bonus Code Section 409A under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) Treasury Regulation Section 1.409A-1(a)(5), or (y) the Executive's plan/target bonus opportunity for Company is otherwise unable to continue to cover Executive under its group health plans without incurring penalties (including without limitation, pursuant to Section 2716 of the fiscal year Public Health Service Act or the Patient Protection and Affordable Care Act), then, in which Executive's Qualifying Termination occurseither case, without giving effect each remaining premium payment under this this sentence shall thereafter be paid to any reduction Executive in substantially equal monthly installments over the Executive's plan/target annual incentive bonus opportunity on period specified in subsections (A) and (B) (or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning servicesthe remaining portion thereof);
(iv) full and immediate vesting except as otherwise explicitly set forth in an individual award agreement evidencing a Time-Based Equity Award, each outstanding Time-Based Equity Award held by Executive as of all optionsthe Date of Termination, awards of other than any outstanding restricted stock units granted pursuant to that certain Restricted Stock Unit Award Agreement, by and any other equity or equitybetween Executive and HoldCo dated December 27, 2017 (the “▇▇▇▇ ▇▇▇ Agreement” and such restricted stock units, the “2017 RSUs”), shall vest and, as applicable, become exercisable with respect to the number of shares underlying the Time-based awards Based Equity Award that would otherwise have vested had Executive remained in continuous employment with the Company through the 18-month anniversary of the Date of Termination, and assuming that the vesting schedule applicable to such Time-Based Equity Award is in substantially equal monthly installments through the vesting period. Each outstanding Equity Award held by Executive as of the Executive. All Date of Termination that is not a Time-Based Equity Award shall be treated in accordance with the terms and conditions of the applicable award agreement and the Plan; and
(v) any outstanding stock options covering the Class A common stock of HoldCo held by Executive on the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d)Date of Termination, the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after extent vested as of or in connection with the date of his Qualifying Termination). The payments provided for in this Section 4(d) , shall be made not later than remain exercisable until the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, three-year anniversary of the minimum amount Date of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986Termination, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than beyond the thirtieth (30th) day after the Date outside expiration date of Termination. If the estimated payments exceed the amount subsequently determined to be due, each such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)stock option.
Appears in 1 contract
Qualifying Termination. If (1) the Company terminates the Executive's ’s employment is terminated in a Qualifying Termination during the Protection Periodfor any reason other than for Cause, then Disability or death or (2) the Executive shall be entitled to terminates employment for Good Reason (each, a “Qualifying Termination”), in either case more than six months prior to, or more than 24 months following, a Change in Control (as defined in the following benefits:2018 Equity Incentive Plan of Columbia Banking System, Inc. and including, for the avoidance of doubt, the Merger):
(i) the Company shall pay to the Executive in a pro rata portion lump sum in cash within 30 days after the Date of Termination the aggregate of (based on the number of calendar days that have elapsed before 1) the Executive's ’s accrued Annual Base Salary and any accrued vacation pay through the Date of Termination, (2) the Executive’s business expenses that have not been reimbursed by the Company as of the Date of Termination that were incurred by the Executive prior to the Date of Termination in accordance with the applicable Company policy, and (3) the Executive's plan/target annual incentive award in effect ’s Annual Bonus earned for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs; provided that, occurs if the Executive is entitled to receive a retention/stay such bonus in connection with the Change in Control that is payable with respect to the fiscal year in which the Executive's Qualifying Termination occurs, the Executive shall receive the greater has been determined but not paid as of the applicable stay or retention bonus or Date of Termination (the pro rata plan/target bonus provided herein, but sum of the Executive amounts described in clauses (1) through (3) shall not be entitled hereinafter referred to both as the retention/stay bonus and the pro rata plan/target bonus provided herein“Accrued Obligations”);
(ii) in lieu of any further salary payments subject to the Executive for periods subsequent to the Date of Termination and other severance benefitsSection 4(e), the Company shall pay to the Executive a lump sum cash severance payment benefit in an amount equal to two (2) times the sum Executive’s Annual Base Salary (the “Severance Benefits”). The Company shall pay the Severance Benefits in substantially equal installments in accordance with the Company’s normal payroll policies over the two-year period following the Date of (A) Termination; provided that the higher of (I) first payment shall be made on the Executive's annual base salary in effect immediately before 60th day following the event or circumstance upon which the Notice Date of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or shall include all installments otherwise payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any within such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control60-day period;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible subject to receive benefits under this Section 4(d4(e), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive in a lump sum in cash a pro rata portion of any Annual Bonus earned for the year in which the Date of Termination occurs (with proration determined based on such day an estimate, as determined the number of months in good faith by the Company, of the minimum amount of such payments to fiscal year in which the Executive is clearly entitled and employed with the Company). The Company shall pay the remainder prorated Annual Bonus at the same time as the Company pays annual bonuses to active employees (and no later than March 15 of the year following the fiscal year to which the Annual Bonus relates);
(iv) subject to Section 4(e), a pro rata portion of any long-term incentive awards granted to the Executive shall vest as follows: (1) a pro rata portion of any long-term incentive award that is not subject to performance-based vesting conditions shall vest as of the Date of Termination (with proration determined based on the number of months in the applicable vesting period in which the Executive is employed with the Company) and (2) a pro rata portion of any long-term incentive award that is subject to performance-based vesting conditions shall vest as of the regularly scheduled vesting date based on actual performance (with proration determined based on the number of months in the applicable vesting period in which the Executive is employed with the Company), and, in each case, any payment or delivery shall be made in respect of such payments (together awards within 60 days following vesting subject to compliance with interest at the rate provided in Section 1274(b)(2)(B) 409A of the Internal Revenue Code of 1986Code. For illustrative purposes only, as amended if the Executive holds 96 restricted shares that are scheduled to vest over a four-year period (the "Code"“Illustrative Vesting Period”) and that are not subject to performance vesting, and the Executive’s employment terminates 15.5 months after the beginning of the Illustrative Vesting Period, then 16/48 of the restricted shares (32 restricted shares) will vest upon the Executive’s termination (regardless of the vesting schedule set forth in the award and without duplication of any previous vesting) subject to Section 4(e) and the remaining 64 restricted shares will be forfeited;
(v) subject to Section 4(e), as soon as for the amount thereof can be determined but in no event later than the thirtieth (30th) day after 24-month period immediately following the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide continue the health and welfare benefits 4844-0817-3566 v.6 provided to the Executive with a written statement setting forth and his dependents at the manner in which levels provided to active employees; provided that, if the Company determines that such payments were calculated continuation is not feasible without the payment of taxes or penalties or is not permissible under applicable law, the Company and the basis for Executive shall cooperate in good faith to modify this section in such calculations including, without limitation, any opinions or other advice a manner that does not materially increase the cost to the Company has received from outside counsel(collectively, auditors the “Welfare Benefits”); and
(vi) to the extent not theretofore paid or consultants provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or that the Executive is eligible to receive under any plan, program, policy, practice, contract or agreement of the Company and its affiliated companies through the Date of Termination (such other amounts and any such written opinions or advice benefits shall be attached hereinafter referred to as the statement“Other Benefits”). As used in this Agreement, the term “affiliated companies” shall include any company controlled by, controlling or under common control with the Company.
Appears in 1 contract
Sources: Employment Agreement (Columbia Banking System, Inc.)
Qualifying Termination. If If, during the Term, (i) Executive resigns for Good Reason or (ii) the Bank terminates Executive's ’s employment is terminated other than for Cause or Disability (each, a “Qualifying Termination”), then, subject to Section 6 hereof:
(1) the Bank shall pay to Executive in a Qualifying Termination during lump sum in cash within thirty (30) days after the Protection Perioddate of termination, then the exact payment date to be determined by the Bank, Executive’s Base Salary through the date of termination to the extent not theretofore paid (the “Accrued Salary”), (ii) any earned and unpaid Annual Bonus for any year prior to the year in which the date of termination occurs, and (iii) any unreimbursed business expenses incurred by Executive on or before the date of termination;
(2) Executive shall be entitled to the following benefits:
(i) receive a pro rata portion (based on the number of calendar days that have elapsed before the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect Annual Bonus for the fiscal year in which the Date date of Termination termination occurs; provided that, equal to (i) the Annual Bonus, if any, that would have been earned by Executive for such year if he had remained employed on such payment date, based on actual performance under applicable financial metrics, multiplied by (ii) a fraction, the numerator of which is the number of days worked by Executive during such final year and the denominator of which is entitled 365 (the “Final Year Pro Rata Bonus”), and such Final Year Pro Rata Bonus shall be paid a single lump sum cash payment at the time such bonus awards are normally paid for such plan year;
(3) the Bank shall pay to receive a retention/stay bonus in connection with the Change in Control that is payable with respect Executive an amount equal to the fiscal sum of (x) Executive’s then-current Base Salary plus (y) the average of the Annual Bonuses earned by Executive for each of the three (3) calendar years immediately preceding the year in which the Executive's date of termination occurs (the “Non-CIC Severance Payment”); provided, however, that if such Qualifying Termination occursoccurs during the period beginning three months prior to, and ending eighteen (18) months after the Executive shall receive closing of, a Change in Control (as defined in Exhibit A attached hereto), then the greater of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company Bank shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (Ai) Executive’s then-current Base Salary plus (ii) the higher average of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Annual Bonuses earned by Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed three calendar years immediately before preceding the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's the date of termination occurs (the “CIC Severance Payment”). Subject to Sections 6 and 11 hereof, the Non-CIC Severance Payment or the CIC Severance Payment, as applicable, shall be paid in a single lump sum in cash within sixty (60) days following the date of termination (except that the excess of the CIC Severance Payment over the non-CIC Severance Payment on the date of the Qualifying Termination occurs, without giving effect shall be paid within sixty (60) days following the date of the closing of the relevant Change in Control if the termination of employment occurs during the period beginning three months prior to any reduction in and ending on the Executive's plan/target annual incentive bonus opportunity on or after a date of the Change in Control), the exact payment date to be determined by the Bank. For the avoidance of doubt, Executive shall not be entitled to receive both the CIC Severance Payment and the Non-CIC Severance Payment;
(iii4) $10,000 if Executive elects to continue participation in any group medical, dental, vision and/or prescription drug plan benefits to which Executive and/or Executive’s eligible dependents would be entitled under Section 4980B of the Code (COBRA), then for two years twenty-four (24)months following the date of tax and financial planning services;
termination (iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d“COBRA Reimbursement Period”), the Bank shall pay to Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially monthly payments (the form attached hereto as Exhibit A (which the Company shall deliver “COBRA Payments”) of an amount equal to the excess of (a) the COBRA cost of such coverage over (b) the amount that Executive promptly after would have had to pay for such coverage if he had remained employed during the date of his Qualifying Termination). The payments provided COBRA Reimbursement Period and paid the active employee rate for in this Section 4(d) shall be made not later than the date the release described above becomes binding such coverage, less withholding for taxes and irrevocable under applicable lawother similar items; provided, however, that, that (i) if the amounts Executive becomes eligible to receive group health benefits under a program of such payments cannot be finally determined on a subsequent employer or before such dayotherwise, the Company Bank’s obligation to pay any portion of the cost of health coverage as described herein shall cease, except as otherwise provided by law; and (ii) the COBRA Reimbursement Period shall only run for the period during which Executive is eligible to elect health coverage under COBRA and timely elects such coverage;
(5) the Bank shall continue to pay (no less frequently than monthly) Executive’s long-term disability premiums and life insurance premiums for Executive for a period of twelve (12) months (the “Other Premium Payments”); and
(6) to the extent not theretofore paid or provided, the Bank shall timely pay or provide to Executive on such day an estimateany other amounts or benefits required to be paid or provided or which Executive is eligible to receive under any plan, as determined in good faith by the Companyprogram, policy or practice or contract or agreement of the minimum amount of Bank and its affiliated companies (such payments other amounts and benefits shall be hereinafter referred to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement“Other Benefits”).
