Qualifying Termination. If, during the Term, 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 pay you (or cause to occur, as applicable) each of the following: (A) 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-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the 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 the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred; (C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 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 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”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the 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 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; (D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and (E) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.
Appears in 2 contracts
Sources: Employment Agreement (RealD Inc.), Employment Agreement (RealD Inc.)
Qualifying Termination. If, during the Term, you are no longer serving as the Chief Executive Officer of the The Company because either (1) the Company has terminated may terminate your employment as Chief Executive Officer CEO and President without “Cause” 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 (defined below)30) days advance written notice. If your employment as CEO and President is terminated due to a Qualifying Termination, then you will be eligible to receive the 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 made until on or (2) you resign as Chief Executive Officer for “Good Reason” (as defined below) (each, after the date of a “Qualifying Termination”)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 (or cause to occur, as applicable) each of with such payment occurring at the following:
(A) cash severance installment same time that the final bonus payment would be made if you had remained employed and taking into account any interim 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 belowpreviously made) (the “Cash SeveranceEarned Bonus”) 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);
(Bii) The Company shall pay you a pro-rated cash Performance Bonus, calculated as follows: the product pro rata portion of (xany bonus payable pursuant to Section 3(b) the Performance Bonus that would have been earned during above in respect of the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of the Company through the end of such fiscal year, which Performance BonusDate occurs, if any, shall be based on the 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 pro-rated for the number of days of the Company’s in such fiscal year in which you were employed over the number of total calendar days in such fiscal year (with such payment occurring at the same time that the bonus payment would be made if you had remained employed) (the “Pro Rata Bonus”);
(iii) 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 the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a discretionary bonus (as determined by the Board or a compensation committee of the Boardany reduction giving rise to Good Reason) for the portion of the year served through the Qualifying Termination Date. The pro-rated Performance Bonus and any such discretionary bonus described in for the Severance Period. The cash payments provided by this clause subpart (d)(i)(B) (collectively, a “Pro-Rated Bonus”iii) shall be paid to you no later than in substantially equal installments payable under regular payroll practices over the 15th day of the third month immediately following the fiscal year in which the Qualifying Severance Period, provided that once such payments commence, they will include any unpaid amounts accrued from your Termination has occurredDate;
(Civ) the The Company will shall continue to pay the cost 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 same extent that the Company was doing so immediately before the Qualifying 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 Severance Period in accordance with the Company’s group plans regular payroll practices) the same portion (if any) of the necessary premium that you were responsible to pay as of 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 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”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the 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 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;
(D) the portion of the “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 additionall cases, the coverage (and/or reimbursement payments) provided in this subpart shall immediately terminate if you are offered comparable coverage in connection with your employment by another employer; and
(v) For purposes of this Agreement, you may resign your employment from the event Company as CEO and President for “Good Reason” within ninety (90) days after the date that any portion one of the Equity Incentives vest based on continued employment on an annual 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 “cliff” 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). Such notice of your intention to resign for Good Reason must be provided to the date of any such annual or cliff vesting is outside Company within sixty (60) days of the twenty-four (24) month forward vesting period mentioned in initial existence of a Good Reason event. Failure to timely provide such written notice to the preceding sentence (each, a “Cliff Vesting Award”)Company or failure to timely resign your employment for Good Reason means that you will be deemed to have consented to and waived the Good Reason event. If the Company does timely cure or remedy the Good Reason event, then the portion of the Cliff Vesting Award that, but for such Qualifying Termination, would have 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 you may either resign your employment without Good Reason or you may continue to the extent any portion of the Equity Incentives are performance-based and/or are remain employed 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the Agreement. “Accrued ObligationsGood Reason” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.means:
Appears in 2 contracts
Sources: Employment Agreement (Research Solutions, Inc.), Employment Agreement (Research Solutions, Inc.)
Qualifying Termination. If, If your employment is terminated during the Term, you are no longer serving Term without Cause (as the Chief Executive Officer of defined below) by the Company because either (1) the Company has terminated your employment as Chief Executive Officer without “Cause” (defined below), or (2) by you resign as Chief Executive Officer for “Good Reason” (as defined below) (each, a “Qualifying Termination”), the Company shall pay you (or cause to occur, as applicable) each of the following:
(A) cash severance installment payments in an aggregate amount equal to two one hundred percent (200100%) of your annual Base Salary as in effect on your “Qualifying Termination Date” (as defined below) Date (“Cash Severance”) being paid in ten monthly pro-rata installments with the first installment of Cash Severance (in an amount equal to three months of Base Salary) 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 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 being paid on the second first anniversary of the Termination Date;
(B) a pro-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer President of Consumer Electronics of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the 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 the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 This pro-rated Performance Bonus and any such discretionary bonus described in this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 Qualifying Termination Date for eighteen twelve (1812) months after the Qualifying Termination Date provided that you are not an employee of the Company after the Qualifying 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”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the 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 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(ED) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.
Appears in 2 contracts
Sources: Employment Agreement (RealD Inc.), Employment Agreement (RealD Inc.)
Qualifying Termination. If, If your employment is terminated during the Term, you are no longer serving Term without Cause (as the Chief Executive Officer of defined below) by the Company because either (1) the Company has terminated your employment as Chief Executive Officer without “Cause” (defined below), or (2) by you resign as Chief Executive Officer for “Good Reason” (as defined below) (each, a “Qualifying Termination”), the Company shall pay you (or cause to occur, as applicable) each of the following:
(A) cash severance installment payments in an aggregate amount equal to two one hundred percent (200100%) of your annual Base Salary as in effect on your “Qualifying Termination Date” (as defined below) Date (“Cash Severance”) being paid in ten monthly pro-rata installments with the first installment of Cash Severance (in an amount equal to three months of Base Salary) 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 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 being paid on the second first anniversary of the Termination Date;
(B) a pro-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Financial Officer and Chief Operating Officer of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the 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 the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 This pro-rated Performance Bonus and any such discretionary bonus described in this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 Qualifying Termination Date for eighteen twelve (1812) months after the Qualifying Termination Date provided that you are not an employee of the Company after the Qualifying 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”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the 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 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(ED) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.
Appears in 2 contracts
Sources: Employment Agreement (RealD Inc.), Employment Agreement (RealD Inc.)
Qualifying Termination. IfIn the event of a Qualifying Termination, during the Term, then subject to you are no longer serving as the Chief Executive Officer of (i) continuing to comply with your obligations under your Employee Confidential Information and Inventions Assignment Agreement and (ii) delivering to the Company because either (and not revoking) an effective, general release of claims in a form and manner acceptable to the Company (the “Release”) with such Release becoming effective (and non-revocable) no later than sixty (60) days following your termination of employment (collectively, the “CIIAA/Release Requirements”):
(1) With respect to any Tranche for which the Company applicable 60-Day Price Milestone has terminated not been met prior to your employment as Chief Executive Officer without “Cause” 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 Performance Period (defined below), or (2) you resign as Chief Executive Officer for “Good Reason” (as defined below) (each, a “Qualifying Termination”)such measurement period, the Company shall pay you (or cause to occur, as applicable) each of the following:
(A) 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 SeverancePeriod”) with ). The effective date of any such vesting will be 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 later of the Termination Date;
applicable Certification Date for such Tranche or the effective date of the Release (B) a pro-rated cash Performance Bonussuch effective date of vesting, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the “Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the 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 the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 Vesting Date. The pro-rated Performance Bonus and any such discretionary bonus described in this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 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 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”). In addition, order to give effect to the extent that you are no longer an employee 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 Company after following: (x) if such Tranche does not vest in accordance with this Section 1(c)(iii)(1), the last day of the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the earlier of (x) eighteen (18) months after such Termination DatePeriod; or (y) you become eligible if such Tranche does vest in accordance with this Section 1(c)(iii)(1), the expiration of the term of the Option (as determined in accordance with Section 3 below).
(2) With respect to receive group health coverage from another employer. You agree any Tranche for which the applicable 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) 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 employersatisfy the CIIAA/Release Requirements, such Tranche (x) will vest as of the effective date of the Release and (y) will not terminate until the expiration of the term of the Option (as determined in accordance with Section 3 below); and or (ii) that you may not increase the number of your designated dependents, if any, during this time unless you do so at not satisfy the CIIAA/Release Requirements and 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 Continuous Service terminates upon such Qualifying Termination, would have vested from the date of grant of the Cliff Vesting Award through the twenty-four (24) month period following such portion will terminate automatically upon 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 DateTermination. If and In order to give effect to the extent any portion intent 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”this Section 1(c)(iii)(2), defined belowif this Section 1(c)(iii)(2) (collectively, the “Performance Awards”)is applicable, then such Equity Incentives shall vest portion will remain outstanding and become exercisable based on 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) shall be exercisable by you will not terminate 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 scheduled expiration latest potential effective date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsectionsRelease.
Appears in 2 contracts
Sources: Modification of Offer Letter Agreement (Fastly, Inc.), Modification of Offer Letter Agreement (Fastly, Inc.)
Qualifying Termination. If, If your employment is terminated during the Term, you are no longer serving Term without Cause (as the Chief Executive Officer of defined below) by the Company because either (1) the Company has terminated your employment as Chief Executive Officer without “Cause” (defined below), or (2) by you resign as Chief Executive Officer for “Good Reason” (as defined below) (each, a “Qualifying Termination”), the Company shall pay you (or cause to occur, as applicable) each of the following:
(A) cash severance installment payments in an aggregate amount equal to two one hundred percent (200100%) of your annual Base Salary as in effect on your “Qualifying Termination Date” (as defined below) Date (“Cash Severance”) being paid in ten monthly pro-rata installments with the first installment of Cash Severance (in an amount equal to three months of Base Salary) 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 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 being paid on the second first anniversary of the Termination Date;
(B) a pro-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer President of Worldwide Cinema of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the 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 the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 This pro-rated Performance Bonus and any such discretionary bonus described in this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 Qualifying Termination Date for eighteen twelve (1812) months after the Qualifying Termination Date provided that you are not an employee of the Company after the Qualifying 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”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the 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 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(ED) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.
Appears in 2 contracts
Sources: Employment Agreement (RealD Inc.), Employment Agreement (RealD Inc.)
Qualifying Termination. If, If your employment is terminated during the Term, you are no longer serving Term without Cause (as the Chief Executive Officer of defined below) by the Company because either (1) the Company has terminated your employment as Chief Executive Officer without “Cause” (defined below), or (2) by you resign as Chief Executive Officer for “Good Reason” (as defined below) (each, a “Qualifying Termination”), the Company shall pay you (or cause to occur, as applicable) each of the following:
(A) cash severance installment payments in an aggregate amount equal to two one hundred percent (200100%) of your annual Base Salary as in effect on your “Qualifying Termination Date” (as defined below) Date (“Cash Severance”) being paid in ten monthly pro-rata installments with the first installment of Cash Severance (in an amount equal to three months of Base Salary) 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 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 being paid on the second first anniversary of the Termination Date;
(B) a pro-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer President of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the 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 the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 This pro-rated Performance Bonus and any such discretionary bonus described in this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 Qualifying Termination Date for eighteen twelve (1812) months after the Qualifying Termination Date provided that you are not an employee of the Company after the Qualifying 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”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the 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 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(ED) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.
Appears in 2 contracts
Sources: Employment Agreement (RealD Inc.), Employment Agreement (RealD Inc.)
Qualifying Termination. IfSubject to Section 4(a)(ii), if during the Term, 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, Term there is a “Qualifying Termination”), the Company then you shall pay you (or cause be eligible to occur, as applicable) receive each of the following:
(A) cash severance installment payments (“Cash Severance”) in an aggregate amount equal to two hundred fifty percent (20050%) of your annual Base Salary as in effect on your “Qualifying Termination Date” (as defined Date being paid, subject to Section 14 below) (“Cash Severance”) , in five monthly pro-rata installments with the first installment of Cash Severance (in an amount equal to three months of Base Salary) being paid on the 90th 60th day after your Separation from Service from the Termination Date Company 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 being paid on the second six month anniversary of the Termination Date;; and
(B) a pro-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on to the extent to which the Company achieved the MBO Goals (or the performance standards set forth in any successor incentive plan) during such fiscal yearpermitted by applicable laws without incurring statutory penalties, multiplied by (y) a fraction, the numerator of which is the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying Termination Date) for all group employee benefit health benefits coverage continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) to the same extent provided by the Company’s group health plans immediately before the Qualifying Termination Date (“COBRA Benefits”) for eighteen six (186) months after the Qualifying Termination Date provided that you are not an employee of the Company after the Qualifying Termination Date, or until you become eligible for group health 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 will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the earlier of (x) eighteen (18) months after such Termination Date; or (y) you become eligible to receive group health coverage from another employercoverage. You agree (i) at any time either before or during the period of time you are receiving benefits under this subsection (C)B) or section 4(a)(ii)(b) below, to inform the Company promptly in writing if you become eligible to receive group health coverage from another employeremployer and to respond to any Company inquiries confirming that you did not become eligible for other coverage; 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(EC) any equity compensation awards (including the “Accrued Obligations” Option (defined belowif granted)) previously granted to you (but excluding any portion of any performance awards which are/were forfeited due to failure to achieve the requisite performance objectives) which are outstanding and unvested as of the Termination Date. For avoidance of doubt, the payments Date shall become incrementally vested and benefits that may be provided under Sections 3(d)(iexercisable on an accelerated basis as if your Termination Date occurred six (6) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsectionsmonths later.
