Separation Compensation. In exchange for your agreement to the waiver of claims set forth in paragraph 8 below and compliance with all of the terms of this Agreement, including but not limited to paragraphs 4, 5, 6, 7, 8, 9 and 11, the Company agrees to: (a) pay you two hundred percent (200%) of your current base salary, less applicable state and federal payroll deductions, in equal installments for a period of twenty‑four (24) months after the Separation Date in accordance with the Company's standard payroll practices, commencing within fourteen (14) days following the Effective Date (as defined in paragraph 19 below); (b) pay you a lump-sum payment of $28,839.60, which may be used for continued health benefits for you and your dependents under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, with such lump sum payment payable within ten (10) days following the Effective Date; and (c) with respect to your outstanding equity grants: (i) continue the vesting of all time‑based stock options previously granted to you by the Company until November 30, 2013 as if you remained employed by the Company through such date (each of your stock options and the vesting thereof provided by this subparagraph (i) are set forth on Exhibit A hereto). On or after the Effective Date, each of your vested stock options, including such options that vest pursuant to this subparagraph (c), may be exercised at any time until the later of (A) February 28, 2014 or (B) the date provided in the applicable stock option agreement, but in no event later than ten (10) years following the date on which each such stock option was granted; to the extent that a stock option is intended to qualify as an incentive stock option pursuant to Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”) it will cease to do so to the extent required by law; and (ii) all time‑based restricted stock units (“RSU”) that would vest in accordance with their terms on or before June 19, 2014 had you remained employed by the Company will continue to vest as though you remained employed by the Company through such date (each of your time‑based RSUs and the vesting thereof provided by this subparagraph (ii) are set forth on Exhibit A hereto). All performance‑based RSUs that are based on the Company's Total Shareholder Return (“TSR”) relative to the performance of each of the companies in the NASDAQ‑100 Index (or other performance criteria) at the end of applicable performance periods that end on or before June 19, 2014 as set forth in the relevant RSU grant agreements will vest as of the applicable vesting dates set forth in the relevant RSU grant agreements, solely to the extent that the performance periods end on or before June 19, 2014 and the applicable TSR performance metrics for such RSUs for such performance periods are satisfied (each of your performance‑based RSUs and the potential vesting thereof provided by this subparagraph (ii) are set forth on Exhibit A hereto). Such RSUs will be settled within thirty (30) days following the date upon which the above requirements are satisfied date. Any such performance‑based RSUs for which the applicable TSR performance metrics are not satisfied shall be forfeited to the Company. The Company will not exercise any power of negative discretion under any RSU agreement to reduce the number of RSUs that otherwise would vest in accordance with the preceding except to the extent that it exercises its power of negative discretion with respect to all executive officers with performance-based RSUs with substantially similar performance metrics. The remaining unvested time‑based and remaining performance‑based equity grants will expire on the Separation Date and any such unvested equity grants will cease vesting and be immediately forfeited to the Company. You will remain bound by the Company's 2000 Equity Incentive Plan and the applicable equity agreements evidencing your equity awards, except to the extent that they are modified by this Agreement. The stock option exercise methods provided pursuant to your stock options agreements and the Company's 2000 Equity Incentive Plan prior to this Agreement will continue to be available to you to the extent permitted by the terms thereof. By signing below, you acknowledge that you are receiving the separation compensation outlined in this paragraph 3 in consideration for waiving your rights to claims referred to in this Agreement and that you would not otherwise be entitled to the separation compensation. You also acknowledge that if you violate any of the terms of this Agreement, any future payments under paragraph 3 of this Agreement will terminate, any then‑unvested stock options and restricted stock units will terminate and any extended exercisability of stock options will terminate.