Appears in 1 contract
Qualifying Termination. If Subject to Section 3(b) below and your continued compliance with the Executive's Confidentiality Agreement (as defined below), if your employment is terminated in due to a Qualifying Termination during Termination, then, the Protection Period, then the Executive shall be entitled to the following benefits:
Company will provide you with: (i) a pro rata portion payment of any Base Salary that is earned, due and payable to you up to and including the last day of employment; (based ii) payment of any Performance Bonus that was earned, but not yet paid, on the number date of calendar days that have elapsed before termination; (iii) an amount equal to 12 months of your Base Salary then in effect (the Executive's Date “Severance”), payable in substantially equal installments in accordance with the Company’s normal payroll practices over the 12-month period following the termination of Termination) your employment (the “Severance Period”), with such installments commencing on the first regular payroll date following the effective date of the Executive's plan/target annual incentive award in effect Release (as defined below), and amounts otherwise payable prior to such first payroll date shall be paid on such date without interest thereon; (iv) subject to insurer approval and any required exclusions, continued participation under the Company benefits plans for the fiscal year in which minimum period required pursuant to applicable employment or labour standards legislation; (v) the minimum amount of vacation pay as may then be required to be paid to your pursuant to applicable employment or labour standards legislation; (vi) all outstanding Time Vesting Awards (as defined below) shall, to the extent then-unvested, vest (and, as applicable, become exercisable) on an accelerated basis as of the Termination Date of Termination occurs; provided that, if the Executive is entitled to receive a retention/stay bonus in connection with the Change in Control that is payable with respect to the fiscal year in which number of shares underlying the Executive's Qualifying Termination occurs, the Executive shall receive the greater of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to vested had you remained in continuous employment during the Executive based on actual performance but for any such guarantee) or (y) 24-month period following the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable lawDate; provided, however, that, if the amounts of such payments cannot be finally determined with respect to any Time Vesting Award that vests on or before such daya quarterly basis, the Company number of Parent shares that become vested in accordance with the foregoing shall pay be calculated assuming that the vesting schedule for such award is monthly (rather than quarterly) over the vesting period from the applicable vesting commencement date. Notwithstanding the foregoing, in the event that such Qualifying Termination occurs during the 24-month period following the date on which a Change in Control is consummated, all of your then-outstanding Time Vesting Awards shall, to the Executive on such day an estimateextent then-unvested, become fully vested (and, as determined in good faith by the Companyapplicable, exercisable) on an accelerated basis as of the Termination Date; and (vii) to the extent that the compensation and benefits set out above do not fully satisfy your entitlements under the applicable employment or labour standards legislation, payment and provision of any additional compensation and benefits that are then required to be paid or provided to the you to satisfy your minimum amount of such payments to which entitlements under the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986applicable employment or labour standards legislation. For absolute clarity, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later case will you receive less than the thirtieth (30th) day after the Date of Termination. If the estimated minimum payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments and benefits that are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement).then
Appears in 1 contract
Qualifying Termination. If Upon a Qualifying Termination, the Executive will receive the Accrued Payments and, provided the Executive remains in compliance with the terms of this Agreement and has met the requirements of the Release Obligation, the following severance benefits (the “Severance Benefits”):
(a) The Company shall provide the Executive's employment is terminated in a Qualifying Termination during the Protection Period, then the Executive shall be entitled to as severance, the following benefits:
(i) twelve (12) months of the Executive’s then-current Base Salary (disregarding any reduction that may have given rise to Good Reason) (the “Cash Severance”). The Severance will be paid in a pro rata portion single lump-sum cash payment on Employer’s or Employer’s successor’s first regular payroll date following the date on which the Release Obligation has been fulfilled. The Severance will be subject to all applicable withholding and deductions; and
(ii) a lump-sum cash amount, on Employer’s or Employer’s successor’s first regular payroll date following the date on which the Release Obligation has been fulfilled, equal to the product of twelve (12) months, multiplied by the grossed-up monthly premium pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), that Executive would be required to pay to continue the group health coverage in effect on the Separation Date for Executive and any of Executive’s eligible dependents (which amount will be based on the number premium for the first month of calendar days that have elapsed before COBRA coverage) (the Executive's Date of Termination“COBRA Severance”); and
(b) If, following the end of the Executive's plan/target annual incentive award in effect for the fiscal year in which the Date of Termination occurs; provided that, if the Executive is entitled to receive a retention/stay bonus in connection with the Change in Control that is payable with respect to the fiscal year Bonus Year in which the Executive's ’s Qualifying Termination occurs, the Board determines in good faith that the applicable Bonus objectives and milestones for that Bonus Year have been achieved, Executive shall will receive a Bonus, as so determined by the greater Board and pro-rated based on the date of the applicable stay or retention bonus or Executive’s Qualifying Termination (the pro rata plan/target bonus provided herein, but the Executive shall not “Bonus Severance”). The Bonus Severance will be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided payment timing provisions set forth in Section 1274(b)(2)(B) of the Internal Revenue Code of 19862.2, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined subject to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated all applicable deductions and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)withholdings.”
Appears in 1 contract
Qualifying Termination. If (1) the Company terminates the Executive's ’s employment is terminated in a Qualifying Termination during the Protection Periodfor any reason other than for Cause, then Disability or death or (2) the Executive shall be entitled to terminates employment for Good Reason (each, a “Qualifying Termination”), in either case more than six months prior to, or more than 24 months following, a Change in Control (as defined in the following benefits:2018 Equity Incentive Plan of Columbia Banking System, Inc. and including, for the avoidance of doubt, the Merger):
(i) the Company shall pay to the Executive in a pro rata portion lump sum in cash within 30 days after the Date of Termination the aggregate of (based on the number of calendar days that have elapsed before 1) the Executive's ’s accrued Annual Base Salary and any accrued vacation pay through the Date of Termination, (2) the Executive’s business expenses that have not been reimbursed by the Company as of the Date of Termination that were incurred by the Executive prior to the Date of Termination in accordance with the applicable Company policy, and (3) the Executive's plan/target annual incentive award in effect ’s Annual Bonus earned for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs; provided that, occurs if the Executive is entitled to receive a retention/stay such bonus in connection with the Change in Control that is payable with respect to the fiscal year in which the Executive's Qualifying Termination occurs, the Executive shall receive the greater has been determined but not paid as of the applicable stay or retention bonus or Date of Termination (the pro rata plan/target bonus provided herein, but sum of the Executive amounts described in clauses (1) through (3) shall not be entitled hereinafter referred to both as the retention/stay bonus and the pro rata plan/target bonus provided herein“Accrued Obligations”);
(ii) in lieu of any further salary payments subject to the Executive for periods subsequent to the Date of Termination and other severance benefitsSection 4(e), the Company shall pay to the Executive a lump sum cash severance payment benefit in an amount equal to two (2) times the sum Executive’s Annual Base Salary (the “Severance Benefits”). The Company shall pay the Severance Benefits in substantially equal installments in accordance with the Company’s normal payroll policies over the two-year period following the Date of (A) Termination; provided that the higher of (I) first payment shall be made on the Executive's annual base salary in effect immediately before 60th day following the event or circumstance upon which the Notice Date of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or shall include all installments otherwise payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any within such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control60-day period;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible subject to receive benefits under this Section 4(d4(e), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive in a lump sum in cash a pro rata portion of any Annual Bonus earned for the year in which the Date of Termination occurs (with proration determined based on such day an estimate, as determined the number of months in good faith by the Company, of the minimum amount of such payments to fiscal year in which the Executive is clearly entitled and employed with the Company). The Company shall pay the remainder prorated Annual Bonus at the same time as the Company pays annual bonuses to active employees (and no later than March 15 of the year following the fiscal year to which the Annual Bonus relates);
(iv) subject to Section 4(e), a pro rata portion of any long-term incentive awards granted to the Executive shall vest as follows: (1) a pro rata portion of any long-term incentive award that is not subject to performance-based vesting conditions shall vest as of the Date of Termination (with proration determined based on the number of months in the applicable vesting period in which the Executive is employed with the Company) and (2) a pro rata portion of any long-term incentive award that is subject to performance-based vesting conditions shall vest as of the regularly scheduled vesting date based on actual performance (with proration determined based on the number of months in the applicable vesting period in which the Executive is employed with the Company), and, in each case, any payment or delivery shall be made in respect of such payments (together awards within 60 days following vesting subject to compliance with interest at the rate provided in Section 1274(b)(2)(B) 409A of the Internal Revenue Code of 1986Code. For illustrative purposes only, as amended if the Executive holds 96 restricted shares that are scheduled to vest over a four-year period (the "Code"“Illustrative Vesting Period”) and that are not subject to performance vesting, and the Executive’s employment terminates 15.5 months after the beginning of the Illustrative Vesting Period, then 16/48 of the restricted shares (32 restricted shares) will vest upon the Executive’s termination (regardless of the vesting schedule set forth in the award and without duplication of any previous vesting) subject to Section 4(e) and the remaining 64 restricted shares will be forfeited;
(v) subject to Section 4(e), as soon as for the amount thereof can be determined but in no event later than the thirtieth (30th) day after 24-month period immediately following the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide continue the health and welfare benefits provided to the Executive with a written statement setting forth and his dependents at the manner in which levels provided to active employees; provided that, if the Company determines that such payments were calculated continuation is not feasible without the payment of taxes or penalties or is not permissible under applicable law, the Company and the basis for Executive shall cooperate in good faith to modify this section in such calculations including, without limitation, any opinions or other advice a manner that does not materially increase the cost to the Company has received from outside counsel(collectively, auditors the “Welfare Benefits”); and
(vi) to the extent not theretofore paid or consultants provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or that the Executive is eligible to receive under any plan, program, policy, practice, contract or agreement of the Company and its affiliated companies through the Date of Termination (such other amounts and any such written opinions or advice benefits shall be attached hereinafter referred to as the statement“Other Benefits”). As used in this Agreement, the term “affiliated companies” shall include any company controlled by, controlling or under common control with the Company.
Appears in 1 contract
Sources: Employment Agreement (Columbia Banking System, Inc.)
Qualifying Termination. If an Eligible Executive’s employment with the Executive's employment is terminated in Company and, as applicable, each of its Affiliates, ends due to a Qualifying Termination during the Protection PeriodTermination, then the such Eligible Executive shall be entitled to receive the following benefitsAccrued Amounts, and so long as such Eligible Executive satisfies the Release Requirement, abides by the terms of Section 7 below and continues to abide by the terms of all other written agreements between such Eligible Executive and any member of the Company Group, including the restrictive covenants set forth in the award agreements entered into between the Company and such Eligible Executive pursuant to the 2017 Incentive Plan and the 2020 Incentive Plan, as applicable, such Eligible Executive shall also be entitled to receive:
(i) A cash payment equal to the Severance Amount payable in a pro rata portion (based lump-sum on or prior to the number of calendar Company’s first regularly scheduled pay date that occurs on or after the 14th day following the Release Consideration Period, but in no event later than 75 days that have elapsed before following the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect for the fiscal year in which the Date of Termination occurs; provided that, if the Executive is entitled to receive a retention/stay bonus in connection with the Change in Control that is payable with respect to the fiscal year in which the Executive's Qualifying Termination occurs, the Executive shall receive the greater of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to If the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have Prior Year Annual Bonus has not yet been paid to the Executive based on actual performance but Eligible Executive, the Prior Year Annual Bonus, payable in a lump sum at the time annual bonuses for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the prior fiscal year in which Executive's Qualifying Termination occurs, without giving effect of are paid to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years executives of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth Applicable March 15; and
(30thiii) day after If such Eligible Executive timely and properly elects to continue coverage for such Eligible Executive and such Eligible Executive’s spouse and eligible dependents, if any, under the Date of Termination. If the estimated payments exceed the amount subsequently determined Company’s group health plans pursuant to be dueCOBRA, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, then the Company shall provide promptly reimburse the Eligible Executive for the amount by which the premiums paid to effectuate such coverage during the COBRA Continuation Period exceeds the amount of the employee contribution that active executive employees of the Company pay for the same or similar coverage under such group health plans during the same period, less applicable taxes and withholdings (the “COBRA Benefit”). Each payment of the COBRA Benefit shall be paid to the Eligible Executive on the Company’s first regularly scheduled pay date in the calendar month immediately following the calendar month in which the Eligible Executive submits to the Company documentation of the applicable premium payment having been paid by the Eligible Executive, which documentation shall be submitted by the Eligible Executive to the Company within 30 days following the date on which the applicable premium payment is paid. Notwithstanding anything in the preceding provisions of this Section 5(a)(iii) to the contrary, (A) the election of COBRA continuation coverage and the payment of any premiums due with a written statement setting forth respect to such COBRA continuation coverage will remain such Eligible Executive’s sole responsibility, and the Company will assume no obligation for payment of any such premiums relating to such COBRA continuation coverage and (B) if the provision of the benefit described in this Section 5(a)(iii) cannot be provided in the manner described above without penalty, tax, or other adverse impact on the Company, then the Company and such Eligible Executive shall negotiate in good faith to determine an alternative manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any may provide a substantially equivalent benefit to such written opinions or advice shall be attached to Eligible Executive without such adverse impact on the statement)Company.
Appears in 1 contract
Qualifying Termination. (a) The Company may terminate the Executive’s employment hereunder without Cause at any time upon written notice to the Executive. In addition, Executive’s employment hereunder will terminate upon the expiration of the Term. If the Transition Date occurs as a result of (1) the expiration of the Term, or (2) the termination of the Executive's ’s employment is terminated in a Qualifying Termination by the Company without Cause during the Protection PeriodTerm (either such termination of employment, then a “Qualifying Termination”), the Executive shall be entitled to receive the following benefits:Accrued Rights and any Accrued Retention Bonus.