Appears in 1 contract
Qualifying Termination. If, at any time during the TermVesting Period, you are no longer serving the Participant ceases to be employed by the Corporation or its Subsidiaries (the date of such termination of employment is referred to as the Chief Executive Officer Participant’s “Severance Date”) as a result of the Company because either (1i) the Company has terminated your employment as Chief Executive Officer without “Cause” (defined below)Participant’s death or Disability, or (2ii) you resign as Chief Executive Officer a termination of employment by the Corporation or one of its Subsidiaries without Cause or by Participant for “Good Reason” Reason (each as defined below) (each, a “Qualifying Termination”herein), then, subject to the Company shall pay you (or cause to occur, as applicable) each of following paragraph and the following:
(A) cash severance installment payments release requirement set forth 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 paragraph of the Termination Date;
(B) a pro-rated cash Performance Bonusthis Section 8(a), calculated as follows: the product of (x) the Performance Bonus that Units will remain outstanding during the remainder of the Vesting Period and will remain subject to Section 3, and (y) the Participant will be entitled to the number of Performance Units the Participant would have been earned during the fiscal year received in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of the Company through the end of such fiscal year, which Performance Bonusaccordance with Section 3, if any, shall be based had the Participant remained employed until the end of the Vesting Period. In the event Participant’s termination of service is due to a “Qualifying Retirement” during the Performance Period (as defined in the Corporation’s Retirement Policy as in effect on the extent Award Date), the Performance Units will be subject to which the Company achieved the MBO Goals (or the performance standards pro rata vesting treatment set forth in any successor incentive planthe Retirement Policy (and the requirements set forth therein). In the event that the Participant’s employment terminates in the circumstances described in the preceding paragraph (including a Qualifying Retirement) during and the Severance Date occurs on or before the last day of the second year of the Performance Period and on or before the Severance Date, or after the Severance Date and before the last day of the second year of the Performance Period, an Interim Date (as defined in Exhibit A) has been or is established with respect to Peer Group I (as such fiscal year, multiplied by (y) a fractionterm is defined in Exhibit A), the numerator of which is Performance Period with respect to Peer Group I will end on such Interim Date (in the number of days of the Company’s fiscal year event there has been more than one Interim Date on or prior to the Qualifying Termination Severance Date, the most recent Interim Date on or prior to the Severance Date; and in the denominator of which is 365 days. You event that there has been an Interim Date on or prior to the Severance Date, any new Interim Date after the Severance Date shall also be eligible disregarded) and there will be no new or additional measurement period with respect to Peer Group I after such Interim Date as otherwise provided for a discretionary bonus (in Exhibit A. In such circumstances, the determination as determined to whether the Corporation has attained the performance goals set forth in Exhibit A with respect to Peer Group I for the Performance Period shall be made by the Board or a compensation committee of the Board) for the portion Committee based solely on performance through such applicable Interim Date, such determination to be made no later than March 15 of the year served through that follows the Qualifying Termination later of the Severance Date or the applicable Interim Date as to Peer Group I (such determination to be the Committee Determination as to Peer Group I). In such circumstances, any Performance Units corresponding to Peer Group I that are not vested on the date of such Committee Determination (after giving effect to such Committee Determination) shall terminate. No additional Performance Units will vest pursuant to Section 9(b) or Exhibit A with respect to performance after, or a Change in Control Event that occurs after, the applicable Interim Date. The pro-rated Performance Bonus Any benefit to the Participant pursuant to the preceding paragraphs of this Section 8 (including in connection with a Qualifying Retirement, but other than in connection with the Participant’s death) is subject to the condition that (i) the Participant has fully executed a valid and any effective release (in the form attached to the Severance Plan or, if such discretionary bonus described release is executed on or after a Change in this clause (d)(i)(B) (collectivelyControl Event, a “Pro-Rated Bonus”) in the form attached to the CIC Severance Plan, in each case for terminations governed by such severance plan, or in such other form as the Committee may reasonably require in the circumstances, including as set forth in the Retirement Policy, which other form shall be paid substantially similar to you the form attached to the Severance Plan or the CIC Severance Plan, as the case may be, and in any case that would otherwise apply in the circumstances but with such changes as the Committee may determine to be required or reasonably advisable in order to make the release enforceable and otherwise compliant with applicable laws), (ii) such executed release is delivered by the Participant to the Corporation so that it is received by the Corporation in the time period specified below, and (iii) such release is not revoked by the Participant (pursuant to any revocation rights afforded by applicable law). In order to satisfy the requirements of this paragraph, the Participant’s release referred to in the preceding sentence must be delivered by the Participant to the Corporation so that it is received by the Corporation no later than twenty-five (25) calendar days after the 15th day Participant’s Severance Date (or such later date as may be required for an enforceable release of the third month immediately following Participant’s claims under the fiscal year United States Age Discrimination in Employment Act of 1967, as amended (“ADEA”), to the extent the ADEA is applicable in the circumstances, in which case the Qualifying Termination has occurred;
Participant will be provided with either twenty-one (C21) or forty-five (45) days, depending on the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 Qualifying Termination Date for eighteen (18) months after the Qualifying Termination Date provided that you are not an employee circumstances of the Company after termination, to consider the Qualifying 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”release). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent Corporation may require that the Company was doing so immediately before Participant’s release be executed no earlier than the 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 Participant’s Severance Date. If you remain as an employee of the Company after period during which the Participant is permitted to consider the release in accordance with this paragraph begins in one calendar year and ends in a Qualifying Termination Datesecond calendar year, 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 Qualifying Termination) and shall be paid until the earlier payment of (x) eighteen (18) months after such Termination Date; or (y) you become any Stock Units that remain eligible to receive group health coverage from another employer. You agree (i) at any time either before vest 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) shall be exercisable by you until the earliest to occur of (x) twelve (12) months following the date on which the Equity Incentives vest payable pursuant to the terms preceding paragraphs of this clause (D); (y) the scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below Section 8 shall not be provided more made earlier than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsectionsthe second calendar year.
Appears in 1 contract
Sources: 3 Year Performance Based Restricted Stock Unit Agreement (Healthpeak Properties, Inc.)
Qualifying Termination. If, during the Term, 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 pay you (or cause to occur, as applicable) each of the following:
(A) 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-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the 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 the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 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 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”) ; provided, however, if the Company determines, in its sole discretion, that it cannot pay for the COBRA Benefits without potentially incurring financial cost or penalties under applicable law (including without limitation, Section 2716 of the Public Health Service Act), then the Company shall, in lieu thereof, pay you a taxable cash amount that it would otherwise have paid for the COBRA Benefits, in monthly installments over the same time period, which payment shall be made regardless of whether you elect health care continuation coverage. In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ March 25, 2015 continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the 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 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;
(D) the portion of the stock options granted to you prior to the Qualifying Termination Date (“Options” (defined below), including ”) and any additional stock options and other equity compensation incentives granted to you during prior to the Term Qualifying Termination Date (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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections. For avoidance of doubt, any Cash Severance benefits provided under Sections 3(d)(i) above or 3(d)(ii) below shall be calculated prior to giving effect to any reduction in Base Salary or target Performance Bonus that would give rise to your right to terminate for Good Reason. Additionally, any Cash Severance benefits provided under Sections 3(d)(i) above or 3(d)(ii) below shall be calculated prior to giving effect to any elected or agreed upon temporary forbearance from payment of the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ March 25, 2015 Page 5 Base Salary or Performance Bonus.
Appears in 1 contract
Sources: Employment Agreement (RealD Inc.)
Qualifying Termination. If, during the Term, you are no longer serving as the Chief Executive Officer of the Company because either If (1) the Company has terminated your terminates the Executive’s employment as Chief Executive Officer without “for any reason other than for Cause” (defined below), Disability or death or (2) you resign as Chief the Executive Officer terminates employment for “Good Reason” (as defined below) 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 2014 Stock Option and Equity Compensation Plan of Columbia Banking System, Inc.):
(i) the Company shall pay you to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of (or cause to occur1) the Executive’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 applicable) each of the following:
(A) cash severance installment payments Date of Termination that were incurred by the Executive prior to the Date of Termination 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”) accordance with the first installment of Cash Severance applicable Company policy, and (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-rated cash Performance Bonus, calculated as follows: the product of (x3) the Performance Executive’s Annual Bonus that would have been earned during for the fiscal year immediately preceding the fiscal year in which the Qualifying Date of Termination occurredoccurs if such bonus has been determined but not paid as of the Date of Termination (the sum of the amounts described in clauses (1) through (3) shall be hereinafter referred to as the “Accrued Obligations”);
(ii) subject to Section 4(e), assuming the Company shall pay to the Executive a cash severance benefit in an amount equal to two times the 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 Termination; provided that the Qualifying first payment shall be made on the 60th day following the Date of Termination had not occurred and that you remained as Chief Executive Officer of shall include all installments otherwise payable within such 60-day period;
(iii) subject to Section 4(e), the Company through shall pay to the end Executive in a lump sum in cash a pro rata portion of such fiscal year, any Annual Bonus earned for the year in which Performance Bonus, if any, shall be the Date of Termination occurs (with proration determined based on the 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 the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 months in this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurredExecutive is employed with the Company). The Company shall pay the 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);
(Civ) 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 awards within 60 days following vesting subject to compliance with Section 409A of the Code. For illustrative purposes only, if the Executive holds 96 restricted shares that are scheduled to vest over a four-year period (the “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), for the 24-month period immediately following the Date of Termination, the Company will shall continue the health and welfare benefits provided to pay the Executive and his dependents at the levels provided to active employees; provided that, if the Company determines that such continuation is not feasible without the payment of taxes or penalties or is not permissible under applicable law, the Company and the Executive shall cooperate in good faith to modify this section in such a manner that does not materially increase the cost (to the same extent that Company (collectively, the Company was doing so immediately before the Qualifying Termination Date) for all group employee benefit coverage continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 “Welfare Benefits”); and
(“COBRA”vi) to the same extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided by or that 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 Executive is eligible to receive under any plan, program, policy, practice, contract or agreement of the Company after and its affiliated companies through the Qualifying Date of Termination Date, or until you become eligible for group insurance (such other amounts and benefits from another employer, whichever occurs first, provided that you timely elect COBRA coverage (“COBRA Benefits”). In addition, shall be hereinafter referred to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying Termination Date) of all other benefits being provided to you immediately prior to the Qualifying Termination Date (as 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 DateAs used in this Agreement, the benefits provided by the Company to you term “affiliated companies” shall include any company controlled by, controlling or 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 common control with the Company which continued after the Qualifying Termination) and shall be paid until the 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 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.
Appears in 1 contract
Qualifying Termination. IfSubject to Section 4(a)(ii), if during the Term, 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, Term there is a “Qualifying Termination”), the Company then you shall pay you (or cause be eligible to occur, as applicable) receive each of the following:
(A) cash severance installment payments (“Cash Severance”) in an aggregate amount equal to two hundred fifty percent (20050%) of your annual Base Salary as in effect on your “Qualifying Termination Date” (as defined Date being paid, subject to Section 14 below) (“Cash Severance”) , in five monthly pro-rata installments with the first installment of Cash Severance (in an amount equal to three months of Base Salary) being paid on the 90th 60th day after your Separation from Service from the Termination Date Company 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 being paid on the second six month anniversary of the Termination Date;
(B) a pro-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on to the extent to which the Company achieved the MBO Goals (or the performance standards set forth in any successor incentive plan) during such fiscal yearpermitted by applicable laws without incurring statutory penalties, multiplied by (y) a fraction, the numerator of which is the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying Termination Date) for all group employee benefit health benefits coverage continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) to the same extent provided by the Company’s group health plans immediately before the Qualifying Termination Date (“COBRA Benefits”) for eighteen six (186) months after the Qualifying Termination Date provided that you are not an employee of the Company after the Qualifying Termination Date, or until you become eligible for group health 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 will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the earlier of (x) eighteen (18) months after such Termination Date; or (y) you become eligible to receive group health coverage from another employercoverage. You agree (i) at any time either before or during the period of time you are receiving benefits under this subsection (C)B) or section 4(a)(ii)(b) below, to inform the Company promptly in writing if you become eligible to receive group health coverage from another employeremployer and to respond to any Company inquiries confirming that you did not become eligible for other coverage; 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
(DC) the portion of the “Options” (defined below), including any additional stock options and other equity compensation incentives awards (including the Option (if granted)) previously granted to you during (but excluding any portion of any performance awards which are/were forfeited due to failure to achieve the Term (collectively, requisite performance objectives) which are outstanding and unvested as of the “Equity Incentives”), Termination Date shall become incrementally vested and exercisable on an accelerated basis in an amount equal to the number that would have vested (assuming at the next vesting date 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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 occurred after the Qualifying Termination Date and a measurement of the performance standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.