Appears in 1 contract
Separation Compensation. In exchange for your agreement to the waiver of claims set forth in paragraph 8 below and compliance with all of the terms of this Agreement, including but not limited to paragraphs 4, 5, 6, 7, 8, 9 and 11, the Company agrees to:
(a) pay you two hundred percent (200%) of your current base salary, less applicable state and federal payroll deductions, in equal installments for a period of twenty‑four (24) months after the Separation Date in accordance with the Company's standard payroll practices, commencing within fourteen (14) days following the Effective Date (as defined in paragraph 19 below);
(b) pay you a lump-sum payment of $28,839.60, which may be used for continued health benefits for you and your dependents under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, with such lump sum payment payable within ten (10) days following the Effective Date; and
(c) with respect to your outstanding equity grants:
(i) continue the vesting of all time‑based stock options previously granted to you by the Company until November 30, 2013 as if you remained employed by the Company through such date (each of your stock options and the vesting thereof provided by this subparagraph (i) are set forth on Exhibit A hereto). On or after the Effective Date, each of your vested stock options, including such options that vest pursuant to this subparagraph (c), may be exercised at any time until the later of (A) February 28, 2014 or (B) the date provided in the applicable stock option agreement, but in no event later than ten (10) years following the date on which each such stock option was granted; Subject to the extent that a stock option is intended to qualify as an incentive stock option pursuant to Section 422 Executive’s execution and delivery of the Internal Revenue Code release of 1986, claims attached hereto as amended Exhibit B (the “CodeRelease of Claims”) it will cease to do so to the extent required by law; and
(ii) all time‑based restricted stock units (“RSU”) that would vest in accordance with their terms on or before June 19, 2014 had you remained employed by the Company will continue to vest as though you remained employed by the Company through such date (each of your time‑based RSUs and the vesting thereof provided by this subparagraph (ii) are set forth on Exhibit A hereto). All performance‑based RSUs that are based on the Company's Total Shareholder Return (“TSR”) relative to the performance of each of the companies in the NASDAQ‑100 Index (or other performance criteria) at the end of applicable performance periods that end on or before June 19, 2014 as set forth in the relevant RSU grant agreements will vest as of the applicable vesting dates set forth in the relevant RSU grant agreements, solely to the extent that the performance periods end on or before June 19, 2014 and the applicable TSR performance metrics for such RSUs for such performance periods are satisfied (each of your performance‑based RSUs and the potential vesting thereof provided by this subparagraph (ii) are set forth on Exhibit A hereto). Such RSUs will be settled within thirty (30) days following the date upon which Termination Date, the above requirements are satisfied date. Any such performance‑based RSUs for which the applicable TSR performance metrics are not satisfied shall be forfeited Executive shall, pursuant to the Company. The Company will not exercise any power terms of negative discretion under any RSU agreement Section 4(c) of the Employment Agreement, become entitled to reduce receive severance pay of $312,085.54 (which is equal to twelve (12) months of the number of RSUs that otherwise would vest Executive’s current base salary), payable in regular installments in accordance with the preceding Company’s general payroll practices over the twelve (12) months following the Termination Date. The first installment of the severance pay shall be paid on the first payroll date following the date on which the Release of Claims is effective and irrevocable and shall include any installments of severance pay that would have been payable had the Release of Claims been effective and irrevocable on the Termination Date.
(b) Following the Termination Date, and except as provided in this Agreement, the Executive shall be entitled to (x) vested employee benefits under the Company’s employee benefit plans to which the Executive is entitled as a former employee (provided, that for the avoidance of doubt, the benefits set forth in Section 2 of this Agreement are in lieu of, and not in addition to, any severance or termination benefits payable under any plan or arrangement sponsored or agreed to by the Company or of its affiliates), (y) reimbursement of any business expenses properly incurred prior to the Termination Date under the Company’s expense reimbursement policy and (z) any benefits (e.g., COBRA continuation coverage) to which he is entitled under applicable law. Should the Executive elect COBRA coverage, the Company agrees to reimburse executive up to a maximum of $4,000 (the “Limited Reimbursement Amount”) for Executive’s documented out of pocket cost incurred in connection with the Company’s Executive Physical program taken at the Mayo Clinic. It is expressly understood and agreed that should Executive undertake such Executive Physical the Company shall have no liability whatsoever for any costs, fees or other expenses incurred by the Executive in connection therewith except to the extent that it exercises its power of negative discretion with respect to all executive officers with performance-based RSUs with substantially similar performance metrics. The remaining unvested time‑based and remaining performance‑based equity grants will expire on the Separation Date and any such unvested equity grants will cease vesting and be immediately forfeited to the Company. You will remain bound by the Company's 2000 Equity Incentive Plan and the applicable equity agreements evidencing your equity awards, except to the extent that they are modified by this Agreement. The stock option exercise methods provided pursuant to your stock options agreements and the Company's 2000 Equity Incentive Plan prior to this Agreement will continue to be available to you to the extent permitted by the terms thereof. By signing below, you acknowledge that you are receiving the separation compensation outlined in this paragraph 3 in consideration for waiving your rights to claims referred to in this Agreement and that you would not otherwise be entitled to the separation compensation. You also acknowledge that if you violate any of the terms of this Agreement, any future payments under paragraph 3 of this Agreement will terminate, any then‑unvested stock options and restricted stock units will terminate and any extended exercisability of stock options will terminateLimited Reimbursement Amount.