(ib) In addition to the Accrued Rights and any Accrued Retention Bonus, in the event of the occurrence of the Transition Date as a pro rata portion result of a Qualifying Termination, subject to Section 6.5, the Executive will be entitled to receive as severance Executive’s Base Salary then in effect at the time of such termination for a period of eighteen (based on 18) months following the number Transition Date (the “Severance Period”). Such payments will be made in equal installments over the Severance Period in accordance with the Payroll Policies, Section 9 hereof and the terms of calendar days the Release (as defined below). The parties agree and acknowledge that have elapsed before the Executive's Date of Terminationthis Section 6.3(b) of the Executive's plan/target annual incentive award in effect for Agreement provides Executive contractual rights to the fiscal year in which the Date same amount of Termination occurs; provided that, if the severance payments that Executive is entitled to receive pursuant to Section 6.3 of the Employment Agreement.
(c) Subject to Section 6.5, in the event of the occurrence of the Transition Date as a retention/stay bonus in connection with the Change in Control that is payable with respect to the fiscal year in which the Executive's result of a Qualifying Termination occursTermination, the Executive shall receive the greater of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive shall not will also be entitled during the Severance Period to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments payment to the Executive of the Company’s portion of post-employment Company-sponsored health insurance premiums under COBRA (at the same levels and costs in effect on the Transition Date (excluding, for periods subsequent purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars)) and subject to Executive’s valid election to continue healthcare coverage under COBRA, to the Date extent permissible under the Company’s health insurance plans, including, if permitted and still maintained by the Company and/or Benicomp (as may be amended, modified or terminated by the Company from time to time), subject to applicable taxes and withholdings; provided, that if the Executive becomes covered by the health insurance policy of Termination any subsequent employer during the Severance Period, the continuation of such health insurance coverage and other severance benefits, premium payment by the Company shall pay cease.
(d) Subject to Section 6.5, in the Executive event of the occurrence of the Transition Date as a lump sum severance payment in an amount equal to two (2) times the sum result of (A) the higher a Qualifying Termination, such a portion of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is ’s outstanding and unvested time-based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock units and any other equity or equity-based stock option awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay granted to the Executive on October 3, 2022 (the “Subject Awards”) and scheduled to vest on October 3, 2023 shall vest as if the Executive had remain continuously employed with the Company through such day an estimatedate (the “Equity Acceleration Benefit”). Subject to Section 6.5, the Equity Acceleration Benefit shall occur as determined in good faith by the Company, of the minimum amount Release Effective Date (as defined below). Subject to Section 6.5, Executive and/or his affiliated trusts shall be permitted to retain, subject to the terms and conditions of grant documents and the Eighth Amended and Restated Agreement of Limited Partnership of Karman Topco L.P. as amended, supplemented or otherwise modified from time to time, (1) all vested Common Series C Units previously granted to Executive, and (2) all Common Series C-2 Units previously granted to Executive. Company further agrees and acknowledges that it shall not purchase such payments to which units Common Series C Units or Common Series C-2 Units by means of a promissory note.
(e) Following a Qualifying Termination the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided have no further rights to any compensation or any other benefits except as set forth in this Section 6.3 or as otherwise set forth in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)5.7.
Appears in 1 contract
Qualifying Termination. If Upon a Qualifying Termination, the Executive will receive the Accrued Payments and, provided the Executive remains in compliance with the terms of this Agreement and has met the requirements of the Release Obligation, the following severance benefits (the “Severance Benefits”):
(a) The Company shall provide the Executive's employment is terminated in a Qualifying Termination during the Protection Period, then the Executive shall be entitled to as severance, the following benefits:
(i) a pro rata portion twelve (based on the number of calendar days that have elapsed before the Executive's Date of Termination12) months of the Executive's plan/target annual incentive award ’s then-current Base Salary (disregarding any reduction that may have given rise to Good Reason) (the “Cash Severance”). The Severance will be paid in effect equal bi-weekly installments as a continuation on the Employer’s regular payroll for a period of twelve (12) months (the fiscal year in which “Severance Period”), beginning no later than the Date of Termination occurs; first regularly-scheduled payroll date following the sixtieth (60th) day after the Executive’s Separation from Service, provided that, if the Executive has fulfilled the Release Obligation. The Severance will be subject to all applicable withholding and deductions; and
(ii) If Executive is entitled eligible for and timely elects continued group health plan coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 or any state law of similar effect (“COBRA”) following Executive’s Qualifying Termination, the Company will pay Executive’s COBRA group health insurance premiums (the “COBRA Severance”) for Executive and Executive’s eligible dependents directly to receive a retention/stay bonus the insurer until the earliest of (A) the end of the period immediately following Executive’s Qualifying Termination that is equal to the Severance Period (the “COBRA Payment Period”), (B) the expiration of Executive’s eligibility for continuation coverage under COBRA, or (C) the date when Executive becomes eligible for substantially equivalent health insurance coverage in connection with new employment or self-employment. For purposes of this Section, references to COBRA premiums shall not include any amounts payable by Executive under a Section 125 health care reimbursement plan under the Change Code. Notwithstanding the foregoing, if at any time the Company determines, in Control its sole discretion, that is payable with respect it cannot pay the COBRA premiums without potentially incurring financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), the Company will instead pay Executive on the last day of each remaining month of the COBRA Payment Period, a fully taxable cash payment equal to the fiscal year COBRA premiums for that month, subject to applicable tax withholdings (such amount, the “Special Severance Payment”), which payments shall continue until the earlier of expiration of the COBRA Payment Period or the date when Executive becomes eligible for substantially equivalent health insurance coverage in connection with new employment or self-employment. On the first payroll date following the effectiveness of the Separation Agreement, the Company will make the first payment to the insurer under this clause (and, in the case of the Special Severance Payment, such payment will be to Executive, in a lump sum) equal to the aggregate amount of payments that the Company would have paid through such date had such payments instead commenced on the Separation Date, with the balance of the payments paid thereafter on the schedule described above. If Executive becomes eligible for coverage under another employer’s group health plan, Executive must immediately notify the Company of such event, and all payments and obligations under this subsection shall cease; and
(b) If, following the end of the Bonus Year in which the Executive's ’s Qualifying Termination occurs, the Board determines in good faith that the applicable Bonus objectives and milestones for that Bonus Year have been achieved, Executive shall will receive a Bonus, as so determined by the greater Board and pro-rated based on the date of the applicable stay or retention bonus or Executive’s Qualifying Termination (the pro rata plan/target bonus provided herein, but the Executive shall not “Bonus Severance”). The Bonus Severance will be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided payment timing provisions set forth in Section 1274(b)(2)(B) of the Internal Revenue Code of 19862.2, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined subject to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated all applicable deductions and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)withholdings.
Appears in 1 contract
Qualifying Termination. If the Executive's employment is terminated in Should you incur a Qualifying Termination during (as defined below) you will be eligible for the Protection Periodfollowing payments and benefits, then provided that you remain in compliance with your obligations under the Executive shall be entitled terms of this agreement, including, but not limited to the following benefits:
provisions regarding non-competition, non-solicitation, and non-disparagement, and the Release (i) a pro rata portion (based on the number of calendar days that have elapsed before the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect for the fiscal year in which the Date of Termination occurs; provided that, if the Executive is entitled as defined below). Should you fail to receive a retention/stay bonus in connection comply with the Change in Control that is payable with respect to the fiscal year in which the Executive's Qualifying Termination occurs, the Executive shall receive the greater of the applicable stay or retention bonus your obligations under this Agreement or the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefitsRelease, the Company shall pay may, in addition to the Executive a lump sum severance any other available remedies, cease making any payment in an amount or benefit provided for herein. SEPARATION PAYMENT: A separation payment, before applicable deductions, equal to two one (21) times the sum of (A) the higher of (I) the Executive's annual your base salary as in effect immediately before as of your termination of employment, plus in the event or circumstance upon which the Notice of a Qualifying Termination is based under subparagraphs (3) or (II4) as set forth in the Executive's definition below of Qualifying Termination, an amount equal to the average annual base salary cash bonuses received by you during the three year period ending prior to the year in effect immediately before which the Change in Control occurs (the "Separation Payment"). If you have executed and (B) returned the higher Release described below within thirty days after the date of (x) your Qualifying Termination, the highest award Separation Payment shall be paid or payable as follows: 50% of the Separation Payment shall be paid to you within ten business days of your execution of the Executive pursuant Release, with the remaining 50% to be paid in equal installments, without interest, commencing on the Company's annual incentive plan for each second regularly scheduled payroll following your execution of the two measuring periods completed immediately before Release and ending with the Company's regularly scheduled payroll one year later (the "Separation Pay Period"), provided that if the ten business day period would end in a later calendar year than the date of the Qualifying Termination, no part of the Separation Payment shall be paid until the first business day of the subsequent calendar year. In the event or circumstance upon which of a change in payroll practice during the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of Separation Pay Period, the Company but taking into account may adjust the amounts of such installments as necessary to ensure that the total amount of any such annual bonus that would have been paid is equal to the Executive based on actual performance but for any such guarantee) or (y) Separation Payment, as defined above. Notwithstanding the Executive's plan/target bonus opportunity for foregoing, in the fiscal year in which Executive's event of a Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after within one year following a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive Separation Payment shall be required to execute and deliver paid in a validsingle lump sum within ten (10) business days following the effective date of the Qualifying Termination, binding and irrevocable general release again provided that if the ten business day period would end in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after a later calendar year than the date of his the Qualifying Termination). The payments provided for in this Section 4(d) , no part of the Separation Payment shall be made not later than paid during the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)earlier calendar year.
Appears in 1 contract
Qualifying Termination. If Upon a Qualifying Termination, the Executive will receive the Accrued Payments and, provided the Executive remains in compliance with the terms of this Agreement and has met the requirements of the Release Obligation, the following severance benefits (the “Severance Benefits”):
(a) The Company shall provide the Executive's employment is terminated in a Qualifying Termination during the Protection Period, then the Executive shall be entitled to as severance, the following benefits:
(i) a pro rata portion twelve (based on the number of calendar days that have elapsed before the Executive's Date of Termination12) months of the Executive's plan/target annual incentive award ’s then-current Base Salary (disregarding any reduction that may have given rise to Good Reason) (the “Cash Severance”). The Severance will be paid in effect equal bi-weekly installments as a continuation on the Employer’s regular payroll for a period of twelve (12) months (the fiscal year in which “Severance Period”), beginning no later than the Date of Termination occurs; first regularly-scheduled payroll date following the sixtieth (60th) day after the Executive’s Separation from Service, provided that, if the Executive has fulfilled the Release Obligation. The Severance will be subject to all applicable withholding and deductions; and
(ii) If Executive is entitled eligible for and timely elects continued group health plan coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 or any state law of similar effect (“COBRA”) following Executive’s Qualifying Termination, the Company will pay Executive’s COBRA group health insurance premiums (the “COBRA Severance”) for Executive and Executive’s eligible dependents directly to receive a retention/stay bonus the insurer until the earliest of (A) the end of the period immediately following Executive’s Qualifying Termination that is equal to the Severance Period (the “COBRA Payment Period”), (B) the expiration of Executive’s eligibility for continuation coverage under COBRA, or (C) the date when Executive becomes eligible for substantially equivalent health insurance coverage in connection with new employment or self-employment. For purposes of this Section, references to COBRA premiums shall not include any amounts payable by Executive under a Section 125 health care reimbursement plan under the Change Code. Notwithstanding the foregoing, if at any time the Company determines, in Control its sole discretion, that is payable with respect it cannot pay the COBRA premiums without potentially incurring financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), the Company will instead pay Executive on the last day of each remaining month of the COBRA Payment Period, a fully taxable cash payment equal to the fiscal year COBRA premiums for that month, subject to applicable tax withholdings (such amount, the “Special Severance Payment”), which payments shall continue until the earlier of expiration of the COBRA Payment Period or the date when Executive becomes eligible for substantially equivalent health insurance coverage in connection with new employment or self-employment. On the first payroll date following the effectiveness of the Separation Agreement, the Company will make the first payment to the insurer under this clause (and, in the case of the Special Severance Payment, such payment will be to Executive, in a lump sum) equal to the aggregate amount of payments that the Company would have paid through such date had such payments instead commenced on the Separation Date, with the balance of the payments paid thereafter on the schedule described above. If Executive becomes eligible for coverage under another employer’s group health plan, Executive must immediately notify the Company of such event, and all payments and obligations under this subsection shall cease, and
(b) If, following the end of the Bonus Year in which the Executive's ’s Qualifying Termination occurs, the Board determines in good faith that the applicable Bonus objectives and milestones for that Bonus Year have been achieved, Executive shall will receive a Bonus, as so determined by the greater Board and pro-rated based on the date of the applicable stay or retention bonus or Executive’s Qualifying Termination (the pro rata plan/target bonus provided herein, but the Executive shall not “Bonus Severance”). The Bonus Severance will be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided payment timing provisions set forth in Section 1274(b)(2)(B) of the Internal Revenue Code of 19862.2, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined subject to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated all applicable deductions and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)withholdings.