Appears in 1 contract
Qualifying Termination. If, If your employment is terminated during the Term, you are no longer serving Term without Cause (as the Chief Executive Officer of defined below) by the Company because either (1) the Company has terminated your employment as Chief Executive Officer without “Cause” (defined below), or (2) by you resign as Chief Executive Officer for “Good Reason” (as defined below) (each, a “Qualifying Termination”), the Company shall pay you (or cause to occur, as applicable) each of the following:
(A) cash severance installment payments in an aggregate amount equal to two one hundred percent (200100%) of your annual Base Salary as in effect on your “Qualifying Termination Date” (as defined below) Date (“Cash Severance”) being paid in ten monthly pro-rata installments with the first installment of Cash Severance (in an amount equal to three months of Base Salary) 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 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 being paid on the second first anniversary of the Termination Date;
(B) a pro-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of the Company Managing Director through the end of such fiscal year, which Performance Bonus, if any, shall be based on the 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 the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 This pro-rated Performance Bonus and any such discretionary bonus described in this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying Termination Date) for all group employee benefit coverage continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) or any comparable UK law, to the same extent provided by the Company’s group plans immediately before the Qualifying Termination Date for eighteen twelve (1812) months after the Qualifying Termination Date provided that you are not an employee of the Company after the Qualifying Termination Date, or until you become eligible for group insurance benefits from another employer, whichever occurs first, provided that you timely elect COBRA coverage or coverage under any comparable UK law (in either case, “COBRA Benefits”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the 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 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(ED) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.
Appears in 1 contract
Sources: Employment Agreement (RealD Inc.)
Qualifying Termination. If, during the Term, you are no longer serving as the Chief Executive Officer of the Company because either If (1) the Company has terminated your terminates the Executive’s employment as Chief Executive Officer without “for any reason other than for Cause” (defined below), Disability or death or (2) you resign as Chief the Executive Officer terminates employment for “Good Reason” (as defined below) 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 2018 Equity Incentive Plan of Columbia Banking System, Inc. and including, for the avoidance of doubt, the Merger):
(i) the Company shall pay you to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of (or cause to occur1) the Executive’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 applicable) each of the following:
(A) cash severance installment payments Date of Termination that were incurred by the Executive prior to the Date of Termination 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”) accordance with the first installment of Cash Severance applicable Company policy, and (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-rated cash Performance Bonus, calculated as follows: the product of (x3) the Performance Executive’s Annual Bonus that would have been earned during for the fiscal year immediately preceding the fiscal year in which the Qualifying Date of Termination occurredoccurs if such bonus has been determined but not paid as of the Date of Termination (the sum of the amounts described in clauses (1) through (3) shall be hereinafter referred to as the “Accrued Obligations”);
(ii) subject to Section 4(e), assuming the Company shall pay to the Executive a cash severance benefit in an amount equal to two times the 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 Termination; provided that the Qualifying first payment shall be made on the 60th day following the Date of Termination had not occurred and that you remained as Chief Executive Officer of shall include all installments otherwise payable within such 60-day period;
(iii) subject to Section 4(e), the Company through shall pay to the end Executive in a lump sum in cash a pro rata portion of such fiscal year, any Annual Bonus earned for the year in which Performance Bonus, if any, shall be the Date of Termination occurs (with proration determined based on the 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 the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 months in this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurredExecutive is employed with the Company). The Company shall pay the 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);
(Civ) 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 awards within 60 days following vesting subject to compliance with Section 409A of the Code. For illustrative purposes only, if the Executive holds 96 restricted shares that are scheduled to vest over a four-year period (the “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), for the 24-month period immediately following the Date of Termination, the Company will shall continue the health and welfare benefits 4844-0817-3566 v.6 provided to pay the Executive and his dependents at the levels provided to active employees; provided that, if the Company determines that such continuation is not feasible without the payment of taxes or penalties or is not permissible under applicable law, the Company and the Executive shall cooperate in good faith to modify this section in such a manner that does not materially increase the cost (to the same extent that Company (collectively, the Company was doing so immediately before the Qualifying Termination Date) for all group employee benefit coverage continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 “Welfare Benefits”); and
(“COBRA”vi) to the same extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided by or that 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 Executive is eligible to receive under any plan, program, policy, practice, contract or agreement of the Company after and its affiliated companies through the Qualifying Date of Termination Date, or until you become eligible for group insurance (such other amounts and benefits from another employer, whichever occurs first, provided that you timely elect COBRA coverage (“COBRA Benefits”). In addition, shall be hereinafter referred to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying Termination Date) of all other benefits being provided to you immediately prior to the Qualifying Termination Date (as 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 DateAs used in this Agreement, the benefits provided by the Company to you term “affiliated companies” shall include any company controlled by, controlling or 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 common control with the Company which continued after the Qualifying Termination) and shall be paid until the 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 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.
Appears in 1 contract
Sources: Employment Agreement (Columbia Banking System, Inc.)
Qualifying Termination. If, If during the Term, you are no longer serving Employment Period the Executive suffers a “separation from service” (as the Chief Executive Officer of the Company defined in Treasury Regulation §1.409A-1(h)) because his employment is terminated either (1) by the Company has terminated your employment as Chief Executive Officer without “Cause” (defined below)Corporation other than for Cause or, Disability or by reason of the Executive’s death or (2) you resign as Chief by the Executive Officer for “Good Reason” (as defined below) Reason (each, a “Qualifying Termination”), the Company shall pay you (or cause to occurthen, as applicable) each of the following:
(A) 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 date that is six months after the Date of Termination Date such that the last installment is paid on the second anniversary of the Termination Date;
(B) a pro-rated cash Performance Bonusor, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of the Company through if earlier than the end of such fiscal yearsix-month period, which Performance Bonus, if any, shall be based on within 30 days following the extent to which date of 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 fractionExecutive’s death), the numerator of which is the number of days of the Company’s fiscal year prior Corporation will pay to the Qualifying Termination Date and Executive (except as provided below) as compensation for services rendered to the denominator of which is 365 days. You shall also be eligible for a 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 this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;Corporation:
(C1) the Company will continue to pay the cost (A lump-sum cash amount equal to the same extent that the Company was doing so immediately before the Qualifying 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 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 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”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the 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 sum of:
(i) the Executive’s unpaid Base Salary through the Date of Termination (at the rate in effect on the Date of Termination or, if higher, at the highest rate in effect at any time either before or during within the 90-day period of time you are receiving benefits under this subsection (Cpreceding the Effective Date), to inform the Company promptly in writing if you become eligible to receive group health coverage from another employer; and plus
(ii) that you may not increase portion of the target Annual Bonus under the Corporation’s incentive compensation plans or any similar plans or programs then in effect determined by multiplying the target Annual Bonus by the fraction arrived at by dividing the number of your designated dependents, if any, full weeks for which the Executive was employed during this time unless you do so at your own expense. The period the Fiscal Year in which his Date of such COBRA Benefits shall be considered part of your COBRA coverage entitlement period, and may, for tax purposes, be considered income to you;Termination occurred by 52; plus
(Diii) the a pro rata portion of the target payments under the Corporation’s long-term performance bonus (“Options” (defined below)LTI”) plans, including or any additional stock options similar plans or programs then in effect, adopted with respect to the current Fiscal Year and other equity compensation incentives granted with respect to you during each of the Term (collectivelyimmediately two preceding Fiscal Years. In each case, 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 that any pro rata portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and LTI payment shall be determined by dividing the date number of any such annual or cliff vesting is outside full weeks for which the Executive was employed since the beginning of the twenty-four Fiscal Year with respect to which the relevant LTI plan was adopted to his Date of Termination by 156; plus (24iv) month forward vesting period mentioned any unpaid vacation under the Corporation’s vacation policy in effect at the preceding sentence Date of Termination (eachor, a “Cliff Vesting Award”)if more favorable to the Executive, then the portion under any vacation policy of the Cliff Vesting Award that, but Corporation in effect at any time within the 90-day period preceding the Effective Date).
(2) A lump-sum cash amount equal to the sum of:
(i) threetwo times the Executive’s highest annual rate of Base Salary in effect during the 12-month period prior to the Date of Termination; plus
(ii) threetwo times the Executive’s target annual bonus in effect for such Qualifying Termination, would have vested from the date Fiscal Year in which the Change of grant Control occurs; plus (iii) three times the target LTI payment for the Fiscal Year in which the Change of Control occurs. Any amount paid to the Executive pursuant to this Section 7(d)(2) shall be offset by any other amount of severance relating to salary or bonus continuation to be received by the Executive upon termination 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 Executive’s employment under any other severance plan, policy, employment agreement or arrangement of the vesting period, shall automatically vest and become exercisable Corporation.
(3) A lump sum cash amount equal to the excess of (i) the actuarial present value as of the Qualifying Date of Termination Date. If of the benefits that would be accrued under the FedEx Corporation Employees’ Pension Plan and the FedEx Corporation Retirement Parity Pension Plan determined by assuming that (A) the Executive has earned an additional 36 months of the Executive’s highest annual rate of Base Salary in effect during the 12-month period prior to the extent any portion Date of Termination and target annual bonus in effect for the Fiscal Year in which the Change of Control occurs and (B) the Executive is credited with an additional 36 months of age and service under such plans, over (ii) the actuarial present value of the Equity Incentives are performance-based and/or are subject to any vesting conditions other than actual benefits accrued by the passage Executive as of time (including the Date of Termination under such plans without limitation the “Performance Options”, defined below) (collectively, the “Performance Awards”), then such Equity Incentives shall vest and become exercisable based on the terms assumptions set forth in clauses (A) and (B) of this Section (7)(d)(3).
(4) A lump sum cash amount equal to the applicable Performance Award Agreement, it being understood that the Company shall structure the Performance Awards to include the concept of twenty-four Corporation’s cost (24) month forward vesting with respect to time-based vesting requirements after the Qualifying Termination Date and a measurement of the performance standard determined as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)Termination) shall be exercisable by you until the earliest to occur of (x) twelve (12) 36 months following the date on which the Equity Incentives vest pursuant to the terms of this clause (D); (y) the scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.coverage under
Appears in 1 contract
Qualifying Termination. If, during the Term, you are no longer serving as Executive incurs a Qualifying Termination, then subject to and conditioned upon Executive’s timely execution of a settlement agreement in a form prescribed by the Chief Company, which shall be in full and final settlement of all and any rights and claims which the Executive Officer of has or may have against the Company because either 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 (1) including both contractual and statutory employment claims in 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 belowUK) (eachthe “Release”) which becomes effective as soon as reasonably practicable following the Termination Date, a “Qualifying Termination”)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 pay you or provide to Executive the following (or cause in addition to occurthe Accrued Obligations):
(i) The Company shall continue to pay to Executive amounts equal to Executive’s then-current Base Salary (which, as applicablein 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) each (the “Continued Salary Severance”) during the period commencing on the Termination Date and ending on the last day of the following:then-current Term (the “Severance Period”). The Company shall pay the Continued Salary Severance in substantially equal installments in accordance with the Company’s customary payroll practices during the Severance Period; provided, that no such payments shall be made prior to the date on which the Release becomes effective and irrevocable and, if the aggregate period during which Executive is entitled to 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 lump sum payment (the “Lump Sum Severance”) equal to (A) cash severance installment payments in an aggregate amount equal to two hundred percent (200%2) of your annual Base Salary as in effect on your “Qualifying Termination Date” times the Average Compensation less (as defined belowB) (“Cash Severance”) with the first installment of Cash Severance (in an amount equal to three months of Base Salary) being paid the Continued Salary Severance, payable in a single lump sum cash payment on the 90th day after First Payroll Date. For purposes of this Agreement, “Average Compensation” is 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 average of the Termination Date;
(B) a pro-rated cash Performance Bonus, calculated as follows: the product sum of Executive’s actual (x) EU-DOCS\45887982.1 Base Salary (which, in the Performance Bonus that would have been earned during 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 Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the 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 the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 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 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”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the 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 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the “Accrued Obligations” (defined below) as of the Termination Dateoccurs. For the avoidance of doubt, in no event shall the payments and benefits that may be provided under Sections 3(d)(isum of the Lump Sum Severance plus the Continued Salary Severance exceed two (2) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsectionstimes the Average Compensation.
Appears in 1 contract
Sources: Employment Agreement (Kennedy-Wilson Holdings, Inc.)
Qualifying Termination. If, If your employment is terminated during the Term, you are no longer serving Term without Cause (as the Chief Executive Officer of defined below) by the Company because either (1) the Company has terminated your employment as Chief Executive Officer without “Cause” (defined below), or (2) by you resign as Chief Executive Officer for “Good Reason” (as defined below) (each, a “Qualifying Termination”), the Company shall pay you (or cause to occur, as applicable) occur each of the following:
(A) pay you cash severance installment payments in an aggregate amount equal to two one hundred percent (200100%) of your annual Base Salary as in effect on your “Qualifying Termination Date” (as defined below) Date (“Cash Severance”) being paid in ten monthly pro-rata installments with the first installment of Cash Severance (in an amount equal to three months of Base Salary) being paid on the 90th day after your “separation from service” (within the meaning of Internal Revenue Code (“Code”) Section 409A (“Section 409A”)) from the Company (“Termination Date 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 being paid on the second first anniversary of the Termination Date;
(B) pay you a pro-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer Vice President, Global Operations of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the extent to which the Company achieved the MBO Goals (or the performance standards set forth in the 2010 Management Incentive Plan or any successor incentive plan) during such fiscal year, multiplied by (y) a fraction, the numerator of which is the number of days of the Company’s fiscal year prior to the Qualifying Termination ▇▇▇ ▇▇▇▇▇▇ March 25, 2015 Date and the denominator of which is 365 days. You shall also be eligible for a 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 This pro-rated Performance Bonus and any such discretionary bonus described in this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(C) accelerate the vesting of your restricted stock units and other time-based vesting equity awards, if any, in accordance with their applicable vesting schedules, as if you had provided an additional twelve (12) months of service to the Company as its Executive Vice President, Global Operations as of the Termination Date;
(D) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 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 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”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the 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 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; provided, and mayhowever, if the Company determines, in its sole discretion, that it cannot pay for tax purposesthe COBRA Benefits without potentially incurring financial cost or penalties under applicable law (including without limitation, be considered income to you;
(D) the portion Section 2716 of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual or cliff vesting is outside of the twenty-four (24) month forward vesting period mentioned in the preceding sentence (each, a “Cliff Vesting Award”Public Health Service Act), then the portion of Company shall, in lieu thereof, pay you a taxable cash amount that it would otherwise have paid for the Cliff Vesting Award thatCOBRA Benefits, but for such Qualifying Termination, would have vested from in monthly installments over 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 same time period, shall automatically vest and become exercisable as of the Qualifying Termination Date. If and to the 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) which payment shall be exercisable by made regardless of whether 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Companyelect health care continuation coverage; and
(E) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i3(e)(i) above or 3(d)(ii3(e)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections. For avoidance of doubt, any Cash Severance ▇▇▇ ▇▇▇▇▇▇ March 25, 2015 benefits provided under Sections 3(e)(i) above or 3(e)(ii) below shall be calculated prior to giving effect to any reduction in Base Salary or target Performance Bonus that would give rise to your right to terminate for Good Reason. Additionally, any Cash Severance benefits provided under Sections 3(e)(i) above or 3(e)(ii) below shall be calculated prior to giving effect to any elected or agreed upon temporary forbearance from payment of the Base Salary or Performance Bonus.