Appears in 1 contract
Separation Compensation. In exchange for your Executive’s agreement to the waiver of claims set forth in paragraph 8 5 below and compliance with all of the terms of this Agreement, including but not limited to paragraphs 4, 5, 6, 7, 8, 9 1 and 112 above, the Company agrees to:
(a) pay you two hundred percent Executive twelve (200%12) months of your Executive’s current base salary, less applicable state and federal payroll deductionssalary plus Executive’s current target bonus (assuming a 100% achievement threshold), in equal installments for a period of twenty‑four (24) months single lump sum on the first business day after the Separation Date in accordance with the Company's standard payroll practices, commencing within fourteen sixtieth (1460th) days day following the Effective Date (as defined in paragraph 19 below)Termination Date;
(b) pay you Executive a lump-pro rata portion of Executive’s target bonus through the Termination Date, payable in a single lump sum payment no later than two and one half months following the Termination Date and when other target bonuses are generally paid to senior executives of $28,839.60, which may be used for continued the Company;
(c) if Executive validly elects to continue coverage under the Company’s health benefits for you and your dependents insurance plan under the Consolidated Omnibus Budget Reconciliation Act of 19851975, as amendedamended (“COBRA”) and consistent with the terms of COBRA and the Company’s group health insurance plan, with the Company will pay the insurance premiums to continue Executive’s existing group health benefits for Executive for twelve (12) months following the Termination Date, provided that, if the Company determines in its discretion that it cannot provide such continued group health benefits without potentially violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), the Company shall in lieu thereof provide to you a taxable lump sum payment payable within ten in an amount equal to twelve (1012) days following months of such continued group health benefits, less any gross premiums previously paid under this paragraph 4(c), which payment shall be made regardless of whether you elect COBRA continuation coverage and which cash payment shall be paid out in a lump sum at the Effective Datesame time as the payment described in paragraph 4(a), or, if later, at the time of such determination by the Company; and
(cd) with respect to your Executive’s outstanding equity grants:grants (other than any awards outstanding under the Company’s 2014 Employee Stock Purchase Plan, which shall be governed exclusively by the terms of those awards):
(i) continue twenty-five percent (25%) of the vesting of all time‑based stock options previously granted shares initially subject to you by the Company until November 30, 2013 as if you remained employed by the Company through such date (each of your stock options Executive’s equity grants will accelerate and vest on the vesting thereof provided by this subparagraph (i) are set forth on Exhibit A hereto). On or after the Effective Termination Date, each of your vested stock options, including such options that vest pursuant to this subparagraph (c), may be exercised at any time until the later of (A) February 28, 2014 or (B) the date provided in the applicable stock option agreement, but in no event later than ten (10) years following the date on which each such stock option was granted; to the extent that a stock option is intended to qualify as an incentive stock option pursuant to Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”) it will cease to do so to the extent required by law; and;
(ii) all time‑based restricted stock units (“RSU”) that would vest in accordance with their terms if, and so long as, Executive continues to serve on or before June 19the Board following the Termination Date, 2014 had you remained employed by the Company will Executive shall be eligible to continue to vest as though you remained employed by in an additional twenty-five percent (25%) of the Company through such date (shares initially subject to each of your time‑based RSUs and the vesting thereof provided by this subparagraph Executive’s equity grants (ii) are set forth on Exhibit A hereto). All performance‑based RSUs including any awards that are originally vested only based on the Company's Total Shareholder Return (“TSR”) relative to the performance of each of the companies in the NASDAQ‑100 Index (or other performance criteria) at the end of applicable performance periods that end on or before June 19continued employment rather than service), 2014 as set forth in the relevant RSU grant agreements will vest as of the applicable vesting dates set forth in the relevant RSU grant agreements, solely to the extent that the performance periods end on or before June 19, 2014 and the applicable TSR performance metrics for such RSUs for such performance periods are satisfied (each of your performance‑based RSUs and the potential vesting thereof provided by this subparagraph (ii) are set forth on Exhibit A hereto). Such RSUs will be settled within thirty (30) days following the date upon which the above requirements are satisfied date. Any such performance‑based RSUs for which the applicable TSR performance metrics are not satisfied shall be forfeited to the Company. The Company will not exercise any power of negative discretion under any RSU agreement to reduce with the number of RSUs that otherwise would vest in accordance with the preceding except shares vesting on each vesting date pursuant to the extent that it exercises its power original vesting schedule of negative discretion with respect to all executive officers with performanceeach such grant as if Executive’s employment had not terminated on the Termination Date and the acceleration under paragraph 4(d)(i) had not occurred, provided that, in the event of a Change in Control (as defined in the Offer Letter) while Executive serves on the Board, any such then-based RSUs with substantially similar performance metrics. The unvested equity awards remaining outstanding shall immediately accelerate and become exercisable;