Appears in 1 contract
Qualifying Termination. If Notwithstanding the Executive's employment is terminated in a Qualifying Termination during the Protection Period, then the Executive shall be entitled to the following benefitsforegoing:
(i) In the event of the Participant’s Qualifying Termination prior to the completion of the Performance Period applicable to an Award, a pro rata portion of the LTIP Units which may be earned under the Award will become Performance Earned Units, with the actual number of Earned Units determined as follows:
(A) with respect to Tranches 1 and 2, based on actual performance through the most recently completed fiscal quarter measured against the Performance Components as prorated based on the number of calendar days that have elapsed before fiscal quarters completed prior to the Executive's Termination Date relative to the total number of Terminationfiscal quarters in the Performance Period; and
(B) of the Executive's plan/target annual incentive award in effect for the fiscal year in which the Date of Termination occurs; provided that, if the Executive is entitled to receive a retention/stay bonus in connection with the Change in Control that is payable with respect to Tranche 3, based on actual performance through the fiscal year in which Termination Date measured against the Executive's Qualifying Performance Components as pro-rated based on actual performance through the Termination occursDate; provided, that any performance criteria based on the Executive achievement of company-wide strategic objectives or satisfaction of individual performance criteria shall receive the greater of the applicable stay be deemed achieved or retention bonus or the pro rata plan/satisfied at target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;level (as applicable).
(ii) The number of Performance Earned Units calculated in lieu accordance with Section 3(b)(i) which become Vested LTIP Units will be pro-rated based on the number of any further salary payments days in the applicable Performance Period completed prior to the Executive for periods subsequent Termination Date, and such pro-rated number of earned LTIP Units under the Award shall be deemed Vested LTIP Units (and any LTIP Units issued hereunder that are not so vested shall be immediately forfeited). Upon the determination of the number of pro-rated Performance Earned Units, additional LTIP Units shall become Dividend Earned Units (which shall be Vested LTIP Units) with respect to any Distribution Payments made between the Effective Date and the Termination Date using the methodology set forth in Section 2(b)(ii), calculated as though the Termination Date was the Vesting Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Controlapplicable Performance Earned Units;
(iii) $10,000 for two years In the event of tax the Participant’s Qualifying Termination after the completion of the Performance Period applicable to an Award, but prior to a Vesting Date, then with respect to all such unvested Performance Earned Units, (A) such Performance Earned Units shall become Vested LTIP Units as of the Termination Date, (B) an additional number of LTIP Units shall become Dividend Earned Units (which shall be Vested LTIP Units) using the methodology set forth in Section 2(b)(ii), calculated as though the Termination Date was the Vesting Date of such Performance Earned Units, and financial planning services;(C) any LTIP Units issued hereunder that do not so become Vested LTIP Units shall immediately be forfeited.
(iv) full and immediate vesting The levels of all options, awards of restricted stock and achievement with respect to any other equity or equity-based awards held Performance Components shall be adjusted from time to time by the Executive. All options held by the Executive will be exercisable for the applicable period specified Committee as it deems equitable and necessary in the relevant option agreement. To be eligible to receive benefits under this Section 4(d)light of acquisitions, the Executive shall be required to execute dispositions and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on other transactions or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by extraordinary or one-time events that impact the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)’s operations.
Appears in 1 contract
Qualifying Termination. If Upon a Qualifying Termination, the Executive will receive the Accrued Payments and, provided the Executive remains in compliance with the terms of this Agreement and has met the requirements of the Release Obligation, the following severance benefits (the “Severance Benefits”):
(a) The Company shall provide the Executive's employment is terminated in a Qualifying Termination during the Protection Period, then the Executive shall be entitled to as severance, the following benefits:
(i) twelve (12) months of the Executive’s then-current Base Salary (disregarding any reduction that may have given rise to Good Reason) (the “Cash Severance”). The Severance will be paid in a pro rata portion single lump-sum cash payment on Employer’s or the Employer’s successor’s first regular payroll date following the date on which the Release Obligation has been fulfilled. The Severance will be subject to all applicable withholding and deductions; and
(ii) a lump-sum cash amount, on Employer’s first regular payroll date following the date on which the Release Obligation has been fulfilled, equal to the product of twelve (12) months, multiplied by the grossed-up monthly premium pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), that Executive would be required to pay to continue the group health coverage in effect on the Separation Date for Executive and any of Executive’s eligible dependents (which amount will be based on the number premium for the first month of calendar days that have elapsed before COBRA coverage) (the Executive's Date of Termination“COBRA Severance”); and
(b) If, following the end of the Executive's plan/target annual incentive award in effect for the fiscal year in which the Date of Termination occurs; provided that, if the Executive is entitled to receive a retention/stay bonus in connection with the Change in Control that is payable with respect to the fiscal year Bonus Year in which the Executive's ’s Qualifying Termination occurs, the Board determines in good faith that the applicable Bonus objectives and milestones for that Bonus Year have been achieved, Executive shall will receive a Bonus, as so determined by the greater Board and pro-rated based on the date of the applicable stay or retention bonus or Executive’s Qualifying Termination (the pro rata plan/target bonus provided herein, but the Executive shall not “Bonus Severance”). The Bonus Severance will be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided payment timing provisions set forth in Section 1274(b)(2)(B) of the Internal Revenue Code of 19862.2, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined subject to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated all applicable deductions and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)withholdings.”
Appears in 1 contract
Qualifying Termination. If If, during the Term, Executive incurs a Qualifying Termination, then subject to and conditioned upon Executive's employment is terminated ’s timely execution and non-revocation of a general release of claims in a Qualifying form prescribed by the Company (the “Release”) which becomes effective and irrevocable no later than sixty (60) days following the Termination during Date and Executive’s continued compliance with the Protection Periodprovisions of Section 6 hereof, then the Company shall pay or provide to Executive shall be entitled the following (in addition to the following benefits:Accrued Obligations):
(i) The Company shall continue to pay to Executive amounts equal to Executive’s then-current Base Salary (which, in the event of a pro rata portion resignation by Executive for Good Reason due to a material reduction in Executive’s Base Salary, shall be the Base Salary in effect immediately prior to such reduction) (based the “Continued Salary Severance”) during the period commencing on the number of calendar days that have elapsed before Termination Date and ending on the Executive's Date of Termination) last day of the Executive's plan/target annual incentive award then-current Term (the “Severance Period”). The Company shall pay the Continued Salary Severance in effect for substantially equal installments in accordance with the fiscal year in Company’s customary payroll practices during the Severance Period; provided, that no such payments shall be made prior to the date on which the Date of Termination occurs; provided thatRelease becomes effective and irrevocable and, if the aggregate period during which Executive is entitled to receive consider and/or revoke the Release spans two (2) calendar years, no Continued Salary Severance payments shall be made prior to the beginning of the second (2nd) such calendar year (and any payments otherwise payable prior thereto shall instead be paid on the first regularly scheduled Company payroll date occurring in the latter such calendar year or, if later, the first regularly scheduled Company payroll date occurring after the Release becomes effective and irrevocable (in either case, the “First Payroll Date”)).
(ii) The Company shall pay to Executive a retention/stay bonus lump sum payment (the “Lump Sum Severance”) equal to (A) three (3) times the Average Compensation less (B) an amount equal to the Continued Salary Severance, payable in connection with a single lump sum cash payment on the Change First Payroll Date. For purposes of this Agreement, “Average Compensation” is the average of the sum of Executive’s actual (x) Base Salary (which, in Control that is payable with respect the event of a resignation by Executive for Good Reason due to a material reduction in Executive’s Base Salary, shall be the Base Salary in effect immediately prior to such reduction) and (y) Annual Bonus, in each case, for the three (3) fiscal years ending immediately prior to the fiscal year in which the Executive's Qualifying Termination occurs. For the avoidance of doubt, in no event shall the Executive shall receive the greater sum of the applicable stay or retention bonus or Lump Sum Severance plus the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
Continued Salary Severance exceed three (ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (23) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)Average Compensation.
Appears in 1 contract
Sources: Employment Agreement (Kennedy-Wilson Holdings, Inc.)
Qualifying Termination. If the Executive's employment is terminated in In addition, if Executive experiences a Qualifying Termination during the Protection Periodthen, then the subject to Section 2(e) hereof and Executive’s continued compliance with his obligations under Sections 4 - 7 hereof, Executive shall be entitled to the following benefitsreceive:
(i) an amount in cash equal to the Base Salary, disregarding any reduction in salary giving rise to Good Reason, payable in substantially equal installments in accordance with the Company’s normal payroll procedures (but not less frequently than monthly) over the 15-month period following the Date of Termination (the “Salary Severance”); provided, that such Salary Severance payments shall commence on the first payroll date following the effective date of the Release, and amounts otherwise payable prior to such first payroll date shall be paid on the first payroll date without interest thereon;
(ii) a pro pro-rata portion (based on the number of calendar days that have elapsed before the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect ’s Annual Bonus for the fiscal calendar year in which the Date of Termination occurs; provided that, if had Executive remained employed through the payment date and based on the achievement of any applicable performance goals or objectives, pro-rated based on the number of days during such calendar year that Executive is entitled to receive was employed by the Company, payable in a retention/stay bonus in connection with single cash lump sum on the Change in Control that is payable with respect date on which annual bonuses are paid to the fiscal Company’s senior executives generally for such calendar year, but no later than March 15 of the calendar year following the calendar year in which the Executive's Qualifying Date of Termination occurs, the Executive shall receive the greater of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(iiiii) in lieu of any further salary payments subject to Executive’s valid and timely election to continue healthcare coverage under Code Section 4980B and the Executive for periods subsequent to the Date of Termination and other severance benefitsregulations thereunder, the Company shall pay to the Executive after such termination of employment, on a lump sum severance payment in monthly basis, an amount equal to two (2) times the sum monthly amount of the COBRA continuation coverage premium for such month, at the same level and cost to Executive as immediately preceding the Date of Termination, under the Company group health plan in which Executive participated immediately preceding the Date of Termination, less the amount of Executive’s portion of such monthly premium as in effect immediately preceding the Date of Termination, until the earlier of (A) 18 months after the higher Date of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control Termination; and (B) the higher of date on which Executive and his family have obtained other substantially similar healthcare coverage; provided, however, that if (x) the highest award paid any plan pursuant to which such benefits are provided is not, or payable ceases prior to the Executive pursuant to the Company's annual incentive plan for each expiration of the two measuring periods completed immediately before period of continuation coverage to be, exempt from the event or circumstance upon which the Notice application of Termination is based (determined without reference to any guaranteed annual bonus Code Section 409A under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) Treasury Regulation Section 1.409A-1(a)(5), or (y) the Executive's plan/target bonus opportunity for Company is otherwise unable to continue to cover Executive under its group health plans without incurring penalties (including without limitation, pursuant to Section 2716 of the fiscal year Public Health Service Act or the Patient Protection and Affordable Care Act), then, in which Executive's Qualifying Termination occurseither case, without giving effect each remaining premium payment under this this sentence shall thereafter be paid to any reduction Executive in substantially equal monthly installments over the Executive's plan/target annual incentive bonus opportunity on period specified in subsections (A) and (B) (or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning servicesthe remaining portion thereof);
(iv) full and immediate vesting of all optionsexcept as otherwise explicitly set forth in an individual award agreement evidencing a Time-Based Equity Award, awards of restricted stock and any other equity or equityeach outstanding Time-based awards Based Equity Award held by Executive as of the ExecutiveDate of Termination shall vest and, as applicable, become exercisable with respect to the number of shares underlying the Time-Based Equity Award that would otherwise have vested had Executive remained in continuous employment with the Company through the 15-month anniversary of the Date of Termination, and assuming that the vesting schedule applicable to such Time-Based Equity Award is in substantially equal monthly installments through the vesting period. All options Each outstanding Equity Award held by Executive as of the Executive will Date of Termination that is not a Time-Based Equity Award shall be exercisable for treated in accordance with the terms and conditions of the applicable period specified in award agreement and the relevant option agreement. To be eligible to receive benefits under this Section 4(d)Plan; and
(v) any outstanding stock options covering the Class A common stock of HoldCo held by Executive on the Date of Termination, the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after extent vested as of or in connection with the date of his Qualifying Termination). The payments provided for in this Section 4(d) , shall be made not later than remain exercisable until the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, three-year anniversary of the minimum amount Date of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986Termination, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than beyond the thirtieth (30th) day after the Date outside expiration date of Termination. If the estimated payments exceed the amount subsequently determined to be due, each such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)stock option.
Appears in 1 contract
Qualifying Termination. If the Executive's employment is terminated in ’s Termination Date occurs prior to December 31, 2015 by reason of a Qualifying Termination during and if the Protection PeriodRelease Requirements (as defined Paragraph 4(d)) are satisfied as of the sixtieth (60th) day following the Termination Date (which sixtieth (60th) day shall be referred to as the “Payment Date”), then then, in addition to the payments and benefits to which Executive shall is entitled under Paragraph 4(a), Executive will be entitled to the following payments and benefits:
(i) Company shall pay Executive a pro rata portion cash severance payment in a gross amount equal to six (based 6) months of Executive’s Base Salary (determined as of the Termination Date) (the “Severance Payment”). Any Severance Payment to which Executive is entitled under this Paragraph 4(b)(i) will commence on the number first regular payroll date after the Payment Date and shall continue to be paid in substantially equal payroll by payroll period installments for a period of calendar days six (6) months thereafter.