Appears in 1 contract
Sources: Employment Agreement (RealD Inc.)
Qualifying Termination. If, If your employment is terminated during the Term, you are no longer serving Term without Cause (as the Chief Executive Officer of defined below) by the Company because either (1) the Company has terminated your employment as Chief Executive Officer without “Cause” (defined below), or (2) by you resign as Chief Executive Officer for “Good Reason” (as defined below) (each, a “Qualifying Termination”), the Company shall pay you (or cause to occur, as applicable) each of the following:
(A) cash severance installment payments in an aggregate amount equal to two one hundred percent (200100%) of your annual Base Salary as in effect on your “Qualifying Termination Date” (as defined below) Date (“Cash Severance”) being paid in ten monthly pro-rata installments with the first installment of Cash Severance (in an amount equal to three months of Base Salary) 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 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 being paid on the second first anniversary of the Termination Date;
(B) a pro-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer General Counsel of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the 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 the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 This pro-rated Performance Bonus and any such discretionary bonus described in this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 Qualifying Termination Date for eighteen twelve (1812) months after the Qualifying Termination Date provided that you are not an employee of the Company after the Qualifying 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”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the 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 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(ED) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.
Appears in 1 contract
Sources: Employment Agreement (RealD Inc.)
Qualifying Termination. If, at any time during the TermVesting Period, you are no longer serving the Participant ceases to be employed by the Corporation or its Subsidiaries (the date of such termination of employment is referred to as the Chief Executive Officer Participant’s “Severance Date”) as a result of the Company because either (1i) the Company has terminated your Participant’s death or Disability or (ii) a termination of employment by the Corporation or one of its Subsidiaries without Cause or by Participant for Good Reason (each as Chief Executive Officer without “Cause” (defined belowherein), or (2) you resign as Chief Executive Officer for “Good Reason” (as defined below) (eachthen, a “Qualifying Termination”subject to the following paragraph and the release requirement set forth in the last paragraph of this Section 8(a), the Company shall pay you (or cause to occur, as applicable) each of the following:
(A) 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-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus LTIP Units will remain outstanding during the remainder of the Vesting Period and will remain subject to Section 3, and (y) the Participant will vest with respect to the number of Performance LTIP Units that would have been earned during the fiscal year vested in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of the Company through the end of such fiscal year, which Performance Bonusaccordance with Section 3, if any, shall be based had the Participant remained employed until the end of the Vesting Period. In the event Participant’s termination of service is due to a “Qualifying Retirement” during the Performance Period (as defined in the Corporation’s Retirement Policy as in effect on the extent Award Date), the Performance LTIP Units will be subject to which the Company achieved the MBO Goals (or the performance standards pro rata vesting treatment set forth in any successor incentive planthe Retirement Policy (and the requirements set forth therein). In the event that the Participant’s employment terminates in the circumstances described in the preceding paragraph (including a Qualifying Retirement) during and the Severance Date occurs on or before the last day of the second year of the Performance Period and on or before the Severance Date, or after the Severance Date and before the last day of the second year of the Performance Period, an Interim Date (as defined in Exhibit A) has been or is established with respect to Peer Group I (as such fiscal year, multiplied by (y) a fractionterm is defined in Exhibit A), the numerator of which is Performance Period with respect to Peer Group I will end on such Interim Date (in the number of days of the Company’s fiscal year event there has been more than one Interim Date on or prior to the Qualifying Termination Severance Date, the most recent Interim Date on or prior to the Severance Date; and in the denominator of which is 365 days. You event that there has been an Interim Date on or prior to the Severance Date, any new Interim Date after the Severance Date shall also be eligible disregarded) and there will be no new or additional measurement period with respect to Peer Group I after such Interim Date as otherwise provided for a discretionary bonus (in Exhibit A. In such circumstances, the determination as determined to whether the Corporation has attained the performance goals set forth in Exhibit A with respect to Peer Group I for the Performance Period shall be made by the Board or a compensation committee of the Board) for the portion Committee based solely on performance through such applicable Interim Date, such determination to be made no later than March 15 of the year served through that follows the Qualifying Termination Datelater of the Severance Date or the applicable Interim Date as to Peer Group I (such determination to be the Committee Determination as to Peer Group I). The pro-rated In such circumstances, any Performance Bonus and any LTIP Units corresponding to Peer Group I that are not vested on the date of such discretionary bonus described in this clause Committee Determination (d)(i)(B) (collectively, a “Pro-Rated Bonus”after giving effect to such Committee Determination) shall be paid cancelled and forfeited. No additional Performance LTIP Units will vest pursuant to you Section 8(b) or Exhibit A with respect to performance after, or a Change in Control Event that occurs after, the applicable Interim Date. Any benefit to the Participant pursuant to the preceding paragraphs of this Section 8 (including in connection with a Qualifying Retirement, but other than in connection with the Participant’s death) is subject to the condition that (i) the Participant has fully executed a valid and effective release (in the form attached to the Severance Plan or, if such release is executed on or after a Change in Control Event, in the form attached to the CIC Severance Plan, in each case for terminations governed by such severance plan, or in such other form as the Committee may reasonably require in the circumstances, including as set forth in the Retirement Policy, which other form shall be substantially similar to the form attached to the Severance Plan or the CIC Severance Plan, as the case may be, and in any case that would otherwise apply in the circumstances but with such changes as the Committee may determine to be required or reasonably advisable in order to make the release enforceable and otherwise compliant with applicable laws), (ii) such executed release is delivered by the Participant to the Corporation so that it is received by the Corporation in the time period specified below, and (iii) such release is not revoked by the Participant (pursuant to any revocation rights afforded by applicable law). In order to satisfy the requirements of this paragraph, the Participant’s release referred to in the preceding sentence must be delivered by the Participant to the Corporation so that it is received by the Corporation no later than twenty-five (25) calendar days after the 15th day Participant’s Severance Date (or such later date as may be required for an enforceable release of the third month immediately following Participant’s claims under the fiscal year United States Age Discrimination in Employment Act of 1967, as amended (“ADEA”), to the extent the ADEA is applicable in the circumstances, in which case the Qualifying Termination has occurred;
Participant will be provided with either twenty-one (C21) or forty-five (45) days, depending on the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 Qualifying Termination Date for eighteen (18) months after the Qualifying Termination Date provided that you are not an employee circumstances of the Company after termination, to consider the Qualifying 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”release). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent Corporation may require that the Company was doing so immediately before the 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 Participant’s release be payable to you from the Termination Date (as determined with reference to your employment with the Company which continued after the Qualifying Termination) and shall be paid until the executed no 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 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Participant’s Severance Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.
Appears in 1 contract
Sources: 3 Year Performance Based Ltip Unit Agreement (Healthpeak Properties, Inc.)
Qualifying Termination. IfSubject to Section 4(a)(ii), if during the Term, 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, Term there is a “Qualifying Termination”), the Company then you shall pay you (or cause be eligible to occur, as applicable) receive each of the following:
(A) cash severance installment payments (“Cash Severance”) in an aggregate amount equal to two one hundred and fifty percent (200150%) of your annual Base Salary as in effect on your “Qualifying Termination Date” (as defined Date being paid, subject to Section 14 below) (“Cash Severance”) , in pro-rata installments on the Company’s normal payroll dates with the first installment of Cash Severance (in an amount equal to three months of Base Salary) being paid on the 90th 60th day after your Separation from Service from the Termination Date Company 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 being paid on the second eighteen month anniversary of the Termination Date;
(B) a pro-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on to the extent to which the Company achieved the MBO Goals (or the performance standards set forth in any successor incentive plan) during such fiscal yearpermitted by applicable laws without incurring statutory penalties, multiplied by (y) a fraction, the numerator of which is the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying Termination Date) for all group employee benefit health benefits coverage continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) to the same extent provided by the Company’s group health plans immediately before the Qualifying Termination Date (“COBRA Benefits”) for eighteen (18) months after the Qualifying Termination Date provided that you are not an employee of the Company after the Qualifying Termination Date, or until you become eligible for group health 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 will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the earlier of (x) eighteen (18) months after such Termination Date; or (y) you become eligible to receive group health coverage from another employercoverage. You agree (i) at any time either before or during the period of time you are receiving benefits under this subsection (C)B) or section 4(a)(ii)(b) below, to inform the Company promptly in writing if you become eligible to receive group health coverage from another employeremployer and to respond to any Company inquiries confirming that you did not become eligible for other coverage; 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(EC) any equity compensation awards (including the “Accrued Obligations” Option (defined belowif granted)) previously granted to you (but excluding any portion of any performance awards which are/were forfeited due to failure to achieve the requisite performance objectives) which are outstanding and unvested as of the Termination Date. For avoidance of doubt, the payments Date shall become incrementally vested and benefits that may be provided under Sections 3(d)(iexercisable on an accelerated basis as if your Termination Date occurred eighteen (18) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsectionsmonths later.
Appears in 1 contract
Qualifying Termination. If, If your employment is terminated during the Term, you are no longer serving Term without Cause (as the Chief Executive Officer of defined below) by the Company because either (1) the Company has terminated your employment as Chief Executive Officer without “Cause” (defined below), or (2) by you resign as Chief Executive Officer for “Good Reason” (as defined below) (each, a “Qualifying Termination”), the Company shall pay you (or cause to occur, as applicable) each of the following:
(A) cash severance installment payments in an aggregate amount equal to two one hundred percent (200100%) of your annual Base Salary as in effect on your “Qualifying Termination Date” (as defined below) Date (“Cash Severance”) being paid in ten monthly pro-rata installments with the first installment of Cash Severance (in an amount equal to three months of Base Salary) being paid on the 90th day after your “separation from service” (within the meaning of Internal Revenue Code (“Code”) Section 409A (“Section 409A”)) from the Company (“Termination Date 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 being paid on the second first anniversary of the Termination Date;
(B) a pro-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer Vice-President, Mobile and Consumer of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the extent to which the Company achieved the MBO Goals (or the performance standards set forth in the 2010 Management Incentive Plan or any successor incentive plan) during such fiscal year, multiplied by (y) a fraction, the numerator of which is the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 This pro-rated Performance Bonus and any such discretionary bonus described in this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 Qualifying Termination Date for eighteen twelve (1812) months after the Qualifying Termination Date provided that you are not an employee of the Company after the Qualifying 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”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the 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 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(ED) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.
Appears in 1 contract
Sources: Employment Agreement (RealD Inc.)