(iii) the remaining unvested time‑based and remaining performance‑based shares subject to each of Executive’s equity grants will expire on the Separation Termination Date and any such unvested equity grants will cease vesting and be immediately forfeited to the CompanyCompany without consideration or payment therefore. You It is acknowledged and agreed that the acceleration under paragraph 4(d)(i) and the continued vesting eligibility under paragraph 4(d)(ii) shall be evaluated on a grant-by-grant basis and shall be limited to the maximum number of shares initially underlying each grant;
(iv) all vested options held by Executive on the Termination Date and all other options that vest pursuant to paragraph 4(d)(i) and paragraph 4(d)(ii) above shall be exercisable for the three (3) months following the later of (i) December 31, 2017, if Executive’s termination as a director is on or before December 31, 2017, or (ii) the date of Executive’s termination as a director, if Executive’s termination as a director occurs after December 31, 2017, provided that, in each case, upon a Change of Control, the exercisability of options shall be subject to the terms of any definitive agreement effecting or evidencing the Change of Control;
(v) Executive will remain bound by the Company's 2000 Equity Incentive Plan ’s equity incentive plans and the applicable equity agreements evidencing your Executive’s equity awards, except to the extent that they are expressly modified by this Agreement. The stock option exercise methods provided pursuant to your stock options agreements and the Company's 2000 Equity Incentive Plan prior to this Agreement will continue to be available to you to the extent permitted by the terms thereof. By signing below, you acknowledge Executive acknowledges that you are Executive is receiving the separation compensation outlined in this paragraph 3 4 in consideration for waiving your Executive’s rights to claims referred to in this Agreement and that you Executive would not otherwise be entitled to the separation compensation. You Executive also acknowledge acknowledges that if you violate Executive violates any of the terms of this Agreement, any future payments under paragraph 3 4 of this Agreement will terminate, any then‑unvested stock options and restricted stock units will terminate and any extended exercisability of stock options will terminate.
Appears in 1 contract
Sources: Separation Agreement (GoPro, Inc.)
Separation Compensation. In exchange for your agreement to the waiver of claims set forth in paragraph 8 below and compliance with all of the terms of this Agreement, including but not limited to paragraphs 4, 5, 6, 7, 8, 9 and 11below, the Company agrees to:
(a) pay you two three hundred percent fifty thousand dollars (200%) of your current base salary$350,000), less applicable state and federal payroll deductions, in equal installments for a period of twenty‑four which constitutes twelve (2412) months after of your regular base salary (such payment will be made in pro rata installments over twelve (12) months through the Company’s payroll system);
(b) reimburse any premium payments you make to continue your existing health insurance coverage under COBRA (or pursuant to another means of obtaining coverage substantially comparable to the coverage provided to you prior to the termination) for up to twelve (12) months following the Separation Date; provided that the Company’s obligation to make these payments will cease immediately if you become eligible for equivalent health benefits at the expense of another employer; and
(c) accelerate the vesting of the equity grants previously granted to you by the Company as to one-half of the number of unvested shares as of the Separation Date (as reflected in accordance the attached vesting schedule), with the Company's standard payroll practices, commencing within fourteen (14) days following such acceleration being effective on the Effective Date (as defined in paragraph 19 17 below);
(b) pay you a lump-sum payment . The remaining unvested equity grants will expire on the Separation Date and any unvested shares of $28,839.60, which may Common Stock will be used for continued health benefits for you and your dependents under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, with such lump sum payment payable within ten (10) days following the Effective Date; and
(c) with respect immediately forfeited to your outstanding equity grants:
(i) continue the vesting of all time‑based stock options previously granted to you by the Company until November 30, 2013 as if you remained employed by pursuant to the Company through such date (each terms of your stock options the applicable Stock Grant Agreement and the vesting thereof provided by this subparagraph (i) are set forth on Exhibit A hereto)Stock Transfer Agreement. On or after the Effective Date, each of your vested stock options, including such options that vest pursuant to this subparagraph (c), d) may be exercised at any time until the later of (A) February 28August 16, 2014 2012, or (B) the date provided earlier in the applicable stock option agreementevent of certain corporate transactions described in Section 9.2 of the Company’s 2003 Stock Option Plan. Although it is under no obligation to do so, but in no event later than ten (10) years following the date on which each such stock option was granted; Company may, at its sole discretion and pursuant to an agreement signed by both parties, elect to extend the period of exercise until November 16, 2012. To the extent that a stock option is intended to qualify as an incentive stock option Incentive Stock Option pursuant to Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”) it will cease to do so to the extent required by law; and