(ii) If Executive is entitled to and elects continuation coverage under Company’s group health plans pursuant to “COBRA” (“COBRA Coverage”), Company shall continue to pay on behalf of Executive and his eligible dependents the same level of employer contribution that is provided by Company for corresponding coverage for similarly-situated active employees for the lesser of (1) six (6) months following Executive’s Termination Date or (2) the date on which COBRA Coverage terminates by its terms (the “Post-Termination Coverage Benefit”). Company shall have elapsed before no obligations under this Paragraph 4(b)(ii) if the Post-Termination Coverage Benefit would subject Company or any of its affiliates to tax penalties or materially increase the cost to Company and its affiliates of providing group EXECUTIVE EMPLOYMENT AGREEMENT medical coverage to employees generally. For the period commencing on Executive's ’s Termination Date of Terminationand ending on the Payment Date, the COBRA Coverage shall be provided at Executive’s expense and, if the Release Requirements are satisfied on the Payment Date, Executive shall be entitled to a lump sum payment in an amount equal to the Post-Termination Coverage Benefit that would have been provided to Executive for the period beginning on the Termination Date and ending on the Payment Date, which lump sum payment shall be made on the Payment Date or the next scheduled payroll date.
(iii) Company shall pay Executive a cash payment equal to 5/12 of the Executive's plan/target annual incentive award in effect amount of the Annual Bonus that Executive would have received for the fiscal bonus year in which the Termination Date of occurs had his Termination occurs; provided thatDate not occurred, if based on actual Company performance, payable at the Executive same time as the annual bonus is entitled paid to receive a retention/stay bonus similarly-situated active named executive officer employees in connection accordance with the Change in Control that is payable with respect to the fiscal year in which the Executive's Qualifying Termination occurs, the Executive shall receive the greater terms of the applicable stay or retention bonus or plan of Company. If the pro rata plan/target bonus provided hereinRelease Requirements are not satisfied on the Payment Date, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statementParagraph 4(b).
Appears in 1 contract
Qualifying Termination. If the Executive's employment is terminated in a Qualifying Termination during the Protection Period, then the Executive shall be entitled to the following benefits:
(i) a pro rata portion (based on the number of calendar days that have elapsed before the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect for the fiscal year in which the Date of Termination occurs; provided that, if the Executive is entitled to receive a retention/stay bonus in connection with the Change in Control that is payable with respect to the fiscal year in which the Executive's Qualifying Termination occurs, the Executive shall receive the greater of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two three (23) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement).
Appears in 1 contract
Qualifying Termination. If If, during the Term, Executive's ’s employment is terminated in as a result of a Qualifying Termination during the Protection PeriodTermination, then the Executive shall be entitled to receive the following benefitsAccrued Amounts (defined below) and, subject to Executive’s timely execution and delivery (and non-revocation) of a general release and waiver of claims in substantially the form set forth in Exhibit A (the “Release”) (the period between the Qualifying Termination and the date that the Release becomes effective, the “Release Execution Period”), Executive shall be entitled to receive the following:
a. a lump sum payment equal to two (i2) a pro rata portion times Executive’s Base Salary and target bonus from the Company’s Annual Incentive Program or such successor plan or program (based on the number of calendar days that have elapsed before the Executive's Date of Termination“AIP”) of the Executive's plan/target annual incentive award in effect for the fiscal year in which the Date of Qualifying Termination occurs, which shall be paid within sixty (60) days following such termination; provided that, if the Executive is entitled to receive a retention/stay bonus Release Execution Period begins in connection with the Change one taxable year and ends in Control that is payable with respect to the fiscal year in which the Executive's Qualifying Termination occursanother taxable year, the Executive shall receive the greater of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive payment shall not be entitled to both made until the retention/stay bonus and first payroll period in January of the pro rata plan/target bonus provided hereinsecond taxable year;
b. if Executive (and his dependents) timely elects to continue health care continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company will reimburse Executive (and his dependents) monthly for COBRA healthcare continuation premiums until the earlier of: (i) the eighteen (18) month anniversary of the Qualifying Termination; (ii) the date on which Executive becomes eligible for health care coverage from a subsequent employer; and (iii) the date that Executive and his spouse qualify for coverage under Medicare. Notwithstanding the foregoing, if Flagstar’s making payments under this Section 2.1(c) would violate the nondiscrimination rules applicable to non-grandfathered plans under the Affordable Care Act or any successor law (the “ACA”), or result in lieu the imposition of any further salary payments penalties under the ACA and the related regulations and guidance promulgated thereunder), the Parties agree to reform this Section 2.1(c) in a manner as is necessary to comply with the Executive for periods subsequent to ACA; and
c. notwithstanding the Date terms of Termination the Company 2016 Stock Award and other severance benefitsIncentive Plan (the “2016 Plan”), the Company 2006 Equity Incentive Plan, as amended, or any applicable award documents, all of Executive’s then-outstanding unvested stock shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control become fully vested and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)their full term.
Appears in 1 contract
Qualifying Termination. If the Executive's employment is terminated in a Qualifying Termination during the Protection Period, then the Executive shall be entitled to the following benefits:
(i) a pro rata portion (based on the number of calendar days that have elapsed before the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect for the fiscal year in which the Date of Termination occurs; provided that, if the Executive is entitled to receive a retention/stay bonus in connection with the Change in Control that is payable with respect to the fiscal year in which the Executive's Qualifying Termination occurs, the Executive shall receive the greater of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target threshold bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target threshold annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement).
Appears in 1 contract
Qualifying Termination. If In the event an Eligible Executive's ’s employment is terminated in with the Company and, as applicable, each of its Affiliates, ends due to a Qualifying Termination during the Protection PeriodTermination, then the such Eligible Executive shall be entitled to receive the following benefitsAccrued Amounts, and so long as such Eligible Executive satisfies the Release Requirement and abides by the terms of Sections 7, 8, 9, 10 and 11 below, such Eligible Executive shall also be entitled to receive:
(i) a pro rata portion (based A lump sum severance payment to such Eligible Executive in an amount equal to the Severance Amount, payable on or prior to the number of calendar Company’s first regularly scheduled pay date that on or after the date that is 60 days that have elapsed before the after such Eligible Executive's ’s Date of Termination;
(ii) The Prior Year Annual Bonus, if applicable, payable in a lump sum at the time annual bonuses for such prior fiscal year are paid to executives of the Executive's plan/target annual incentive award Company, but in effect no event later than the Applicable March 15;
(iii) A Pro-Rata Annual Bonus for the fiscal year of the Company in which the Date of Termination occurs; provided that, if the Executive is entitled to receive a retention/stay bonus payable in connection with the Change in Control that is payable with respect to the fiscal year in which the Executive's Qualifying Termination occurs, the Executive shall receive the greater of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times at the sum of (A) the higher of (I) the Executive's time annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan bonuses for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been fiscal year are paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years executives of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth Applicable March 15; and
(30thiv) day after If such Eligible Executive timely and properly elects to continue coverage for such Eligible Executive and such Eligible Executive’s spouse and eligible dependents, if any, under the Company’s group health plans pursuant to COBRA, similar in the amounts and types of coverage provided under the Company’s group health plans to such Eligible Executive prior to such Eligible Executive’s Date of Termination. If , then during the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth COBRA Continuation Period (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Codeas defined below). When payments are made under this Section, the Company shall provide a subsidy, which subsidy shall be paid directly to the applicable COBRA administrator, on a monthly basis for the difference between the amount such Eligible Executive with a written statement setting forth the manner in which pays to effect and continue such payments were calculated coverage and the basis for such calculations including, without limitation, any opinions or other advice employee contribution amount that active executive employees of the Company has received from outside counselpay for the same or similar coverage under such group health plans (the “COBRA Benefit”). Notwithstanding anything in the preceding provisions of this Section 5(a)(iv) to the contrary, auditors or consultants (A) the election of COBRA continuation coverage and the payment of any premiums due with respect to such COBRA continuation coverage will remain such Eligible Executive’s sole responsibility, and the Company will assume no obligation for payment of any such written opinions or advice shall be attached premiums relating to the statement).such COBRA continuation coverage and
Appears in 1 contract
Qualifying Termination. If If, during the Term, Executive incurs a Qualifying Termination, then subject to and conditioned upon Executive's employment is terminated ’s timely execution of a settlement agreement in a Qualifying Termination during form prescribed by the Protection PeriodCompany, then which shall be in full and final settlement of all and any rights and claims which the Executive has or may have against the Company and any of its subsidiaries and affiliates, and any of its or their directors, officers, employees and shareholders, arising from or in connection with his employment or directorships and / or their termination (including both contractual and statutory employment claims in the UK) (the “Release”) which becomes effective as soon as reasonably practicable following the Termination Date, but in no event later than five (5) days following the Termination Date and Executive’s continued compliance with the provisions of Section 6 hereof, the Company shall be entitled pay or provide to Executive the following (in addition to the following benefits:Accrued Obligations):
(i) The Company shall continue to pay to Executive amounts equal to Executive’s then-current Base Salary (which, in the event of a pro rata portion resignation by Executive for Good Reason due to a material reduction in Executive’s Base Salary, shall be the Base Salary in effect immediately prior to such reduction) (based the “Continued Salary Severance”) during the period commencing on the number of calendar days that have elapsed before Termination Date and ending on the Executive's Date of Termination) last day of the Executive's plan/target annual incentive award then-current Term (the “Severance Period”). The Company shall pay the Continued Salary Severance in effect for substantially equal installments in accordance with the fiscal year in Company’s customary payroll practices during the Severance Period; provided, that no such payments shall be made prior to the date on which the Date of Termination occurs; provided thatRelease becomes effective and irrevocable and, if the aggregate period during which Executive is entitled to receive consider and/or revoke the Release spans two (2) calendar years, no Continued Salary Severance payments shall be made prior to the beginning of the second (2nd) such calendar year (and any payments otherwise payable prior thereto shall instead be paid on the first regularly scheduled Company payroll date occurring in the latter such calendar year or, if later, the first regularly scheduled Company payroll date occurring after the Release becomes effective and irrevocable (in either case, the “First Payroll Date”)).
(ii) The Company shall pay to Executive a retention/stay bonus lump sum payment (the “Lump Sum Severance”) equal to (A) two (2) times the Average Compensation less (B) an amount equal to the Continued Salary Severance, payable in connection with a single lump sum cash payment on the Change First Payroll Date. For purposes of this Agreement, “Average Compensation” is the average of the sum of Executive’s actual (x) EU-DOCS\45887982.1 Base Salary (which, in Control that is payable with respect the event of a resignation by Executive for Good Reason due to a material reduction in Executive’s Base Salary, shall be the Base Salary in effect immediately prior to such reduction) and (y) Annual Bonus, in each case, for the three (3) fiscal years ending immediately prior to the fiscal year in which the Executive's Qualifying Termination occurs. For the avoidance of doubt, in no event shall the Executive shall receive the greater sum of the applicable stay or retention bonus or Lump Sum Severance plus the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to Continued Salary Severance exceed two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)Average Compensation.
Appears in 1 contract
Sources: Employment Agreement (Kennedy-Wilson Holdings, Inc.)
Qualifying Termination. If the Executive's employment is terminated in Should you incur a Qualifying Termination during (as defined below) you will be eligible for the Protection Periodfollowing payments and benefits, then provided that you remain in compliance with your obligations under the Executive shall be entitled terms of this agreement, including, but not limited to the following benefits:
provisions regarding non-competition, non-solicitation, and non-disparagement, and the Release (i) a pro rata portion (based on the number of calendar days that have elapsed before the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect for the fiscal year in which the Date of Termination occurs; provided that, if the Executive is entitled as defined below). Should you fail to receive a retention/stay bonus in connection comply with the Change in Control that is payable with respect to the fiscal year in which the Executive's Qualifying Termination occurs, the Executive shall receive the greater of the applicable stay or retention bonus your obligations under this Agreement or the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefitsRelease, the Company shall pay may, in addition to the Executive a lump sum severance any other available remedies, cease making any payment in an amount or benefit provided for herein. SEPARATION PAYMENT: A separation payment, before applicable deductions, equal to two one and one-half (21.5) times the sum of (A) the higher of (I) the Executive's annual your base salary as in effect immediately before as of your termination of employment, plus in the event or circumstance upon which the Notice of a Qualifying Termination is based under subparagraphs (3) or (II4) as set forth in the Executive's definition below of Qualifying Termination, an amount equal to the average annual base salary cash bonuses received by you during the three year period ending prior to the year in effect immediately before which the Change in Control occurs (the "Separation Payment"). If you have executed and (B) returned the higher Release described below within thirty days after the date of (x) your Qualifying Termination, the highest award Separation Payment shall be paid or payable as follows: 50% of the Separation Payment shall be paid to you within ten business days of your execution of the Executive pursuant Release, with the remaining 50% to be paid in equal installments, without interest, commencing on the Company's annual incentive plan for each second regularly scheduled payroll following your execution of the two measuring periods completed immediately before Release and ending with the Company's regularly scheduled payroll one year later (the "Separation Pay Period"), provided that if the ten business day period would end in a later calendar year than the date of the Qualifying Termination, no part of the Separation Payment shall be paid until the first business day of the subsequent calendar year. In the event or circumstance upon which of a change in payroll practice during the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of Separation Pay Period, the Company but taking into account may adjust the amounts of such installments as necessary to ensure that the total amount of any such annual bonus that would have been paid is equal to the Executive based on actual performance but for any such guarantee) or (y) Separation Payment, as defined above. Notwithstanding the Executive's plan/target bonus opportunity for foregoing, in the fiscal year in which Executive's event of a Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after within one year following a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive Separation Payment shall be required to execute and deliver paid in a validsingle lump sum within ten (10) business days following the effective date of the Qualifying Termination, binding and irrevocable general release again provided that if the ten business day period would end in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after a later calendar year than the date of his the Qualifying Termination). The payments provided for in this Section 4(d) , no part of the Separation Payment shall be made not later than paid during the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)earlier calendar year.