Qualifying Termination. If, during the Term, you are no longer serving as the Chief Executive Officer of the Company because either If (1) the Company has terminated your terminates the Executive’s employment as Chief Executive Officer without “for any reason other than for Cause” (defined below), Disability or death or (2) you resign as Chief the Executive Officer terminates employment for “Good Reason” (as defined below) 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 2018 Equity Incentive Plan of Columbia Banking System, Inc. and including, for the avoidance of doubt, the Merger):
(i) the Company shall pay you to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of (or cause to occur1) the Executive’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 applicable) each of the following:
(A) cash severance installment payments Date of Termination that were incurred by the Executive prior to the Date of Termination 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”) accordance with the first installment of Cash Severance applicable Company policy, and (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-rated cash Performance Bonus, calculated as follows: the product of (x3) the Performance Executive’s Annual Bonus that would have been earned during for the fiscal year immediately preceding the fiscal year in which the Qualifying Date of Termination occurredoccurs if such bonus has been determined but not paid as of the Date of Termination (the sum of the amounts described in clauses (1) through (3) shall be hereinafter referred to as the “Accrued Obligations”);
(ii) subject to Section 4(e), assuming the Company shall pay to the Executive a cash severance benefit in an amount equal to two times the 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 Termination; provided that the Qualifying first payment shall be made on the 60th day following the Date of Termination had not occurred and that you remained as Chief Executive Officer of shall include all installments otherwise payable within such 60-day period;
(iii) subject to Section 4(e), the Company through shall pay to the end Executive in a lump sum in cash a pro rata portion of such fiscal year, any Annual Bonus earned for the year in which Performance Bonus, if any, shall be the Date of Termination occurs (with proration determined based on the 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 the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 months in this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurredExecutive is employed with the Company). The Company shall pay the 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);
(Civ) 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 awards within 60 days following vesting subject to compliance with Section 409A of the Code. For illustrative purposes only, if the Executive holds 96 restricted shares that are scheduled to vest over a four-year period (the “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), for the 24-month period immediately following the Date of Termination, the Company will shall continue the health and welfare benefits provided to pay the Executive and his dependents at the levels provided to active employees; provided that, if the Company determines that such continuation is not feasible without the payment of taxes or penalties or is not permissible under applicable law, the Company and the Executive shall cooperate in good faith to modify this section in such a manner that does not materially increase the cost (to the same extent that Company (collectively, the Company was doing so immediately before the Qualifying Termination Date) for all group employee benefit coverage continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 “Welfare Benefits”); and
(“COBRA”vi) to the same extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided by or that 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 Executive is eligible to receive under any plan, program, policy, practice, contract or agreement of the Company after and its affiliated companies through the Qualifying Date of Termination Date, or until you become eligible for group insurance (such other amounts and benefits from another employer, whichever occurs first, provided that you timely elect COBRA coverage (“COBRA Benefits”). In addition, shall be hereinafter referred to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying Termination Date) of all other benefits being provided to you immediately prior to the Qualifying Termination Date (as 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 DateAs used in this Agreement, the benefits provided by the Company to you term “affiliated companies” shall include any company controlled by, controlling or 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 common control with the Company which continued after the Qualifying Termination) and shall be paid until the 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 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.
Appears in 1 contract
Sources: Employment Agreement (Columbia Banking System, Inc.)
Qualifying Termination. If, during the Term, you are no longer serving as the Chief Executive Officer incurs a Qualifying Termination, then subject to and conditioned upon Executive’s timely execution and non-revocation of a general release of claims in a form prescribed by the Company because either (1the “Release”) which becomes effective and irrevocable no later than sixty (60) days following 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”)Termination Date and Executive’s continued compliance with the provisions of Section 6 hereof, the Company shall pay you or provide to Executive the following (or cause in addition to occurthe Accrued Obligations):
(i) The Company shall continue to pay to Executive amounts equal to Executive’s then-current Base Salary (which, as applicablein 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) each (the “Continued Salary Severance”) during the period commencing on the Termination Date and ending on the last day of the following:then-current Term (the “Severance Period”). The Company shall pay the Continued Salary Severance in substantially equal installments in accordance with the Company’s customary payroll practices during the Severance Period; provided, that no such payments shall be made prior to the date on which the Release becomes effective and irrevocable and, if the aggregate period during which Executive is entitled to 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 lump sum payment (the “Lump Sum Severance”) equal to (A) cash severance installment payments in an aggregate amount equal to two hundred percent three (200%3) of your annual Base Salary as in effect on your “Qualifying Termination Date” times the Average Compensation less (as defined belowB) (“Cash Severance”) with the first installment of Cash Severance (in an amount equal to three months of Base Salary) being paid the Continued Salary Severance, payable in a single lump sum cash payment on the 90th day after First Payroll Date. For purposes of this Agreement, “Average Compensation” is 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 average of the Termination Date;
(B) a pro-rated cash Performance Bonus, calculated as follows: the product sum of Executive’s actual (x) Base Salary (which, in the Performance Bonus that would have been earned during 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 Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the 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 the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 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 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”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the 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 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the “Accrued Obligations” (defined below) as of the Termination Dateoccurs. For the avoidance of doubt, in no event shall the payments and benefits that may be provided under Sections 3(d)(isum of the Lump Sum Severance plus the Continued Salary Severance exceed three (3) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsectionstimes the Average Compensation.
Appears in 1 contract
Sources: Employment Agreement (Kennedy-Wilson Holdings, Inc.)
Qualifying Termination. If, during In the Term, you are no longer serving as the Chief Executive Officer event 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 Executive shall pay you (or cause to occur, as applicable) each of receive the followingfollowing benefits:
(Ai) cash severance installment payments Payment of all Accrued Obligations in an aggregate amount equal to two hundred percent (200%) a lump sum on the Date of your annual Base Salary as 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 effect on your “Qualifying Termination Date” (as defined below) (“Cash Severance”) accordance with the first installment terms of Cash Severance the relevant plan as applicable to the Executive,
(ii) Payment in an a lump sum on the Date of Termination of a pro rata cash bonus for the year in which the Date of Termination occurs, determined and paid in accordance with the terms of the then current annual bonus plan applicable to the Executive,
(iii) Payment in a lump sum on the Date of Termination of a salary replacement amount equal to three months hundred percent (300%) of Base Salarythe annual base salary required to be paid to Executive pursuant to Paragraph 3(a) being paid above, or if greater, the rate of annual salary as in effect immediately prior to the Date of Termination, 5
(iv) Payment in a lump sum on the 90th day after the Date of Termination Date and with the remaining of a bonus replacement 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 to three hundred percent (300%) of the Termination Date;
highest of the annual bonus paid or payable to the Executive for the three (B3) a pro-rated cash Performance Bonus, calculated as follows: years preceding the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Date of Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of the Company through the end of such fiscal year, which Performance Bonusoccurs or, if any, shall be based on the 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 fractiongreater, the numerator of which is the number of days of the CompanyExecutive’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible target bonus for a 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 this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Date of Termination has occurred;occurs,
(Cv) Payment in a lump sum on the Company will continue Date of Termination of a retirement replacement amount equal to pay 300% of the sum of the Member Investment and Stock Ownership Plan, Retirement Income Plan and Unfunded Deferred Compensation Plan contributions made or credited by the Corporation for the benefit of 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,
(vi) Continuation, for a period of three (3) years after the Date of Termination, of the following employee benefits on terms at least as favorable to the 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 paid by the 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 same extent that applicable insurer and/or administrator when premiums for such coverage are due in accordance with the Company was doing so immediately before terms and conditions of the Qualifying Termination Dateapplicable insurance policy or administrative services agreement. Notwithstanding the foregoing, if the Executive is a “specified employee” (as described in Section 7 below) for all group employee benefit on the date of the Executive’s “separation from service” (as described in Section 7 below), continued coverage continuation 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 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 (vi), the Executive and Executive’s dependents will be entitled to elect Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) to continuation coverage on the same extent provided 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,
(vii) Outplacement services, at the expense of the Corporation, from a provider reasonably selected 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 Date, or until you become eligible for group insurance benefits from another employer, whichever occurs firstExecutive, provided that you timely elect COBRA coverage (“COBRA Benefits”). In additionhowever, to the extent that you the outplacement services are no longer an employee taxable under the Internal Revenue Code, the expenses must be incurred before the last day of the Company after second year following separation from service and the Qualifying reimbursement must be made before the last day of the third year following separation from service, and
(viii) Tax preparation services for the Executive’s taxable year in which the Date of Termination Dateoccurs, provided at the Company will continue to pay expense of the cost (to Corporation, on the same extent that the Company was doing so immediately before the Qualifying Termination Date) of all other benefits being basis as provided to you Executive immediately prior to the Qualifying Termination Effective Date (the “Other Benefits”)provided however, 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 Qualifying Termination) and shall be paid until the 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 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 extent any portion the tax preparation services are taxable under the Internal Revenue Code, the expenses must be incurred before the last day of the Equity Incentives are performance-based and/or are subject to any vesting conditions other than second year following separation from service and the passage of time (including without limitation reimbursement must be made before the “Performance Options”, defined below) (collectively, the “Performance Awards”), then such Equity Incentives shall vest and become exercisable based on 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 last day of the performance standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other manner determined by the Companythird year following separation from service. The vested Equity Incentives as of the Qualifying Termination Date (including any Options that were subject to accelerated vesting pursuant to this clause (D)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.6
Appears in 1 contract
Sources: Transitional Compensation Agreement (Woodward Governor Co)
Qualifying Termination. IfExcept as applies under paragraph 4(b), during if prior to the Termexpiration of the Employment Period (without regard to any early termination of the Employment Period as set forth in this paragraph 4), you are no longer serving Executive’s employment by the Company is terminated without Cause or by Executive pursuant to a Constructive Termination, or the Company gives Executive notice pursuant to paragraph 1 of this Agreement that it is not renewing the Employment Period, then (i) the Employment Period shall be deemed to have ended as of the Chief date of the termination of employment or the end of the Employment Period in the case of non-renewal (the “Termination Date”), and (ii) Executive Officer shall be entitled to receive (A) all earned and accrued Base Salary through the Termination Date, any then accrued and unpaid Bonus for any fiscal year of the Company because either which ended prior to the Termination Date, all earned but unused Vacation as of the Termination Date, and, subject to the timely submission of required documentation, all unpaid, reimbursable Expenses as of the Termination Date (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 TerminationAccrued Obligations”), the Company shall pay you subject to Executive’s continued compliance with paragraphs 6, 7 and 8 hereof, (or cause to occur, as applicableB) each of the following:
(A) 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-rated cash Performance Bonus, calculated as follows: the product of (x) two (2) and (y) the Performance Bonus that would have been earned during sum of Executive’s (I) Base Salary and (II) Target Bonus, payable in equal monthly installments, in accordance with the fiscal year Company’s normal payroll practices in which effect on the Qualifying Termination occurredDate, assuming that for the Qualifying twelve (12) month period following the Termination had not occurred and that you remained as Chief Executive Officer Date, (C) an amount (the “Pro-Rata Amount”) equal to the product of (p) the percentage of the days in the applicable calendar year that Executive is employed by the Company through and (q) Executive’s Bonus for the end of such immediately preceding fiscal year, which Performance Bonuspayable upon satisfaction of the conditions under paragraph 4(h) hereof, if any, shall be based (D) continued Benefits during the period beginning on the 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 the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and ending on the denominator first to occur of which is 365 days. You shall also be eligible for a 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 this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(Cxx) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 Qualifying Termination Date for date eighteen (18) months after the Qualifying Termination Date provided that you are not an employee and (yy) the first date after the date hereof on which Executive accepts employment from a company or other entity other than a member of the Company after the Qualifying 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”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the 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 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 periodGroup, and may, for tax purposes, be considered income to you;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) outplacement services provided by a nationally-recognized outplacement firm, such services to be commensurate with the “Accrued Obligations” (defined below) services commonly provided to a person in a position comparable to Executive’s position as of the Termination Date. For avoidance of doubtChief Executive Officer, the payments subject, in each case, to withholding and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsectionsother appropriate deductions.
Appears in 1 contract
Qualifying Termination. IfExcept as applies under paragraph 4(b), during if prior to the Termexpiration of the Employment Period (without regard to any early termination of the Employment Period as set forth in this paragraph 4), you are no longer serving Executive’s employment by the Company is terminated without Cause or by Executive pursuant to a Constructive Termination, or the Company gives Executive notice pursuant to paragraph 1 of this Agreement that it is not renewing the Employment Period, then (i) the Employment Period shall be deemed to have ended as of the Chief date of the termination of employment or the end of the Employment Period in the case of non-renewal (the “Termination Date”), and (ii) Executive Officer shall be entitled to receive (A) all earned and accrued Base Salary through the Termination Date, any then accrued and unpaid Bonus for any fiscal year of the Company because either which ended prior to the Termination Date, all earned but unused Vacation as of the Termination Date, and, subject to the timely submission of required documentation, all unpaid, reimbursable Expenses as of the Termination Date (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 TerminationAccrued Obligations”), the Company shall pay you and subject to Executive’s continued compliance with paragraphs 6, 7 and 8 hereof, (or cause to occur, as applicableB) each of the following:
(A) 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-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred one and that you remained as Chief Executive Officer of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the extent to which the Company achieved the MBO Goals one-half (or the performance standards set forth in any successor incentive plan1.5) during such fiscal year, multiplied by and (y) a fractionthe sum of Executive’s (I) Base Salary and (II) Target Bonus in effect on the Termination Date, the numerator of which is the number of days of payable in equal monthly installments, in accordance with the Company’s fiscal year prior normal payroll practices in effect on the Termination Date, for the eighteen (18) month period following the Termination Date, (C) an amount (the “Pro-Rata Amount”) equal to the Qualifying product of (p) the percentage of the days in the applicable calendar year that Executive is employed by the Company and (q) Executive’s annual Bonus for such full year if Executive’s employment had not terminated (without regard to any subjective performance goals), payable in accordance with paragraph 3(b) hereof, (D) continued Benefits during the period beginning on the Termination Date and ending on the denominator first to occur of which is 365 days. You shall also be eligible for a 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 this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(Cxx) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 Qualifying Termination Date for date eighteen (18) months after the Qualifying Termination Date provided that you are not an employee and (yy) the first date after the date hereof on which Executive accepts employment from a company or other entity other than a member of the Company after the Qualifying 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”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the 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 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 periodGroup, and may, for tax purposes, be considered income to you;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) outplacement services provided by a nationally-recognized outplacement firm, such services to be commensurate with the “Accrued Obligations” (defined below) as of services commonly provided to a person in a position comparable to Executive’s position with the Termination Date. For avoidance of doubtCompany, the payments subject, in each case, to withholding and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsectionsother appropriate deductions.