(ii) all time‑based restricted stock units (“RSU”) that would vest in accordance with their terms on or before June 19, 2014 had you remained employed by the Company will continue to vest as though you remained employed by the Company through such date (each of your time‑based RSUs and the vesting thereof provided by this subparagraph (ii) are set forth on Exhibit A hereto). All performance‑based RSUs that are based on the Company's Total Shareholder Return (“TSR”) relative to the performance of each of the companies in the NASDAQ‑100 Index (or other performance criteria) at the end of applicable performance periods that end on or before June 19, 2014 as set forth in the relevant RSU grant agreements will vest as of the applicable vesting dates set forth in the relevant RSU grant agreements, solely to the extent that the performance periods end on or before June 19, 2014 and the applicable TSR performance metrics for such RSUs for such performance periods are satisfied (each of your performance‑based RSUs and the potential vesting thereof provided by this subparagraph (ii) are set forth on Exhibit A hereto). Such RSUs will be settled within thirty (30) days following the date upon which the above requirements are satisfied date. Any such performance‑based RSUs for which the applicable TSR performance metrics are not satisfied shall be forfeited to the Company. The Company will not exercise any power of negative discretion under any RSU agreement to reduce the number of RSUs that otherwise would vest in accordance with the preceding except to the extent that it exercises its power of negative discretion with respect to all executive officers with performance-based RSUs with substantially similar performance metrics. The remaining unvested time‑based and remaining performance‑based equity grants will expire on the Separation Date and any such unvested equity grants will cease vesting and be immediately forfeited to the Company. You will remain bound by the Company's 2000 Equity Incentive Plan and ’s 2003 Stock Option Plan, the applicable equity agreements Stock Option Agreements, Stock Grant Agreement, and Stock Transfer Agreement evidencing your equity awards, except . The payments described in subparagraph (a) above will commence on the 60th day after the Separation Date and will be retroactive to the extent that they are modified by Separation Date provided the release is effective pursuant to paragraph 17 of this Agreement. The stock option exercise methods provided pursuant to your stock options agreements and the Company's 2000 Equity Incentive Plan prior to this Agreement will continue to be available to you to the extent permitted by the terms thereof. By signing below, you acknowledge that you are receiving the separation compensation outlined in this paragraph 3 in consideration for waiving your rights to claims referred to in this Agreement and that you would not otherwise be entitled to the separation compensation. You also further acknowledge that this Agreement satisfies fully the Company’s obligations to provide you with severance benefits under your June 17, 2008 offer letter. Notwithstanding the foregoing, if you violate fail to materially comply with any provisions of the terms confidentiality agreements described in paragraph 6 of this Agreement or the nondisparagement provisions set forth in paragraph 9 of this Agreement, any future payments under then you will have no further rights to the benefits described in this paragraph 3 of and the Company shall retain all other remedies under this Agreement will terminate, any then‑unvested stock options and restricted stock units will terminate and any extended exercisability of stock options will terminateAgreement.
Appears in 1 contract
Separation Compensation. In exchange Employee’s employment during the Transition Period will continue to be on an at-will basis. If at any time during the Transition Period, Employee terminates his employment for your agreement any reason or if his employment is terminated by the Company for “Cause” (as defined below), Employee’s Equity Awards will immediately cease vesting and, upon payment of any accrued but unpaid Base Salary and paid time off, Employee will have no further rights to any payments or benefits from the Company, other than pursuant to the waiver Indemnification Agreement or as otherwise required under applicable law. If, prior to the Final Date of Employment, Employee’s employment is terminated by the Company without Cause (such termination date, the “Separation Date”), and subject to Employee’s execution of an effective release of claims set forth substantially in paragraph 8 below the form attached as Exhibit C and continued compliance with all of the terms of this Agreement, including but not limited restrictive covenants set forth or referred to paragraphs 4, 5, 6, 7, 8, 9 in Section F below and 11Exhibit D hereto, the Company agrees towill provide Employee with the following:
(a) pay you two hundred percent (200%) of your current base salary, less applicable state and federal payroll deductions, in equal installments for a period of twenty‑four (24) months after 1. From the Separation Date through December 31, 2006 (the “Severance Period”), the Company will continue to pay Employee his Base Salary in semi-monthly payments, subject to withholding for customary payroll and income taxes.