Appears in 1 contract
Qualifying Termination. If the Executive's employment is terminated in In addition, if Executive experiences a Qualifying Termination during the Protection Periodthen, then the subject to Section 2(e) hereof and Executive’s continued compliance with his obligations under Sections 4 - 7 hereof, Executive shall be entitled to the following benefitsreceive:
(i) an amount in cash equal to the Base Salary, disregarding any reduction in salary giving rise to Good Reason, payable in substantially equal installments in accordance with the Company’s normal payroll procedures (but not less frequently than monthly) over the 12-month period following the Date of Termination (the “Salary Severance”); provided, that such Salary Severance payments shall commence on the first payroll date following the effective date of the Release, and amounts otherwise payable prior to such first payroll date shall be paid on the first payroll date without interest thereon;
(ii) a pro pro-rata portion (based on the number of calendar days that have elapsed before the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect ’s Annual Bonus for the fiscal calendar year in which the Date of Termination occurs; provided that, if had Executive remained employed through the payment date and based on the achievement of any applicable performance goals or objectives, pro-rated based on the number of days during such calendar year that Executive is entitled to receive was employed by the Company, payable in a retention/stay bonus in connection with single cash lump sum on the Change in Control that is payable with respect date on which annual bonuses are paid to the fiscal Company’s senior executives generally for such calendar year, but no later than March 15 of the calendar year following the calendar year in which the Executive's Qualifying Date of Termination occurs, the Executive shall receive the greater of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(iiiii) in lieu of any further salary payments subject to Executive’s valid and timely election to continue healthcare coverage under Code Section 4980B and the Executive for periods subsequent to the Date of Termination and other severance benefitsregulations thereunder, the Company shall pay to the Executive after such termination of employment, on a lump sum severance payment in monthly basis, an amount equal to two (2) times the sum monthly amount of the COBRA continuation coverage premium for such month, at the same level and cost to Executive as immediately preceding the Date of Termination, under the Company group health plan in which Executive participated immediately preceding the Date of Termination, less the amount of Executive’s portion of such monthly premium as in effect immediately preceding the Date of Termination, until the earlier of (A) 18 months after the higher Date of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control Termination; and (B) the higher of date on which Executive and his family have obtained other substantially similar healthcare coverage; provided, however, that if (x) the highest award paid any plan pursuant to which such benefits are provided is not, or payable ceases prior to the Executive pursuant to the Company's annual incentive plan for each expiration of the two measuring periods completed immediately before period of continuation coverage to be, exempt from the event or circumstance upon which the Notice application of Termination is based (determined without reference to any guaranteed annual bonus Code Section 409A under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) Treasury Regulation Section 1.409A-1(a)(5), or (y) the Executive's plan/target bonus opportunity for Company is otherwise unable to continue to cover Executive under its group health plans without incurring penalties (including without limitation, pursuant to Section 2716 of the fiscal year Public Health Service Act or the Patient Protection and Affordable Care Act), then, in which Executive's Qualifying Termination occurseither case, without giving effect each remaining premium payment under this this sentence shall thereafter be paid to any reduction Executive in substantially equal monthly installments over the Executive's plan/target annual incentive bonus opportunity on period specified in subsections (A) and (B) (or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning servicesthe remaining portion thereof);
(iv) full and immediate vesting of all optionsexcept as otherwise explicitly set forth in an individual award agreement evidencing a Time-Based Equity Award, awards of restricted stock and any other equity or equityeach outstanding Time-based awards Based Equity Award held by Executive as of the ExecutiveDate of Termination shall vest and, as applicable, become exercisable with respect to the number of shares underlying the Time-Based Equity Award that would otherwise have vested had Executive remained in continuous employment with the Company through the 12-month anniversary of the Date of Termination, and assuming that the vesting schedule applicable to such Time-Based Equity Award is in substantially equal monthly installments through the vesting period. All options Each outstanding Equity Award held by Executive as of the Executive will Date of Termination that is not a Time-Based Equity Award shall be exercisable for treated in accordance with the terms and conditions of the applicable period specified in award agreement and the relevant option agreement. To be eligible to receive benefits under this Section 4(d)Plan; and
(v) any outstanding stock options covering the Class A common stock of HoldCo held by Executive on the Date of Termination, the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after extent vested as of or in connection with the date of his Qualifying Termination). The payments provided for in this Section 4(d) , shall be made not later than remain exercisable until the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, three-year anniversary of the minimum amount Date of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986Termination, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than beyond the thirtieth (30th) day after the Date outside expiration date of Termination. If the estimated payments exceed the amount subsequently determined to be due, each such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)stock option.
Appears in 1 contract
Qualifying Termination. If If, during the Term, (i) Executive resigns for Good Reason or (ii) the Bank terminates Executive's ’s employment is terminated other than for Cause or Disability (each, a “Qualifying Termination”), then, subject to Section 6 hereof:
(1) the Bank shall pay to Executive in a Qualifying Termination during lump sum in cash within thirty (30) days after the Protection Perioddate of termination, then the exact payment date to be determined by the Bank, Executive’s Base Salary through the date of termination to the extent not theretofore paid (the “Accrued Salary”), (ii) any earned and unpaid Annual Bonus for any year prior to the year in which the date of termination occurs, and (iii) any unreimbursed business expenses incurred by Executive on or before the date of termination;
(2) Executive shall be entitled to the following benefits:
(i) receive a pro rata portion (based on the number of calendar days that have elapsed before the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect Annual Bonus for the fiscal year in which the Date date of Termination termination occurs; provided that, equal to (i) the Annual Bonus, if any, that would have been earned by Executive for such year if he had remained employed on such payment date, based on actual performance under applicable financial metrics, multiplied by (ii) a fraction, the numerator of which is the number of days worked by Executive during such final year and the denominator of which is entitled 365 (the “Final Year Pro Rata Bonus”), and such Final Year Pro Rata Bonus shall be paid a single lump sum cash payment at the time such bonus awards are normally paid for such plan year;
(3) the Bank shall pay to receive a retention/stay bonus in connection with the Change in Control that is payable with respect Executive an amount equal to the fiscal sum of (x) Executive’s then-current Base Salary plus (y) the average of the Annual Bonuses earned by Executive for each of the three (3) calendar years immediately preceding the year in which the Executive's date of termination occurs (the “Non-CIC Severance Payment”); provided, however, that if such Qualifying Termination occursoccurs during the period beginning three months prior to, and ending eighteen (18) months after the Executive shall receive closing of, a Change in Control (as defined in Exhibit A attached hereto), then the greater of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company Bank shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (Ai) Executive’s then-current Base Salary plus (ii) the higher average of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Annual Bonuses earned by Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed three calendar years immediately before preceding the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's the date of termination occurs (the “CIC Severance Payment”). Subject to Sections 6 and11 hereof, the Non-CIC Severance Payment or the CIC Severance Payment, as applicable, shall be paid in a single lump sum in cash within sixty (60) days following the date of termination (except that the excess of the CIC Severance Payment over the non-CIC Severance Payment on the date of the Qualifying Termination occurs, without giving effect shall be paid within sixty (60) days following the date of the closing of the relevant Change in Control if the termination of employment occurs during the period beginning three months prior to any reduction in and ending on the Executive's plan/target annual incentive bonus opportunity on or after a date of the Change in Control), the exact payment date to be determined by the Bank. For the avoidance of doubt, Executive shall not be entitled to receive both the CIC Severance Payment and the Non-CIC Severance Payment;
(iii4) $10,000 if Executive elects to continue participation in any group medical, dental, vision and/or prescription drug plan benefits to which Executive and/or Executive’s eligible dependents would be entitled under Section 4980B of the Code (COBRA), then for two years twenty-four (24) months following the date of tax and financial planning services;
termination (iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d“COBRA Reimbursement Period”), the Bank shall pay to Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially monthly payments (the form attached hereto as Exhibit A (which the Company shall deliver “COBRA Payments”) of an amount equal to the excess of (a) the COBRA cost of such coverage over (b) the amount that Executive promptly after would have had to pay for such coverage if he had remained employed during the date of his Qualifying Termination). The payments provided COBRA Reimbursement Period and paid the active employee rate for in this Section 4(d) shall be made not later than the date the release described above becomes binding such coverage, less withholding for taxes and irrevocable under applicable lawother similar items; provided, however, that, that (i) if the amounts Executive becomes eligible to receive group health benefits under a program of such payments cannot be finally determined on a subsequent employer or before such dayotherwise, the Company Bank’s obligation to pay any portion of the cost of health coverage as described herein shall cease, except as otherwise provided by law; and (ii) the COBRA Reimbursement Period shall only run for the period during which Executive is eligible to elect health coverage under COBRA and timely elects such coverage;
(5) the Bank shall continue to pay (no less frequently than monthly) Executive’s long-term disability premiums and life insurance premiums for Executive for a period of twelve (12) months (the “Other Premium Payments”); and
(6) to the extent not theretofore paid or provided, the Bank shall timely pay or provide to Executive on such day an estimateany other amounts or benefits required to be paid or provided or which Executive is eligible to receive under any plan, as determined in good faith by the Companyprogram, policy or practice or contract or agreement of the minimum amount of Bank and its affiliated companies (such payments other amounts and benefits shall be hereinafter referred to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement“Other Benefits”).
Appears in 1 contract
Qualifying Termination. If (1) the Company terminates the Executive's ’s employment is terminated in a Qualifying Termination during the Protection Periodfor any reason other than for Cause, then Disability or death or (2) the Executive shall be entitled to terminates employment for Good Reason (each, a “Qualifying Termination”), in either case more than six months prior to, or more than 24 months following, a Change in Control (as defined in the following benefits:2014 Stock Option and Equity Compensation Plan of Columbia Banking System, Inc.):
(i) the Company shall pay to the Executive in a pro rata portion lump sum in cash within 30 days after the Date of Termination the aggregate of (based on the number of calendar days that have elapsed before 1) the Executive's ’s accrued Annual Base Salary and any accrued vacation pay through the Date of Termination, (2) the Executive’s business expenses that have not been reimbursed by the Company as of the Date of Termination that were incurred by the Executive prior to the Date of Termination in accordance with the applicable Company policy, and (3) the Executive's plan/target annual incentive award in effect ’s Annual Bonus earned for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs; provided that, occurs if the Executive is entitled to receive a retention/stay such bonus in connection with the Change in Control that is payable with respect to the fiscal year in which the Executive's Qualifying Termination occurs, the Executive shall receive the greater has been determined but not paid as of the applicable stay or retention bonus or Date of Termination (the pro rata plan/target bonus provided herein, but sum of the Executive amounts described in clauses (1) through (3) shall not be entitled hereinafter referred to both as the retention/stay bonus and the pro rata plan/target bonus provided herein“Accrued Obligations”);
(ii) in lieu of any further salary payments subject to the Executive for periods subsequent to the Date of Termination and other severance benefitsSection 4(e), the Company shall pay to the Executive a lump sum cash severance payment benefit in an amount equal to two (2) times the sum Executive’s Annual Base Salary (the “Severance Benefits”). The Company shall pay the Severance Benefits in substantially equal installments in accordance with the Company’s normal payroll policies over the two-year period following the Date of (A) Termination; provided that the higher of (I) first payment shall be made on the Executive's annual base salary in effect immediately before 60th day following the event or circumstance upon which the Notice Date of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or shall include all installments otherwise payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any within such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control60-day period;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible subject to receive benefits under this Section 4(d4(e), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive in a lump sum in cash a pro rata portion of any Annual Bonus earned for the year in which the Date of Termination occurs (with proration determined based on such day an estimate, as determined the number of months in good faith by the Company, of the minimum amount of such payments to fiscal year in which the Executive is clearly entitled and employed with the Company). The Company shall pay the remainder prorated Annual Bonus at the same time as the Company pays annual bonuses to active employees (and no later than March 15 of the year following the fiscal year to which the Annual Bonus relates);
(iv) subject to Section 4(e), a pro rata portion of any long-term incentive awards granted to the Executive shall vest as follows: (1) a pro rata portion of any long-term incentive award that is not subject to performance-based vesting conditions shall vest as of the Date of Termination (with proration determined based on the number of months in the applicable vesting period in which the Executive is employed with the Company) and (2) a pro rata portion of any long-term incentive award that is subject to performance-based vesting conditions shall vest as of the regularly scheduled vesting date based on actual performance (with proration determined based on the number of months in the applicable vesting period in which the Executive is employed with the Company), and, in each case, any payment or delivery shall be made in respect of such payments (together awards within 60 days following vesting subject to compliance with interest at the rate provided in Section 1274(b)(2)(B) 409A of the Internal Revenue Code of 1986Code. For illustrative purposes only, as amended if the Executive holds 96 restricted shares that are scheduled to vest over a four-year period (the "Code"“Illustrative Vesting Period”) and that are not subject to performance vesting, and the Executive’s employment terminates 15.5 months after the beginning of the Illustrative Vesting Period, then 16/48 of the restricted shares (32 restricted shares) will vest upon the Executive’s termination (regardless of the vesting schedule set forth in the award and without duplication of any previous vesting) subject to Section 4(e) and the remaining 64 restricted shares will be forfeited;
(v) subject to Section 4(e), as soon as for the amount thereof can be determined but in no event later than the thirtieth (30th) day after 24-month period immediately following the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide continue the health and welfare benefits provided to the Executive with a written statement setting forth and his dependents at the manner in which levels provided to active employees; provided that, if the Company determines that such payments were calculated continuation is not feasible without the payment of taxes or penalties or is not permissible under applicable law, the Company and the basis for Executive shall cooperate in good faith to modify this section in such calculations including, without limitation, any opinions or other advice a manner that does not materially increase the cost to the Company has received from outside counsel(collectively, auditors the “Welfare Benefits”); and
(vi) to the extent not theretofore paid or consultants provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or that the Executive is eligible to receive under any plan, program, policy, practice, contract or agreement of the Company and its affiliated companies through the Date of Termination (such other amounts and any such written opinions or advice benefits shall be attached hereinafter referred to as the statement“Other Benefits”). As used in this Agreement, the term “affiliated companies” shall include any company controlled by, controlling or under common control with the Company.