Appears in 1 contract
Qualifying Termination. If, during the Term, you are no longer serving as the Chief Executive Officer incurs a Qualifying Termination, then subject to and conditioned upon Executive’s timely execution and non-revocation of a general release of claims in a form prescribed by the Company because either (1the “Release”) which becomes effective and irrevocable no later than sixty (60) days following 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”)Termination Date and Executive’s continued compliance with the provisions of Section 6 hereof, the Company shall pay you or provide to Executive the following (or cause in addition to occurthe Accrued Obligations):
(i) The Company shall continue to pay to Executive amounts equal to Executive’s then-current Base Salary (which, as applicablein 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) each (the “Continued Salary Severance”) during the period commencing on the Termination Date and ending on the last day of the following:then-current Term (the “Severance Period”). The Company shall pay the Continued Salary Severance in substantially equal installments in accordance with the Company’s customary payroll practices during the Severance Period; provided, that no such payments ||| shall be made prior to the date on which the Release becomes effective and irrevocable and, if the aggregate period during which Executive is entitled to 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 lump sum payment (the “Lump Sum Severance”) equal to (A) cash severance installment payments in an aggregate amount equal to two hundred percent (200%2) of your annual Base Salary as in effect on your “Qualifying Termination Date” times the Average Compensation less (as defined belowB) (“Cash Severance”) with the first installment of Cash Severance (in an amount equal to three months of Base Salary) being paid the Continued Salary Severance, payable in a single lump sum cash payment on the 90th day after First Payroll Date. For purposes of this Agreement, “Average Compensation” is 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 average of the Termination Date;
(B) a pro-rated cash Performance Bonus, calculated as follows: the product sum of Executive’s actual (x) Base Salary (which, in the Performance Bonus that would have been earned during 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 Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the 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 the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 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 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”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the 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 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the “Accrued Obligations” (defined below) as of the Termination Dateoccurs. For the avoidance of doubt, in no event shall the payments and benefits that may be provided under Sections 3(d)(isum of the Lump Sum Severance plus the Continued Salary Severance exceed two (2) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsectionstimes the Average Compensation.
Appears in 1 contract
Sources: Employment Agreement (Kennedy-Wilson Holdings, Inc.)
Qualifying Termination. IfSubject to Section 4(a)(ii), if during the Term, 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, Term there is a “Qualifying Termination”), the Company then you shall pay you (or cause be eligible to occur, as applicable) receive each of the following:
(A) cash severance installment payments (“Cash Severance”) in an aggregate amount equal to two hundred fifty percent (20050%) of your annual Base Salary as in effect on your “Qualifying Termination Date” (as defined Date being paid, subject to Section 14 below) (“Cash Severance”) , in five monthly pro-rata installments with the first installment of Cash Severance (in an amount equal to three months of Base Salary) being paid on the 90th 60th day after your Separation from Service from the Termination Date Company 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 being paid on the second six month anniversary of the Termination Date;
(B) a pro-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on to the extent to which the Company achieved the MBO Goals (or the performance standards set forth in any successor incentive plan) during such fiscal yearpermitted by applicable laws without incurring statutory penalties, multiplied by (y) a fraction, the numerator of which is the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying Termination Date) for all group employee benefit health benefits coverage continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) to the same extent provided by the Company’s group health plans immediately before the Qualifying Termination Date (“COBRA Benefits”) for eighteen six (186) months after the Qualifying Termination Date provided that you are not an employee of the Company after the Qualifying Termination Date, or until you become eligible for group health 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 will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the earlier of (x) eighteen (18) months after such Termination Date; or (y) you become eligible to receive group health coverage from another employercoverage. You agree (i) at any time either before or during the period of time you are receiving benefits under this subsection (C)B) or section 4(a)(ii)(b) below, to inform the Company promptly in writing if you become eligible to receive group health coverage from another employeremployer and to respond to any Company inquiries confirming that you did not become eligible for other coverage; 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;
(C) a cash payment (paid, and maysubject to Section 14 below, for tax purposes, be considered income on the 60th day after your Separation from Service from the Company) in an amount equal to you;twenty-five percent (25%) of your annual Base Salary as in effect on your Termination Date; and
(D) the portion of the “Options” (defined below), including any additional stock options and other equity compensation incentives awards (including the Option (if granted)) previously 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 that but excluding any portion of any performance awards which are/were forfeited due to failure to achieve the Equity Incentives vest based on continued employment on an annual or “cliff” basis requisite performance objectives) which are outstanding and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the “Accrued Obligations” (defined below) unvested as of the Termination Date. For avoidance of doubt, the payments Date shall become incrementally vested and benefits that may be provided under Sections 3(d)(iexercisable on an accelerated basis as if your Termination Date occurred six (6) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsectionsmonths later.
Appears in 1 contract
Qualifying Termination. If, during the Term, you are no longer serving as the Chief Executive Officer of the The Company because either (1) the Company has terminated may terminate your employment as Chief Executive Officer CEO and President without “Cause” 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 (defined below)30) days advance written notice. If your employment as CEO and President is terminated due to a Qualifying Termination, then you will be eligible to receive the items set forth below subject to your timely compliance with Section 7(e) and further provided that no payments for such Qualifying Termination shall be made until on or (2) you resign as Chief Executive Officer for “Good Reason” (as defined below) (each, after the date of a “Qualifying Termination”)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 (or cause to occur, as applicable) each of with such payment occurring at the following:
(A) cash severance installment same time that the final bonus payment would be made if you had remained employed and taking into account any interim 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 belowpreviously made) (the “Cash SeveranceEarned Bonus”) 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);
(Bii) The Company shall pay you a pro-rated cash Performance Bonus, calculated as follows: the product pro rata portion of (xany bonus payable pursuant to Section 3(b) the Performance Bonus that would have been earned during above in respect of the fiscal year in which the Qualifying Termination occurredDate occurs, assuming if any, pro-rated for the number of days in such fiscal year in which you were employed over the number of total calendar days in such fiscal year (with such payment occurring at the same time that the Qualifying Termination bonus payment would be made if you had not occurred and that you remained as Chief Executive Officer of employed) (the “Pro Rata Bonus”);
(iii) Subject to Section 11 below, the Company shall provide you with cash payments over the lesser of (1) the eighteen (18)-month period following your Termination Date and (2) the period from your Termination Date through the end of such fiscal year, which Performance Bonus, if any, shall be based on the extent to which the Company achieved the MBO Goals expected term (or the performance standards set forth in any successor incentive plan) during such fiscal year, multiplied by (y) a fractionas applicable, the numerator of which is “Severance Period”) equal in the number of days of the Company’s fiscal year aggregate to your then current annual Base Salary (prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a discretionary bonus (as determined by the Board or a compensation committee of the Boardany reduction giving rise to Good Reason) for the portion of the year served through the Qualifying Termination Date. The pro-rated Performance Bonus and any such discretionary bonus described in for the Severance Period. The cash payments provided by this clause subpart (d)(i)(B) (collectively, a “Pro-Rated Bonus”iii) shall be paid to you no later than in substantially equal installments payable under regular payroll practices over the 15th day of the third month immediately following the fiscal year in which the Qualifying Severance Period, provided that once such payments commence, they will include any unpaid amounts accrued from your Termination has occurredDate;
(Civ) the The Company will shall continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 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 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”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the 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 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;
(D) the portion of the “Options” premiums for your Company group medical insurance coverage (defined below), including any additional stock options and other equity compensation incentives granted to you or alternative comparable coverage) during the Term Severance Period provided you continue to timely pay the same portion (collectively, if any) of the “Equity Incentives”), necessary premium that would have vested (assuming that you were responsible to pay as of immediately before 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 additionall cases, the coverage (and/or reimbursement payments) provided in this subpart shall immediately terminate if you are offered comparable coverage in connection with your employment by another employer; and
(v) For purposes of this Agreement, you may resign your employment from the event Company as CEO and President for “Good Reason” within ninety (90) days after the date that any portion one of the Equity Incentives vest based on continued employment on an annual 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 “cliff” 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). Such notice of your intention to resign for Good Reason must be provided to the date of any such annual or cliff vesting is outside Company within sixty (60) days of the twenty-four (24) month forward vesting period mentioned in initial existence of a Good Reason event. Failure to timely provide such written notice to the preceding sentence (each, a “Cliff Vesting Award”)Company or failure to timely resign your employment for Good Reason means that you will be deemed to have consented to and waived the Good Reason event. If the Company does timely cure or remedy the Good Reason event, then the portion of the Cliff Vesting Award that, but for such Qualifying Termination, would have 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 you may either resign your employment without Good Reason or you may continue to the extent any portion of the Equity Incentives are performance-based and/or are remain employed 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the Agreement. “Accrued ObligationsGood Reason” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.means:
Appears in 1 contract
Qualifying Termination. IfSubject to Section 4(a)(ii), if during the Term, 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, Term there is a “Qualifying Termination”), the Company then you shall pay you (or cause be eligible to occur, as applicable) receive each of the following:
(A) cash severance installment payments (“Cash Severance”) in an aggregate amount equal to two one hundred percent (200100%) of your annual Base Salary as in effect on your “Qualifying Termination Date” (as defined Date being paid, subject to Section 14 below) (“Cash Severance”) , in eleven monthly pro-rata installments with the first installment of Cash Severance (in an amount equal to three months of Base Salary) being paid on the 90th 60th day after your Separation from Service from the Termination Date Company 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 being paid on the second first anniversary of the Termination Date;; and
(B) a pro-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on to the extent to which the Company achieved the MBO Goals (or the performance standards set forth in any successor incentive plan) during such fiscal yearpermitted by applicable laws without incurring statutory penalties, multiplied by (y) a fraction, the numerator of which is the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying Termination Date) for all group employee benefit health benefits coverage continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) to the same extent provided by the Company’s group health plans immediately before the Qualifying Termination Date (“COBRA Benefits”) for eighteen twelve (1812) months after the Qualifying Termination Date provided that you are not an employee of the Company after the Qualifying Termination Date, or until you become eligible for group health 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 will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the earlier of (x) eighteen (18) months after such Termination Date; or (y) you become eligible to receive group health coverage from another employercoverage. You agree (i) at any time either before or during the period of time you are receiving benefits under this subsection (C)B) or section 4(a)(ii)(b) below, to inform the Company promptly in writing if you become eligible to receive group health coverage from another employeremployer and to respond to any Company inquiries confirming that you did not become eligible for other coverage; 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(EC) any equity compensation awards (including the “Accrued Obligations” Options (defined belowif granted)) previously granted to you (but excluding any portion of any performance awards which are/were forfeited due to failure to achieve the requisite performance objectives) which are outstanding and unvested as of the Termination Date. For avoidance of doubt, the payments Date shall become incrementally vested and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and exercisable on an accelerated basis as if payments and benefits are provided under either your Termination Date occurred one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsectionsyear later.