2. During the Severance Period, the Company shall, at Company’s expense, provide Employee and his eligible dependents with medical, dental and vision insurance benefit coverage in accordance with the Company's standard payroll practices, commencing within fourteen (14) days following the Effective Date (as defined in paragraph 19 below);
(b) pay you a lump-sum payment requirements of $28,839.60, which may be used for continued health benefits for you and your dependents under the Consolidated Omnibus Budget Reconciliation Act of 19851985 (“COBRA Coverage”), providing Employee timely executes and delivers all necessary COBRA Coverage election documentation which will be sent to Employee promptly after Employee’s Separation Date. Thereafter, if Employee wishes to continue COBRA Coverage, Employee will be required to pay all requisite premiums for such continued coverage.
3. The vesting of Employee’s unvested Equity Awards shall be accelerated such that, as amendedof the Separation Date, Employee will be vested in that number of shares subject to the Equity Awards as he would have been had his employment with such lump sum payment payable within ten (10) days following the Effective Date; and
(c) with respect to your outstanding equity grants:
(i) continue the vesting of all time‑based stock options previously granted to you by the Company continued until November 30December 31, 2013 as if you remained employed by 2006. Employee shall have the Company through such date (each of your stock options and the vesting thereof provided by this subparagraph (i) are time period set forth on Exhibit A hereto). On or after the Effective Date, each of your vested stock options, including such options that vest pursuant to this subparagraph (c), may be exercised at any time until the later of (A) February 28, 2014 or (B) the date provided in the applicable stock option agreementagreement and plan, but in no event later than ten (10) years following the date on which each such to exercise any stock option was granted; to the extent options that a stock option is intended to qualify are vested as an incentive stock option pursuant to Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”) it will cease to do so to the extent required by law; and
(ii) all time‑based restricted stock units (“RSU”) Separation Date. Employee acknowledges that would vest in accordance with their terms on or before June 19, 2014 had you remained employed generally options issued by the Company will continue expire within ninety (90) days or three (3) months after termination of employment, which in Employee’s case shall be within ninety (90) days or three (3) months after the Separation Date. Upon their expiration, such options may no longer be exercised and automatically become void and of no further force or effect. If Employee shall fail to vest as though you remained employed by the Company through such date (each of your time‑based RSUs and the vesting thereof provided by this subparagraph (ii) are set forth on Exhibit A hereto). All performance‑based RSUs that are based on the Company's Total Shareholder Return (“TSR”) relative to the performance of each comply in all material respects with any of the companies in the NASDAQ‑100 Index (or other performance criteria) at the end of applicable performance periods that end on or before June 19, 2014 as restrictive covenants set forth in or referred to in Section F below and Exhibit D hereto, and if such failure shall continue for a period of 10 days following written notice to Employee from the relevant RSU grant agreements will vest as Company of such failure, the Company shall be permitted, along with all other remedies available to the Company to correct or compensate for such a violation, to immediately cease making any further payments under this Section D, to immediately cease providing any further benefits under this Section D and to confirm that all Equity Awards shall immediately expire (with any unvested shares of the applicable vesting dates set forth in the relevant RSU grant agreements, solely Company’s common stock subject to the extent that the performance periods end on or before June 19, 2014 and the applicable TSR performance metrics for such RSUs for such performance periods are satisfied (each of your performance‑based RSUs and the potential vesting thereof provided by this subparagraph (ii) are set forth on Exhibit A hereto). Such RSUs will Equity Awards to be settled within thirty (30) days following the date upon which the above requirements are satisfied date. Any such performance‑based RSUs for which the applicable TSR performance metrics are not satisfied shall be forfeited returned to the Company. The Company will not exercise any power of negative discretion under any RSU agreement ), and to reduce the number of RSUs that otherwise would vest in accordance with the preceding except require Employee to return to the extent that it exercises its power of negative discretion with respect Company any amounts or benefits previously provided to all executive officers with performance-based RSUs with substantially similar performance metrics. The remaining unvested time‑based and remaining performance‑based equity grants will expire on the Separation Date and any such unvested equity grants will cease vesting and be immediately forfeited him pursuant to this Section D (other than payments pursuant to the Company. You will remain bound by the Company's 2000 Equity Incentive Plan and the Indemnification Agreement or repayments prohibited under applicable equity agreements evidencing your equity awards, except to the extent that they are modified by this Agreement. The stock option exercise methods provided pursuant to your stock options agreements and the Company's 2000 Equity Incentive Plan prior to this Agreement will continue to be available to you to the extent permitted by the terms thereof. By signing below, you acknowledge that you are receiving the separation compensation outlined in this paragraph 3 in consideration for waiving your rights to claims referred to in this Agreement and that you would not otherwise be entitled to the separation compensation. You also acknowledge that if you violate any of the terms of this Agreement, any future payments under paragraph 3 of this Agreement will terminate, any then‑unvested stock options and restricted stock units will terminate and any extended exercisability of stock options will terminatelaw).