Appears in 1 contract
Qualifying Termination. If Notwithstanding Section 7(a) above, if the Executive's termination of this Agreement and Employee’s employment is terminated in hereunder constitutes a Qualifying Termination during the Protection Period(as defined below), then the Executive shall be entitled then, in addition to the following benefitsEmployee’s Accrued Obligations and subject to Section 7(c) below:
(i) a pro rata portion (based on the number of calendar days that have elapsed before the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect for the fiscal year in which the Date of Termination occurs; provided that, if the Executive is entitled to receive a retention/stay bonus in connection with the Change in Control that is payable with respect to the fiscal year in which the Executive's Qualifying Termination occurs, the Executive shall receive the greater of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall be obligated to pay to the Executive Employee a lump sum severance payment in an amount (the “Severance Payment”) equal to two (2) times the sum of (A) one (1) year of Employee’s Base Salary (at the higher rate in effect on the Termination Date) plus (B) one (1) times the amount of the Annual Bonus paid to Employee in the prior fiscal year (collectively, the “Severance Payment”). The Severance Payment shall be paid to Employee in a lump sum on the next regular Company pay date following the 60th day after the Termination Date; and
(ii) if Employee timely elects to continue and maintain group health plan coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), the Company will reimburse Employee for a portion of the healthcare continuation payments under COBRA actually paid by Employee for the coverage period ending on the earlier of (IA) the Executive's annual base salary in effect immediately before one (1) year anniversary of the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control Date, and (B) the higher of date Employee becomes eligible to obtain healthcare coverage from a new employer (“COBRA Assistance Period”), which portion will be equal to (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each amount of the two measuring periods completed immediately before monthly health care premium payment under COBRA actually paid by Employee for COBRA coverage during the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or COBRA Assistance Period, less (y) the Executive's plan/target bonus opportunity for amount Employee would have been required to contribute toward health insurance coverage during the fiscal year in which Executive's Qualifying Termination occurs, without giving effect COBRA Assistance Period if Employee had remained an active employee of the Company (the “COBRA Assistance”). Employee agrees to any reduction in immediately inform the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning services;
(iv) full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be Company if he becomes eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver obtain alternate healthcare coverage from a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver new employer prior to the Executive promptly after one (1) year anniversary of the Termination Date. Employee also agrees to remit to the Company, on a monthly basis and within thirty (30) days of the date of his Qualifying Termination). The payments provided payment by Employee, paid invoices for in each such monthly COBRA premium for which Employee seeks reimbursement pursuant to this Section 4(d7(b)(ii) and such reimbursement (to the extent required pursuant to this Section 7(b)(ii)) shall be made to Employee within thirty (30) days following the Company’s receipt of each such invoice. Employee understands that if he wishes to continue to obtain COBRA coverage after the one (1) year anniversary of the Termination Date, Employee will not later than receive reimbursement form the date Company for any portion of the release described above becomes binding and irrevocable under applicable law; provided, however, thatcost of such additional COBRA coverage. Notwithstanding anything set forth herein to the contrary, if and to the amounts extent that the Company may not provide such COBRA Assistance without incurring tax penalties or violating any requirement of such payments cannot be finally determined on or before such daythe law, the Company shall pay use its commercially reasonable best efforts to provide to Employee substantially similar assistance in an alternative manner provided that the Executive on such day an estimate, as determined in good faith by cost of doing so does not exceed the Company, of cost that the minimum amount of such payments to which Company would have incurred had the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate COBRA Assistance been provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Terminationmanner described above. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this SectionAs used herein, the Company following terms shall provide have the Executive with a written statement setting respective meaning set forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement).below:
Appears in 1 contract
Sources: Employment Agreement (TSR Inc)
Qualifying Termination. If the Executive's employment is terminated in In addition, if Executive experiences a Qualifying Termination during the Protection Periodthen, then the subject to Section 2(e) hereof and Executive’s continued compliance with his obligations under Sections 4 - 7 hereof, Executive shall be entitled to the following benefitsreceive:
(i) an amount in cash equal to the Base Salary, disregarding any reduction in salary giving rise to Good Reason, payable in substantially equal installments in accordance with the Company’s normal payroll procedures (but not less frequently than monthly) over the 12-month period following the Date of Termination (the “Salary Severance”); provided, that such Salary Severance payments shall commence on the first payroll date following the effective date of the Release, and amounts otherwise payable prior to such first payroll date shall be paid on the first payroll date without interest thereon;
(ii) a pro pro-rata portion (based on the number of calendar days that have elapsed before the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect ’s Annual Bonus for the fiscal calendar year in which the Date of Termination occurs; provided that, if had Executive remained employed through the payment date and based on the achievement of any applicable performance goals or objectives, pro-rated based on the number of days during such calendar year that Executive is entitled to receive was employed by the Company, payable in a retention/stay bonus in connection with single cash lump sum on the Change in Control that is payable with respect date on which annual bonuses are paid to the fiscal Company’s senior executives generally for such calendar year, but no later than March 15 of the calendar year following the calendar year in which the Executive's Qualifying Date of Termination occurs, the Executive shall receive the greater of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(iiiii) in lieu of any further salary payments subject to Executive’s valid and timely election to continue healthcare coverage under Code Section 4980B and the Executive for periods subsequent to the Date of Termination and other severance benefitsregulations thereunder, the Company shall pay to the Executive after such termination of employment, on a lump sum severance payment in monthly basis, an amount equal to two (2) times the sum monthly amount of the COBRA continuation coverage premium for such month, at the same level and cost to Executive as immediately preceding the Date of Termination, under the Company group health plan in which Executive participated immediately preceding the Date of Termination, less the amount of Executive’s portion of such monthly premium as in effect immediately preceding the Date of Termination, until the earlier of (A) 18 months after the higher Date of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control Termination; and (B) the higher of date on which Executive and his family have obtained other substantially similar healthcare coverage; provided, however, that if (x) the highest award paid any plan pursuant to which such benefits are provided is not, or payable ceases prior to the Executive pursuant to the Company's annual incentive plan for each expiration of the two measuring periods completed immediately before period of continuation coverage to be, exempt from the event or circumstance upon which the Notice application of Termination is based (determined without reference to any guaranteed annual bonus Code Section 409A under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) Treasury Regulation Section 1.409A-1(a)(5), or (y) the Executive's plan/target bonus opportunity for Company is otherwise unable to continue to cover Executive under its group health plans without incurring penalties (including without limitation, pursuant to Section 2716 of the fiscal year Public Health Service Act or the Patient Protection and Affordable Care Act), then, in which Executive's Qualifying Termination occurseither case, without giving effect each remaining premium payment under this sentence shall thereafter be paid to any reduction Executive in substantially equal monthly installments over the Executive's plan/target annual incentive bonus opportunity on period specified in subsections (A) and (B) (or after a Change in Control;
(iii) $10,000 for two years of tax and financial planning servicesthe remaining portion thereof);
(iv) full and immediate vesting of all optionsexcept as otherwise explicitly set forth in an individual award agreement evidencing a Time-Based Equity Award, awards of restricted stock and any other equity or equityeach outstanding Time-based awards Based Equity Award held by Executive as of the ExecutiveDate of Termination shall vest and, as applicable, become exercisable with respect to the number of shares underlying the Time-Based Equity Award that would otherwise have vested had Executive remained in continuous employment with the Company through the 12-month anniversary of the Date of Termination, and assuming that the vesting schedule applicable to such Time-Based Equity Award is in substantially equal monthly installments through the vesting period. All options Each outstanding Equity Award held by Executive as of the Executive will Date of Termination that is not a Time-Based Equity Award shall be exercisable for treated in accordance with the terms and conditions of the applicable period specified in award agreement and the relevant option agreement. To be eligible to receive benefits under this Section 4(d)Plan; and
(v) any outstanding stock options covering the Class A common stock of HoldCo held by Executive on the Date of Termination, the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after extent vested as of or in connection with the date of his Qualifying Termination). The payments provided for in this Section 4(d) , shall be made not later than remain exercisable until the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, three-year anniversary of the minimum amount Date of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986Termination, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than beyond the thirtieth (30th) day after the Date outside expiration date of Termination. If the estimated payments exceed the amount subsequently determined to be due, each such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)stock option.
Appears in 1 contract
Qualifying Termination. If Notwithstanding the Executive's employment is terminated in a Qualifying Termination during the Protection Period, then the Executive shall be entitled to the following benefitsforegoing:
(i) In the event of the Participant’s Qualifying Termination prior to the completion of the Performance Period applicable to an Award (and any associated Dividend Equivalent Amount), a pro rata portion of the RSUs which may be earned under the Award will become earned, with the actual number of earned RSUs determined as follows:
(A) with respect to Tranches 1 and 2, based on actual performance through the most recently completed fiscal quarter measured against the Performance Components as pro-rated based on the number of calendar days that have elapsed before fiscal quarters completed prior to the Executive's Termination Date relative to the total number of Terminationfiscal quarters in the Performance Period; and
(B) of the Executive's plan/target annual incentive award in effect for the fiscal year in which the Date of Termination occurs; provided that, if the Executive is entitled to receive a retention/stay bonus in connection with the Change in Control that is payable with respect to Tranche 3, based on actual performance through the fiscal year in which Termination Date measured against the Executive's Qualifying Performance Components based on actual performance through the Termination occursDate; provided, that any performance criteria based on the Executive achievement of company-wide strategic objectives or satisfaction of individual performance criteria shall receive the greater of the applicable stay be deemed achieved or retention bonus or the pro rata plan/satisfied at target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;level (as applicable); and
(ii) The number of earned RSUs calculated in lieu accordance with Section 3(b)(i) which become vested (and any associated Dividend Equivalent Amount) will be pro-rated based on the number of any further salary payments days in the applicable Performance Period completed prior to the Executive for periods subsequent to Termination Date, and such pro-rated number of earned RSUs under the Date of Termination Award shall be deemed vested in full and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive settled pursuant to Section 2(d), with the Company's annual incentive plan for each of “Vesting Date” meaning the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;Date.
(iii) $10,000 for two years In the event of tax the Participant’s Qualifying Termination after the completion of the Performance Period applicable to an Award, but prior to the last Vesting Date applicable to the earned RSUs granted under such Award, all such earned RSUs shall become vested as of the Termination Date. In such case, the number of earned RSUs (and financial planning services;any associated Dividend Equivalent Amount) under the Award shall be deemed vested in full and settled pursuant to Section 2(d), with the “Vesting Date” meaning the Termination Date.
(iv) full and immediate vesting The levels of all options, awards of restricted stock and achievement with respect to any other equity or equity-based awards held Performance Components shall be adjusted from time to time by the Executive. All options held by the Executive will be exercisable for the applicable period specified Committee as it deems equitable and necessary in the relevant option agreement. To be eligible to receive benefits under this Section 4(d)light of acquisitions, the Executive shall be required to execute dispositions and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on other transactions or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by extraordinary or one time events that impact the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)’s operations.