Appears in 1 contract
Qualifying Termination. If, at any time during the TermVesting Period, you are no longer serving the Participant ceases to be employed by the Employer, (the date of such termination of employment is referred to as the Chief Executive Officer Participant’s “Severance Date”) as a result of the Company because either (1i) the Company has terminated your Participant’s death or Disability or (ii) a termination of employment by the Employer without Cause or by Participant for Good Reason (each as Chief Executive Officer without “Cause” (defined belowherein), or (2) you resign as Chief Executive Officer for “Good Reason” (as defined below) (eachthen, a “Qualifying Termination”subject to the following paragraph and the release requirement set forth in the last paragraph of this Section 8(a), the Company shall pay you (or cause to occur, as applicable) each of the following:
(A) 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-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus LTIP Units will remain outstanding during the remainder of the Vesting Period and will remain subject to Section 3, and (y) the Participant will vest with respect to the number of Performance LTIP Units that would have been earned during the fiscal year vested in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of the Company through the end of such fiscal year, which Performance Bonusaccordance with Section 3, if any, shall be based had the Participant remained employed until the end of the Vesting Period. In the event Participant’s termination of service is due to a “Qualifying Retirement” during the Performance Period (as defined in Healthpeak’s Retirement Policy as in effect on the extent Award Date), the Performance LTIP Units will be subject to which the Company achieved the MBO Goals (or the performance standards pro rata vesting treatment set forth in any successor incentive planHealthpeak’s Retirement Policy (and the requirements set forth therein). In the event that the Participant’s employment terminates in the circumstances described in the preceding paragraph (including a Qualifying Retirement) during and the Severance Date occurs on or before the last day of the fourth year of the Performance Period, or after the Severance Date and before the last day of the fourth year of the Performance Period, an Interim Date (as defined in Exhibit A) has been or is established with respect to the Peer Group (as such fiscal year, multiplied by (y) a fractionterm is defined in Exhibit A), the numerator of which is Performance Period will end on such Interim Date (in the number of days of the Company’s fiscal year event there has been more than one Interim Date on or prior to the Qualifying Termination Severance Date, the most recent Interim Date on or prior to the Severance Date; and in the denominator of which is 365 days. You event that there has been an Interim Date on or prior to the Severance Date, any new Interim Date after the Severance Date shall also be eligible disregarded) and there will be no new or additional measurement period with respect to the Peer Group after such Interim Date as otherwise provided for a discretionary bonus (in Exhibit A. In such circumstances, the determination as determined to whether the Corporation has attained the performance goals set forth in Exhibit A with respect to the Peer Group for the Performance Period shall be made by the Board or a compensation committee of the Board) for the portion Committee based solely on performance through such applicable Interim Date, such determination to be made no later than March 15 of the year served through that follows the Qualifying Termination Datelater of the Severance Date or the applicable Interim Date as to the Peer Group (such determination to be the Committee Determination as to the Peer Group). The pro-rated In such circumstances, any Performance Bonus and any LTIP Units corresponding to the Peer Group that are not vested on the date of such discretionary bonus described in this clause Committee Determination (d)(i)(B) (collectively, a “Pro-Rated Bonus”after giving effect to such Committee Determination) shall be paid cancelled and forfeited. No additional Performance LTIP Units will vest pursuant to you Section 8(b) or Exhibit A with respect to performance after, or a Change in Control Event that occurs after, the applicable Interim Date. Any benefit to the Participant pursuant to the preceding paragraphs of this Section 8 (including in connection with a Qualifying Retirement, but other than in connection with the Participant’s death) is subject to the condition that (i) the Participant has fully executed a valid and effective release (in the form attached to the Healthpeak Severance Plan or, if such release is executed on or after a Change in Control Event, in the form attached to the Healthpeak CIC Severance Plan, in each case for terminations governed by such severance plan, or in such other form as the Committee may reasonably require in the circumstances, including as set forth in Healthpeak’s Retirement Policy, which other form shall include the Corporation, the Partnership and their related persons as releasees and otherwise be substantially similar to the form attached to the Healthpeak Severance Plan or the Healthpeak CIC Severance Plan, as the case may be, and in any case that would otherwise apply in the circumstances but with such changes as the Committee may determine to be required or reasonably advisable in order to make the release enforceable and otherwise compliant with applicable laws), (ii) such executed release is delivered by the Participant to Healthpeak and the Corporation, so that it is received by Healthpeak and the Corporation in the time period specified below, and (iii) such release is not revoked by the Participant (pursuant to any revocation rights afforded by applicable law). In order to satisfy the requirements of this paragraph, the Participant’s release referred to in the preceding sentence must be delivered by the Participant to Healthpeak and the Corporation so that it is received by Healthpeak and the Corporation no later than twenty-five (25) calendar days after the 15th day Participant’s Severance Date (or such later date as may be required for an enforceable release of the third month immediately following Participant’s claims under the fiscal year United States Age Discrimination in Employment Act of 1967, as amended (“ADEA”), to the extent the ADEA is applicable in the circumstances, in which case the Qualifying Termination has occurred;
Participant will be provided with either twenty-one (C21) or forty-five (45) days, depending on the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 Qualifying Termination Date for eighteen (18) months after the Qualifying Termination Date provided that you are not an employee circumstances of the Company after termination, to consider the Qualifying 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”release). In addition, to Healthpeak and the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent Corporation may require that the Company was doing so immediately before the 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 Participant’s release be payable to you from the Termination Date (as determined with reference to your employment with the Company which continued after the Qualifying Termination) and shall be paid until the executed no 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 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Participant’s Severance Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.
Appears in 1 contract
Sources: 5 Year Performance Based Ltip Unit Agreement (Janus Living, Inc.)
Qualifying Termination. If, at any time during the TermVesting Period, you are no longer serving the Participant ceases to be employed by the Corporation or its Subsidiaries (the date of such termination of employment is referred to as the Chief Executive Officer Participant’s “Severance Date”) as a result of the Company because either (1i) the Company has terminated your Participant’s death or Disability or (ii) a termination of employment by the Corporation or one of its Subsidiaries without Cause or by Participant for Good Reason (each as Chief Executive Officer without “Cause” (defined belowherein), or (2) you resign as Chief Executive Officer for “Good Reason” (as defined below) (eachthen, a “Qualifying Termination”subject to the following paragraph and the release requirement set forth in the last paragraph of this Section 8(a), the Company shall pay you (or cause to occur, as applicable) each of the following:
(A) 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-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus LTIP Units will remain outstanding during the remainder of the Vesting Period and will remain subject to Section 3, and (y) the Participant will vest with respect to the number of Performance LTIP Units that would have been earned during the fiscal year vested in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of the Company through the end of such fiscal year, which Performance Bonusaccordance with Section 3, if any, had the Participant remained employed until the end of the Vesting Period. In the event that the Participant’s employment terminates in the circumstances described in the preceding paragraph and the Severance Date occurs on or before the last day of the second year of the Performance Period and on or before the Severance Date, or after the Severance Date and before the last day of the second year of the Performance Period, an Interim Date (as defined in Exhibit A) has been or is established with respect to Peer Group I (as such term is defined in Exhibit A), the Performance Period with respect to Peer Group I will end on such Interim Date (in the event there has been more than one Interim Date on or prior to the Severance Date, the most recent Interim Date on or prior to the Severance Date; and in the event that there has been an Interim Date on or prior to the Severance Date, any new Interim Date after the Severance Date shall be based on disregarded) and there will be no new or additional measurement period with respect to Peer Group I after such Interim Date as otherwise provided for in Exhibit A. In such circumstances, the extent determination as to which whether the Company achieved the MBO Goals (or Corporation has attained the performance standards goals set forth in any successor incentive plan) during such fiscal year, multiplied by (y) a fraction, Exhibit A with respect to Peer Group I for the numerator of which is the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You Performance Period shall also be eligible for a discretionary bonus (as determined made by the Board or a compensation committee of the Board) for the portion Committee based solely on performance through such applicable Interim Date, such determination to be made no later than March 15 of the year served through that follows the Qualifying Termination Datelater of the Severance Date or the applicable Interim Date as to Peer Group I (such determination to be the Committee Determination as to Peer Group I). The pro-rated In such circumstances, any Performance Bonus and any LTIP Units corresponding to Peer Group I that are not vested on the date of such discretionary bonus described in this clause Committee Determination (d)(i)(B) (collectively, a “Pro-Rated Bonus”after giving effect to such Committee Determination) shall be paid cancelled and forfeited. No additional Performance LTIP Units will vest pursuant to you Section 8(b) or Exhibit A with respect to performance after, or a Change in Control Event that occurs after, the applicable Interim Date. Any benefit to the Participant pursuant to the preceding paragraphs of this Section 8 (other than in connection with the Participant’s death) is subject to the condition that (i) the Participant has fully executed a valid and effective release (in the form attached to the Severance Plan or, if such release is executed on or after a Change in Control Event, in the form attached to the CIC Severance Plan, or in either case such other form as the Committee may reasonably require in the circumstances, which other form shall be substantially similar to the form attached to the Severance Plan or the CIC Severance Plan, as the case may be, that would otherwise apply in the circumstances but with such changes as the Committee may determine to be required or reasonably advisable in order to make the release enforceable and otherwise compliant with applicable laws), (ii) such executed release is delivered by the Participant to the Corporation so that it is received by the Corporation in the time period specified below, and (iii) such release is not revoked by the Participant (pursuant to any revocation rights afforded by applicable law). In order to satisfy the requirements of this paragraph, the Participant’s release referred to in the preceding sentence must be delivered by the Participant to the Corporation so that it is received by the Corporation no later than twenty-five (25) calendar days after the 15th day Participant’s Severance Date (or such later date as may be required for an enforceable release of the third month immediately following Participant’s claims under the fiscal year United States Age Discrimination in Employment Act of 1967, as amended (“ADEA”), to the extent the ADEA is applicable in the circumstances, in which case the Qualifying Termination has occurred;
Participant will be provided with either twenty-one (C21) or forty-five (45) days, depending on the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 Qualifying Termination Date for eighteen (18) months after the Qualifying Termination Date provided that you are not an employee circumstances of the Company after termination, to consider the Qualifying 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”release). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent Corporation may require that the Company was doing so immediately before the 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 Participant’s release be payable to you from the Termination Date (as determined with reference to your employment with the Company which continued after the Qualifying Termination) and shall be paid until the executed no 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 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Participant’s Severance Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.
Appears in 1 contract
Sources: 3 Year Performance Based Ltip Unit Agreement (Healthpeak Properties, Inc.)
Qualifying Termination. If, If your employment is terminated during the Term, you are no longer serving Term without Cause (as the Chief Executive Officer of defined below) by the Company because either (1) the Company has terminated your employment as Chief Executive Officer without “Cause” (defined below), or (2) by you resign as Chief Executive Officer for “Good Reason” (as defined below) (each, a “Qualifying Termination”), the Company shall pay you (or cause to occur, as applicable) occur each of the following:
: (A) pay you cash severance installment payments in an aggregate amount equal to two one hundred percent (200100%) of your annual Base Salary as in effect on your “Qualifying Termination Date” (as defined below) Date (“Cash Severance”) being paid in ten monthly pro-rata installments with the first installment of Cash Severance (in an amount equal to three months of Base Salary) being paid on the 90th day after your “separation from service” (within the meaning of Internal Revenue Code (“Code”) Section 409A (“Section 409A”)) from the Company (“Termination Date 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 being paid on the second first anniversary of the Termination Date;
; (B) pay you a pro-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer President, Worldwide Cinema of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the extent to which the Company achieved the MBO Goals (or the performance standards set forth in the 2010 Management Incentive Plan or any successor incentive plan) during such fiscal year, multiplied by (y) a fraction, the numerator of which is the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 This pro-rated Performance Bonus and any such discretionary bonus described in this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
; (C) accelerate the vesting of your RSUs and other time-based vesting equity awards, if any, in accordance with their applicable vesting schedules, as if you had provided an additional twelve (12) months of service to the Company as its President, Worldwide Cinema as of the Termination Date; (D) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 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 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”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the 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 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; provided, and mayhowever, if the Company determines, in its sole discretion, that it cannot pay for tax purposesthe COBRA Benefits without potentially incurring financial cost or penalties under applicable law (including without limitation, be considered income to you;
(D) the portion Section 2716 of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual or cliff vesting is outside of the twenty-four (24) month forward vesting period mentioned in the preceding sentence (each, a “Cliff Vesting Award”Public Health Service Act), then the portion of Company shall, in lieu thereof, pay you a taxable cash amount that it would otherwise have paid for the Cliff Vesting Award thatCOBRA Benefits, but for such Qualifying Termination, would have vested from in monthly installments over 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 same time period, shall automatically vest and become exercisable as of the Qualifying Termination Date. If and to the 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) which payment shall be exercisable by made regardless of whether 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)elect health care continuation coverage; (y) the scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i3(e)(i) above or 3(d)(ii3(e)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.under
Appears in 1 contract
Sources: Employment Agreement (RealD Inc.)
Qualifying Termination. IfNotwithstanding Section 7(a) above, during if the Term, you are no longer serving termination of this Agreement and Employee’s employment hereunder constitutes a Qualifying Termination (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 then, in addition to Employee’s Accrued Obligations and subject to Section 7(c) below:
(2i) you resign as Chief Executive Officer for “Good Reason” (as defined below) (each, a “Qualifying Termination”), the Company shall be obligated to pay you to Employee a severance payment (or cause the “Severance Payment”) equal to occur, as applicable) each the sum of the following:
(A) cash severance installment payments in an aggregate amount equal to two hundred percent one (200%1) year of your annual Employee’s Base Salary as (at the rate in effect on your “Qualifying the Termination Date” ) plus (as defined belowB) one (1) times the amount of the Annual Bonus paid to Employee in the prior fiscal year (collectively, the “Cash SeveranceSeverance Payment”) with the first installment of Cash ). The Severance (Payment shall be paid to Employee in an amount equal to three months of Base Salary) being paid a lump sum on the 90th next regular Company pay date following the 60th 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;; and
(Bii) a pro-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred if Employee timely elects to continue and that you remained as Chief Executive Officer of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the extent maintain group health plan coverage pursuant 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 the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying Termination Date) for all group employee benefit coverage continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 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 (A) the one (1) year anniversary of the Termination Date, and (B) the date Employee becomes eligible to obtain healthcare coverage from a new employer (“COBRA Assistance Period”), which portion will be equal to (x) the same extent provided amount of the monthly health care premium payment under COBRA actually paid by Employee for COBRA coverage during the Company’s group plans immediately before COBRA Assistance Period, less (y) the Qualifying Termination Date for eighteen (18) months after amount Employee would have been required to contribute toward health insurance coverage during the Qualifying Termination Date provided that you are not COBRA Assistance Period if Employee had remained an active employee of the Company after (the Qualifying 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 BenefitsAssistance”). In addition, Employee agrees to the extent that you are no longer an employee of immediately inform the Company after the Qualifying Termination Date, the Company will continue if he becomes eligible to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying Termination Date) of all other benefits being provided to you immediately obtain alternate healthcare coverage from a new employer prior to the Qualifying Termination Date one (the “Other Benefits”), for eighteen (181) 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 Qualifying Termination) and shall be paid until the 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 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;
(D) the portion of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the “Accrued Obligations” (defined below) as year anniversary of the Termination Date. For avoidance Employee also agrees to remit to the Company, on a monthly basis and within thirty (30) days of doubtthe date of payment by Employee, paid invoices for each such monthly COBRA premium for which Employee seeks reimbursement pursuant to this Section 7(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 receive reimbursement form the Company for any portion of the cost of such additional COBRA coverage. Notwithstanding anything set forth herein to the contrary, if and to the extent that the Company may not provide such COBRA Assistance without incurring tax penalties or violating any requirement of the law, the payments and benefits Company shall use its commercially reasonable best efforts to provide to Employee substantially similar assistance in an alternative manner provided that may be the cost of doing so does not exceed the cost that the Company would have incurred had the COBRA Assistance been provided under Sections 3(d)(i) above or 3(d)(ii) below in the manner described above. As used herein, the following terms shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.have the respective meaning set forth below:
Appears in 1 contract
Sources: Employment Agreement (TSR Inc)
Qualifying Termination. If, If your employment is terminated during the Term, you are no longer serving Term without Cause (as the Chief Executive Officer of defined below) by the Company because either (1) the Company has terminated your employment as Chief Executive Officer without “Cause” (defined below), or (2) by you resign as Chief Executive Officer for “Good Reason” (as defined below) (each, a “Qualifying Termination”), the Company shall pay you (or cause to occur, as applicable) occur each of the following:
: (A) pay you cash severance installment payments in an aggregate amount equal to two one hundred percent (200100%) of your annual Base Salary as in effect on your “Qualifying Termination Date” (as defined below) Date (“Cash Severance”) being paid in ten monthly pro-rata installments with the first installment of Cash Severance (in an amount equal to three months of Base Salary) being paid on the 90th day after your “separation from service” (within the meaning of Internal Revenue Code (“Code”) Section 409A (“Section 409A”)) from the Company (“Termination Date 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 being paid on the second first anniversary of the Termination Date;
; (B) pay you a pro-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer General Counsel of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the extent to which the Company achieved the MBO Goals (or the performance standards set forth in the 2010 Management Incentive Plan or any successor incentive plan) during such fiscal year, multiplied by (y) a fraction, the numerator of which is the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 This pro-rated Performance Bonus and any such discretionary bonus described in this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
; (C) accelerate the vesting of your restricted stock units and other time-based vesting equity awards, if any, in accordance with their applicable vesting schedules, as if you had provided an additional twelve (12) months of service to the Company as its General Counsel as of the Termination Date; (D) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 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 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”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the 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 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; provided, and mayhowever, if the Company determines, in its sole discretion, that it cannot pay for tax purposesthe COBRA Benefits without potentially incurring financial cost or penalties under applicable law (including without limitation, be considered income to you;
(D) the portion Section 2716 of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual or cliff vesting is outside of the twenty-four (24) month forward vesting period mentioned in the preceding sentence (each, a “Cliff Vesting Award”Public Health Service Act), then the portion of Company shall, in lieu thereof, pay you a taxable cash amount that it would otherwise have paid for the Cliff Vesting Award thatCOBRA Benefits, but for such Qualifying Termination, would have vested from in monthly installments over 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 same time period, shall automatically vest and become exercisable as of the Qualifying Termination Date. If and to the 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) which payment shall be exercisable by made regardless of whether 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)elect health care continuation coverage; (y) the scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i3(e)(i) above or 3(d)(ii3(e)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.under
Appears in 1 contract
Sources: Employment Agreement (RealD Inc.)