Appears in 1 contract
Sources: Employment Transition & Release Agreement (Openwave Systems Inc)
Separation Compensation. In exchange for your agreement Subject to the waiver execution of an effective release of claims set forth substantially in paragraph 8 below and the form attached as Exhibit B (as described further in Section K below), his compliance in all material respects with all of the terms restrictive covenants set forth or referred to in Section F below, compliance in all material respects with the provisions of this AgreementSection M, and compliance with the conditions referred to in Section B above including but not limited to paragraphs 4, 5, 6, 7, 8, 9 and 11without limitation good faith assistance during the Transition Period in the transitioning of key customer relationships, the Company agrees towill provide Employee with the following:
1. From January 1, 2005 through December 31, 2005 (a) the “Severance Period”), the Company will pay you two hundred percent (200%) of your current base salary, less applicable state and federal payroll deductions, in equal installments for a period of twenty‑four Employee twenty-four (24) months after semi-monthly payments of $12,500, which in the Separation Date aggregate equals $300,000. The Company shall make such semi-monthly payments through its regular payroll system on or about the 15th and last day of each calendar month, with the first such payment occurring on January 15, 2005, and the last such payment on December 31, 2005. Customary payroll taxes and income tax withholding will be deducted from such payments.
2. The Company shall, at Company’s expense, provide Employee and his eligible dependents with medical, dental and vision insurance benefit coverage in accordance with the Company's standard payroll practices, commencing within fourteen (14) days following the Effective Date (as defined in paragraph 19 below);
(b) pay you a lump-sum payment requirements of $28,839.60, which may be used for continued health benefits for you and your dependents under the Consolidated Omnibus Budget Reconciliation Act of 19851985 (“COBRA Coverage”) for a period of twelve months commencing January 1, as amended2005, with providing Employee timely executes and delivers all necessary COBRA Coverage election documentation which will be sent to Employee promptly after Employee’s Final Date of Employment. Thereafter, if Employee wishes to continue COBRA Coverage, Employee will be required to pay all requisite premiums for such lump sum payment payable within ten (10) days following the Effective Date; andcontinued coverage.
(c) with respect to your outstanding equity grants:
(i) continue the vesting of all time‑based 3. Employee shall not vest in any stock options previously options, restricted stock, or any other stock awards granted to you Employee by the Company until November 30after the Final Date of Employment. In addition, 2013 as if you remained employed by Employee shall have the Company through such date (each of your stock options and the vesting thereof provided by this subparagraph (i) are time period set forth on Exhibit A hereto). On or after the Effective Date, each of your vested stock options, including such options that vest pursuant to this subparagraph (c), may be exercised at any time until the later of (A) February 28, 2014 or (B) the date provided in the applicable stock option agreementagreement and plan, but in no event later than ten (10) years following the date on which each such to exercise any stock option was granted; to the extent options that a stock option is intended to qualify are vested as an incentive stock option pursuant to Section 422 of the Internal Revenue Code Final Date of 1986, as amended (the “Code”) it will cease to do so to the extent required by law; and
(ii) all time‑based restricted stock units (“RSU”) Employment. Employee acknowledges that would vest in accordance with their terms on or before June 19, 2014 had you remained employed generally options issued by the Company will continue to vest as though you remained employed by the Company through such date expire within ninety (each of your time‑based RSUs and the vesting thereof provided by this subparagraph (ii) are set forth on Exhibit A hereto). All performance‑based RSUs that are based on the Company's Total Shareholder Return (“TSR”) relative to the performance of each of the companies in the NASDAQ‑100 Index (or other performance criteria) at the end of applicable performance periods that end on or before June 19, 2014 as set forth in the relevant RSU grant agreements will vest as of the applicable vesting dates set forth in the relevant RSU grant agreements, solely to the extent that the performance periods end on or before June 19, 2014 and the applicable TSR performance metrics for such RSUs for such performance periods are satisfied (each of your performance‑based RSUs and the potential vesting thereof provided by this subparagraph (ii) are set forth on Exhibit A hereto). Such RSUs will be settled within thirty (3090) days following the date upon or three (3) months after termination of employment, which the above requirements are satisfied date. Any such performance‑based RSUs for which the applicable TSR performance metrics are not satisfied in Employee’s case shall be forfeited to within ninety (90) days or three (3) months after the CompanyFinal Date of Employment. Upon their expiration, such options may no longer be exercised and automatically become void and of no further force or effect.