Appears in 1 contract
Sources: Restricted Stock Unit Agreement (Brixmor Property Group Inc.)
Qualifying Termination. If In the Executive's employment is terminated in event of a Qualifying Termination during the Protection PeriodTermination, then the Executive shall be entitled to receive the following benefits:
(i) Payment of all Accrued Obligations in a lump sum on the Date of Termination; provided, however, that any portion of the Accrued Obligations which consists of bonus, deferred compensation or incentive compensation shall be determined and paid in accordance with the terms of the relevant plan as applicable to the Executive.
(ii) Payment in a lump sum on the Date of Termination of a pro rata portion (based on the number of calendar days that have elapsed before the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect cash bonus for the fiscal year in which the Date of Termination occurs; provided that, if the Executive is entitled to receive a retention/stay bonus determined and paid in connection accordance with the Change in Control that is payable with respect terms of the then current annual bonus plan applicable to the fiscal year in which the Executive's Qualifying Termination occurs; provided, the Executive however, that such pro rata amount shall receive the greater of the applicable stay or retention bonus or not be less than the pro rata plan/target bonus provided herein, but amount determined using the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum greater of (A) the higher of (I) full year’s bonus to which Executive would have been entitled based on the Executive's annual base salary in effect immediately before Corporation’s performance for the event year, or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher greater of the Executive’s target bonus (x) for such year under such plan or (y) for the year in which the Effective Date of this Agreement occurs based on the annual bonus plan as in effect and applicable to Executive immediately prior to the Effective Date.
(iii) Payment in a lump sum on the Date of Termination of a salary replacement amount equal to three hundred percent (300%) of the Annual Base Salary required to be paid to Executive pursuant to Paragraph 3(a) above, or if greater, the rate of Annual Base Salary as in effect immediately prior to the Date of Termination.
(iv) Payment in a lump sum on the Date of Termination of a bonus replacement amount equal to three hundred percent (300%) of the highest award of the annual bonus paid or payable to the Executive pursuant for the three (3) years preceding the year in which the Date of Termination occurs or, if greater, the greater of (A) Executive’s target bonus for year in which the Date of Termination occurs or (B) Executive’s target bonus for the year in which the Effective Date occurs under the terms of the annual bonus plan in effect immediately prior to the Company's annual Effective Date.
(v) Payment in a lump sum on the Date of Termination of a long-term incentive plan for each compensation bonus replacement amount equal to three hundred percent (300%) of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program highest of the Company but taking into account the amount of any such annual long-term incentive compensation bonus that would have been paid or payable to the Executive based on actual performance but for any such guaranteeduring the three (3) or (y) years preceding the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying the Date of Termination occursoccurs or, without giving effect to any reduction in if greater, the highest of the Executive's plan/’s target annual long-term incentive bonus compensation award opportunity on for any award cycle ending during or after a Change the year in Control;which the Effective Date occurs.
(iiivi) $10,000 Payment in a lump sum on the Date of Termination of a retirement replacement amount equal to 300% of the sum of the Retirement Savings Plan and Executive Benefit Plan contributions made or credited by the Corporation for two years the benefit of tax and financial planning services;the Executive for the plan year of each such plan during which the Date of Termination occurs or, if greater, for the plan year of each such plan (or any successor or replacement plan) immediately preceding the plan year in which the Effective Date occurs.
(ivvii) full and immediate vesting Continuation, for a period of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A three (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d3) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day years after the Date of Termination. If , of the estimated payments exceed following employee benefits on terms at least as favorable to the amount subsequently determined Executive as those which would have been provided if the Executive’s employment had continued for that time pursuant to this Agreement, with the cost of such benefits to be due, such excess shall constitute a loan paid by the Company Corporation: medical and dental benefits, life and disability insurance, and executive physical examinations (“Corporation-Paid Coverage”). Corporation-Paid Coverage shall be paid directly by the Corporation to the applicable insurer and/or administrator when premiums for such coverage are due in accordance with the terms and conditions of the applicable insurance policy or administrative services agreement. Notwithstanding the foregoing, if the Executive is a “specified employee” (as described in Section 7 below) on the date of the Executive’s “separation from service” (as described in Section 7 below), continued coverage under the disability and life insurance plans shall be solely at the expense of the Executive for the period beginning on the date of the Executive’s separation and ending six (6) months thereafter. On the date six (6) months and one (1) day following his or her separation (or, in the event of his or her death, at such earlier time as provided in Section 7 below), the Corporation shall reimburse the Executive for the Corporation-Paid Coverage under the disability and life insurance plans portion of such expense in a lump sum cash payment. Thereafter, Corporation-Paid Coverage under the disability and life insurance plans shall be paid directly by the Corporation to the applicable insurer and/or administrator when premiums for such coverage are due in accordance with the terms and conditions of the applicable insurance policy or administrative services agreement. To the extent the Corporation is unable to provide comparable insurance for reasons other than cost; the Corporation may provide a lesser level or no coverage and compensate the Executive for the difference in coverage through a cash lump sum payment grossed up for taxes, payable on the fifth Date of Termination. This payment will be tied to the cost of an individual insurance policy if it were assumed to be available. Upon the expiration of the coverage provided under this paragraph (5thvii), the Executive and Executive’s dependents will be entitled to elect Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) business day after demand continuation coverage on the same basis as would be extended with respect to an employee whose employment terminated at the time of such expiration and for purposes of Title X of COBRA, the date of the “qualifying event” for the Executive and Executive’s dependents shall be the date upon which the Corporation-Paid Coverage terminates.
(viii) Outplacement services, at the expense of the Corporation, from a provider reasonably selected by the Company Executive; provided however, to the extent the outplacement services are taxable under the Internal Revenue Code, the expenses must be incurred before the last day of the second year following separation from service and the reimbursement must be made before the last day of the third year following separation from service.
(together with interest ix) Tax preparation services for the Executive’s taxable year in which the Date of Termination occurs, provided at the rate provided in Section 1274(b)(2)(B) expense of the Corporation, on the same basis as provided to Executive immediately prior to the Effective Date; provided however, to the extent the tax preparation services are taxable under the Internal Revenue Code). When payments are made under this Section, the Company shall provide expenses must be incurred before the Executive with a written statement setting forth last day of the manner in which such payments were calculated second year following separation from service and the basis for such calculations including, without limitation, any opinions or other advice reimbursement must be made before the Company has received last day of the third year following separation from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)service.
Appears in 1 contract
Sources: Transitional Compensation Agreement (Woodward Governor Co)
Qualifying Termination. If In the Executive's employment is terminated in event of a Qualifying Termination during the Protection PeriodTermination, then the Executive shall be entitled to receive the following benefits:
(i) Payment of all Accrued Obligations in a lump sum on the Date of Termination; provided, however, that any portion of the Accrued Obligations which consists of bonus, deferred compensation or incentive compensation shall be determined and paid in accordance with the terms of the relevant plan as applicable to the Executive.
(ii) Payment in a lump sum on the Date of Termination of a pro rata portion (based on the number of calendar days that have elapsed before the Executive's Date of Termination) of the Executive's plan/target annual incentive award in effect cash bonus for the fiscal year in which the Date of Termination occurs; provided that, if the Executive is entitled to receive a retention/stay bonus determined and paid in connection accordance with the Change in Control that is payable with respect terms of the then current annual bonus plan applicable to the fiscal year in which the Executive's Qualifying Termination occurs; provided, the Executive however, that such pro rata amount shall receive the greater of the applicable stay or retention bonus or not be less than the pro rata plan/target bonus provided herein, but amount determined using the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum greater of (A) the higher of (I) full year’s bonus to which Executive would have been entitled based on the Executive's annual base salary in effect immediately before Corporation’s performance for the event year, or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher greater of the Executive’s target bonus (x) for such year under such plan or (y) for the year in which the Effective Date of this Agreement occurs based on the annual bonus plan as in effect and applicable to Executive immediately prior to the Effective Date. 5
(iii) Payment in a lump sum on the Date of Termination of a salary replacement amount equal to three hundred percent (300%) of the Annual Base Salary required to be paid to Executive pursuant to Paragraph 3(a) above, or if greater, the rate of Annual Base Salary as in effect immediately prior to the Date of Termination.
(iv) Payment in a lump sum on the Date of Termination of a bonus replacement amount equal to three hundred percent (300%) of the highest award of the annual bonus paid or payable to the Executive pursuant for the three (3) years preceding the year in which the Date of Termination occurs or, if greater, the greater of (A) Executive’s target bonus for year in which the Date of Termination occurs or (B) Executive’s target bonus for the year in which the Effective Date occurs under the terms of the annual bonus plan in effect immediately prior to the Company's annual Effective Date.
(v) Payment in a lump sum on the Date of Termination of a long-term incentive plan for each compensation bonus replacement amount equal to three hundred percent (300%) of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program highest of the Company but taking into account the amount of any such annual long-term incentive compensation bonus that would have been paid or payable to the Executive based on actual performance but for any such guaranteeduring the three (3) or (y) years preceding the Executive's plan/target bonus opportunity for the fiscal year in which Executive's Qualifying the Date of Termination occursoccurs or, without giving effect to any reduction in if greater, the highest of the Executive's plan/’s target annual long-term incentive bonus compensation award opportunity on for any award cycle ending during or after a Change the year in Control;which the Effective Date occurs.
(iiivi) $10,000 Payment in a lump sum on the Date of Termination of a retirement replacement amount equal to 300% of the sum of the Retirement Savings Plan and Executive Benefit Plan contributions made or credited by the Corporation for two years the benefit of tax and financial planning services;the Executive for the plan year of each such plan during which the Date of Termination occurs or, if greater, for the plan year of each such plan (or any successor or replacement plan) immediately preceding the plan year in which the Effective Date occurs.
(ivvii) full and immediate vesting Continuation, for a period of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A three (which the Company shall deliver to the Executive promptly after the date of his Qualifying Termination). The payments provided for in this Section 4(d3) shall be made not later than the date the release described above becomes binding and irrevocable under applicable law; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code"), as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day years after the Date of Termination. If , of the estimated payments exceed following employee benefits on terms at least as favorable to the amount subsequently determined Executive as those which would have been provided if the Executive’s employment had continued for that time pursuant to this Agreement, with the cost of such benefits to be due, such excess shall constitute a loan paid by the Company Corporation: medical and dental benefits, life and disability insurance, and executive physical examinations (“Corporation-Paid Coverage”). Corporation-Paid Coverage shall be paid directly by the Corporation to the applicable insurer and/or administrator when premiums for such coverage are due in accordance with the terms and conditions of the applicable insurance policy or administrative services agreement. Notwithstanding the foregoing, if the Executive is a “specified employee” (as described in Section 7 below) on the date of the Executive’s “separation from service” (as described in Section 7 below), continued coverage under the disability and life insurance plans shall be solely at the expense of the Executive for the period beginning on the date of the Executive’s separation and ending six (6) months thereafter. On the date six (6) months and one (1) day following his or her separation (or, in the event of his or her death, at such earlier time as provided in Section 7 below), the Corporation shall reimburse the Executive for the Corporation-Paid Coverage under the disability and life insurance plans portion of such expense in a lump sum cash payment. Thereafter, Corporation-Paid Coverage under the disability and life insurance plans shall be paid directly by the Corporation to the applicable insurer and/or administrator when premiums for such coverage are due in accordance with the terms and conditions of the applicable insurance policy or administrative services agreement. To the extent the Corporation is unable to provide comparable insurance for reasons other than cost; the Corporation may provide a lesser level or no coverage and compensate the Executive for the difference in coverage through a cash lump sum payment grossed up for taxes, payable on the fifth Date of Termination. This payment will be tied to the cost of an individual insurance policy if it were assumed to be available. Upon the expiration of the coverage provided under this paragraph (5thvii), the Executive and Executive’s dependents will be entitled to elect Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) business day after demand continuation coverage on the same basis as would be extended with respect to an employee whose employment terminated at the time of such expiration and for purposes of Title X of COBRA, the date of the “qualifying event” for the Executive and Executive’s dependents shall be the date upon which the Corporation-Paid Coverage terminates. 6
(viii) Outplacement services, at the expense of the Corporation, from a provider reasonably selected by the Company Executive; provided however, to the extent the outplacement services are taxable under the Internal Revenue Code, the expenses must be incurred before the last day of the second year following separation from service and the reimbursement must be made before the last day of the third year following separation from service.
(together with interest ix) Tax preparation services for the Executive’s taxable year in which the Date of Termination occurs, provided at the rate provided in Section 1274(b)(2)(B) expense of the Corporation, on the same basis as provided to Executive immediately prior to the Effective Date; provided however, to the extent the tax preparation services are taxable under the Internal Revenue Code). When payments are made under this Section, the Company shall provide expenses must be incurred before the Executive with a written statement setting forth last day of the manner in which such payments were calculated second year following separation from service and the basis for such calculations including, without limitation, any opinions or other advice reimbursement must be made before the Company has received last day of the third year following separation from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement)service.
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Sources: Transitional Compensation Agreement (Woodward Governor Co)