Qualifying Termination. If, during Subject to Section 3(b) below and your continued compliance with the Term, you are no longer serving Confidentiality Agreement (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), if your employment is terminated due to a Qualifying Termination, then, the Company will provide you with: (i) payment of any Base Salary that is earned, due and payable to you up to and including the last day of employment; (ii) payment of any Performance Bonus that was earned, but not yet paid, on the date of termination; (iii) an amount equal to 12 months of your Base Salary then in effect (the “Severance”), payable in substantially equal installments in accordance with the Company’s normal payroll practices over the 12-month period following the termination of your employment (the “Severance Period”), with such installments commencing on the first regular payroll date following the effective date of the 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 minimum period required pursuant to applicable employment or labour standards legislation; (2v) you resign the minimum amount of vacation pay as Chief Executive Officer for “Good Reason” 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) (each, a “Qualifying Termination”), the Company shall pay you (or cause to occur, as applicable) each of the following:
(A) 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-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the 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 the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred;
(C) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 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 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”). In additionshall, to the extent that you are no longer then-unvested, vest (and, as applicable, become exercisable) on an employee accelerated basis as of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 respect to your employment with the Company which continued after the Qualifying Termination) and shall be paid until the 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 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;
(D) shares underlying the portion of the “Options” (defined below), including any additional stock options and other equity compensation incentives granted to you during the Term (collectively, the “Equity Incentives”), award that would have vested (assuming that your had you remained in continuous employment had continued and where vesting is based solely on continued employment) through during the twenty24-four (24) month period following the Qualifying Termination Date; provided, however, that, with respect to any Time Vesting Award that vests on a quarterly basis, the number of Parent shares that become vested in accordance with the foregoing shall automatically vest and become exercisable on be calculated assuming that the Qualifying Termination Datevesting schedule for such award is monthly (rather than quarterly) over the vesting period from the applicable vesting commencement date. In additionNotwithstanding the foregoing, in the event that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 vested from the date of grant of the Cliff Vesting Award through the twenty-four (24) month period following such Qualifying Termination if occurs during the Cliff Vesting Award vested on a monthly basis over its vesting 24-month 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 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control is consummated, all of your then-outstanding Time Vesting Awards shall, to the extent then-unvested, become fully vested (defined belowand, as applicable, exercisable) or merger or acquisition or similar transaction involving the Company; and
(E) the “Accrued Obligations” (defined below) 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 entitlements under the applicable employment or labour standards legislation. For avoidance of doubtabsolute clarity, in no case will you receive less than the minimum payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections.then
Appears in 1 contract
Qualifying Termination. IfUpon a Qualifying Termination, during the TermExecutive will receive the Accrued Payments and, you are no longer serving as provided the Chief Executive Officer remains in compliance with the terms of this Agreement and has met the requirements 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”)Release Obligation, the following severance benefits (the “Severance Benefits”):
(a) The Company shall pay you (or cause to occurprovide the Executive, as applicable) each of severance, the followingfollowing benefits:
(Ai) cash severance installment payments in an aggregate amount equal to two hundred percent twelve (200%12) months of your annual the Executive’s then-current Base Salary as in effect on your “Qualifying Termination Date” (as defined belowdisregarding any reduction that may have given rise to Good Reason) (the “Cash Severance”) with the first installment of Cash ). The 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 will be paid in equal monthly probi-rata weekly installments commencing four months after the Termination Date such that the last installment is paid as a continuation on the second anniversary of the Termination Date;
(B) a pro-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Officer of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the 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 the number of days of the CompanyEmployer’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible regular payroll for a discretionary bonus period of twelve (as determined by 12) months (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 this clause (d)(i)(B) (collectively“Severance Period”), a “Pro-Rated Bonus”) shall be paid to you beginning no later than the 15th day of the third month immediately first regularly-scheduled payroll date following the fiscal year in which sixtieth (60th) day after the Qualifying Termination Executive’s Separation from Service, provided the Executive has occurred;fulfilled the Release Obligation. The Severance will be subject to all applicable withholding and deductions; and
(Cii) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying Termination Date) If Executive is eligible for all and timely elects continued group employee benefit health plan coverage continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 or any state law of similar effect (“COBRA”) to the same extent provided by the Companyfollowing Executive’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 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”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination DateTermination, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying Termination Date) of all other benefits being provided to you immediately prior to the Qualifying Termination Date Executive’s COBRA group health insurance premiums (the “Other BenefitsCOBRA Severance”) for Executive and Executive’s eligible dependents directly to 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 eighteen continuation coverage under COBRA, or (18C) months after the Qualifying Termination Datedate when Executive becomes eligible for substantially equivalent health insurance coverage in connection with new employment or self-employment. If you remain as an employee 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 Code. Notwithstanding the foregoing, if at any time the Company determines, in its sole discretion, that it cannot pay the COBRA premiums without potentially incurring financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Company after a Qualifying Termination DatePublic Health Service Act), the benefits provided by Company will instead pay Executive on the Company last day of each remaining month of the COBRA Payment Period, a fully taxable cash payment equal to you under this Section 3(d)(i)(C) the COBRA premiums for that month, subject to applicable tax withholdings (such amount, the “Special Severance Payment”), which payments 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 Qualifying Termination) and shall be paid 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 (xand, in the case of the Special Severance Payment, such payment will be to Executive, in a lump sum) eighteen (18) months after equal to the aggregate amount of payments that the Company would have paid through such Termination date had such payments instead commenced on the Separation Date; or (y) you become , with the balance of the payments paid thereafter on the schedule described above. If Executive becomes eligible to receive for coverage under another employer’s group health coverage from another employer. You agree (i) at any time either before or during plan, Executive must immediately notify the period Company of time you are receiving benefits such event, and all payments and obligations under this subsection (C)shall cease, 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
(Db) the portion of the “Options” (defined below)If, 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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual 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 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 Bonus Year in which the Executive’s Qualifying Termination Date. If and to the 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) (collectivelyoccurs, the “Performance Awards”)Board determines in good faith that the applicable Bonus objectives and milestones for that Bonus Year have been achieved, then such Equity Incentives shall vest Executive will receive a Bonus, as so determined by the Board and become exercisable pro-rated based on the terms date of the Executive’s Qualifying Termination (the “Bonus Severance”). The Bonus Severance will be paid to the Executive pursuant to the payment timing provisions set forth in the applicable Performance Award AgreementSection 2.2, 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (all applicable deductions and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Company; and
(E) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i) above or 3(d)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsectionswithholdings.
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Qualifying Termination. If, If your employment is terminated during the Term, you are no longer serving Term without Cause (as the Chief Executive Officer of defined below) by the Company because either (1) the Company has terminated your employment as Chief Executive Officer without “Cause” (defined below), or (2) by you resign as Chief Executive Officer for “Good Reason” (as defined below) (each, a “Qualifying Termination”), the Company shall pay you (or cause to occur, as applicable) occur each of the following:
(A) pay you cash severance installment payments in an aggregate amount equal to two one hundred percent (200100%) of your annual Base Salary as in effect on your “Qualifying Termination Date” (as defined below) Date (“Cash Severance”) being paid in ten monthly pro-rata installments with the first installment of Cash Severance (in an amount equal to three months of Base Salary) being paid on the 90th day after your “separation from service” (within the meaning of Internal Revenue Code (“Code”) Section 409A (“Section 409A”)) from the Company (“Termination Date 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 being paid on the second first anniversary of the Termination Date;
(B) pay you a pro-rated cash Performance Bonus, calculated as follows: the product of (x) the Performance Bonus that would have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and that you remained as Chief Executive Financial Officer of the Company through the end of such fiscal year, which Performance Bonus, if any, shall be based on the extent to which the Company achieved the MBO Goals (or the performance standards set forth in the 2010 Management Incentive Plan or any successor incentive plan) during such fiscal year, multiplied by (y) a fraction, the numerator of which is the number of days of the Company’s fiscal year prior to the Qualifying Termination Date and the denominator of which is 365 days. You shall also be eligible for a 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 This pro-rated Performance Bonus and any such discretionary bonus described in this clause (d)(i)(B) (collectively, a “Pro-Rated Bonus”) shall be paid to you no later than the 15th day of the third month immediately following the fiscal year in which the Qualifying Termination has occurred; ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ March 25, 2015
(C) accelerate the vesting of your restricted stock units and other time-based vesting equity awards, if any, in accordance with their applicable vesting schedules, as if you had provided an additional twelve (12) months of service to the Company as its Chief Financial Officer as of the Termination Date;
(CD) the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Qualifying 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 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 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”). In addition, to the extent that you are no longer an employee of the Company after the Qualifying Termination Date, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the 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 Qualifying Termination) and shall be paid until the 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 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; provided, and mayhowever, if the Company determines, in its sole discretion, that it cannot pay for tax purposesthe COBRA Benefits without potentially incurring financial cost or penalties under applicable law (including without limitation, be considered income to you;
(D) the portion Section 2716 of the “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 that any portion of the Equity Incentives vest based on continued employment on an annual or “cliff” basis and the date of any such annual or cliff vesting is outside of the twenty-four (24) month forward vesting period mentioned in the preceding sentence (each, a “Cliff Vesting Award”Public Health Service Act), then the portion of Company shall, in lieu thereof, pay you a taxable cash amount that it would otherwise have paid for the Cliff Vesting Award thatCOBRA Benefits, but for such Qualifying Termination, would have vested from in monthly installments over 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 same time period, shall automatically vest and become exercisable as of the Qualifying Termination Date. If and to the 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 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 standard as of the Qualifying Termination Date, on a pro-rated basis with reference to the Qualifying Termination Date or in any other 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)) which payment shall be exercisable by made regardless of whether 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 scheduled expiration date of the Options or other equity incentives; or (z) the date on which the Options are canceled (and not substituted or assumed) pursuant to a Change in Control (defined below) or merger or acquisition or similar transaction involving the Companyelect health care continuation coverage; and
(E) the “Accrued Obligations” (defined below) as of the Termination Date. For avoidance of doubt, the payments and benefits that may be provided under Sections 3(d)(i3(e)(i) above or 3(d)(ii3(e)(ii) below shall not be provided more than once and if payments and benefits are provided under either one of these subsections, then no payments or benefits will otherwise be provided again under either one of these subsections. For avoidance of doubt, any Cash Severance benefits provided under Sections 3(e)(i) above or 3(e)(ii) below shall be calculated prior to giving effect to any reduction in Base Salary or target Performance Bonus that would give rise to your right to terminate for Good Reason. Additionally, any Cash Severance benefits provided under Sections CONFIDENTIAL ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ March 25, 2015 3(e)(i) above or 3(e)(ii) below shall be calculated prior to giving effect to any elected or agreed upon temporary forbearance from payment of the Base Salary or Performance Bonus.
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Sources: Employment Agreement (RealD Inc.)