4. The Company will pay Employee that amount of his bonus under the 2004 Openwave Systems Inc. variable pay plan applicable to Employee’s position (with a quarterly target amount set at sixty percent (60%) of your quarterly salary, that is, $45,000) for the quarter ending December 31, 2004 (the “VPP”) that Employee would have earned (based strictly on actual client group performance as measured by bookings and contribution margin but not exercise based on any power metrics and objectives for Q4 2004) had he continued his employment as an active employee through December 31, 2004. Payment of negative discretion under any RSU agreement to reduce the number of RSUs that otherwise would vest earned bonus will be made at such time and in accordance with the preceding except terms and conditions of the VPP. Failure to comply in any material respect with any of the extent that it exercises its power of negative discretion with respect to all executive officers with performance-based RSUs with substantially similar performance metrics. The remaining unvested time‑based and remaining performance‑based equity grants will expire on the Separation Date and any such unvested equity grants will cease vesting and be immediately forfeited to the Company. You will remain bound by the Company's 2000 Equity Incentive Plan and the applicable equity agreements evidencing your equity awards, except to the extent that they are modified by this Agreement. The stock option exercise methods provided pursuant to your stock options agreements and the Company's 2000 Equity Incentive Plan prior to this Agreement will continue to be available to you to the extent permitted by the terms thereof. By signing below, you acknowledge that you are receiving the separation compensation outlined restrictive covenants set forth in this paragraph 3 in consideration for waiving your rights to claims or referred to in this Agreement and that you would not otherwise be entitled Section F below shall permit the Company, along with all other remedies available to the separation compensation. You also acknowledge that if you violate Company to correct or compensate for such a violation, to immediately cease making any of the terms of this Agreement, any future further payments under paragraph 3 of this Agreement will terminate, Section D and to require Employee to repay to the Company any then‑unvested stock options and restricted stock units will terminate and any extended exercisability of stock options will terminate.amounts previously paid to him pursuant to this Section D.
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Sources: Employment Transition & Release Agreement (Openwave Systems Inc)
Separation Compensation. In exchange for your agreement to the waiver of claims set forth in paragraph 8 below and compliance with all of the terms of this Agreement, including but not limited to paragraphs 4, 5, 6, 7, 8, 9 and 11below, the Company agrees to:
(a) pay you two three hundred percent fifty thousand dollars (200%) of your current base salary$350,000), less applicable state and federal payroll deductions, in equal installments for a period of twenty‑four which constitutes twelve (2412) months after of your regular base salary (such payment will be made in pro rata installments over twelve (12) months through the Company’s payroll system);
(b) reimburse any premium payments you make to continue your existing health insurance coverage under COBRA (or pursuant to another means of obtaining coverage substantially comparable to the coverage provided to you prior to the termination) for up to twelve (12) months following the Separation Date; provided that the Company’s obligation to make these payments will cease immediately if you become eligible for equivalent health benefits at the expense of another employer; and
(c) accelerate the vesting of the equity grants previously granted to you by the Company as to one-half of the number of unvested shares as of the Separation Date (as reflected in accordance the attached vesting schedule), with the Company's standard payroll practices, commencing within fourteen (14) days following such acceleration being effective on the Effective Date (as defined in paragraph 19 17 below);
(b) pay you a lump-sum payment . The remaining unvested equity grants will expire on the Separation Date and any unvested shares of $28,839.60, which may Common Stock will be used for continued health benefits for you and your dependents under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, with such lump sum payment payable within ten (10) days following the Effective Date; and
(c) with respect immediately forfeited to your outstanding equity grants:
(i) continue the vesting of all time‑based stock options previously granted to you by the Company until November 30, 2013 as if you remained employed by pursuant to the Company through such date (each terms of your stock options the applicable Stock Grant Agreement and the vesting thereof provided by this subparagraph (i) are set forth on Exhibit A hereto)Stock Transfer Agreement. On or after the Effective Date, each of your vested stock options, including such options that vest pursuant to this subparagraph (c), d) may be exercised at any time until the later of (A) February 28July 23, 2014 2012, or (B) the date provided earlier in the applicable stock option agreementevent of certain corporate transactions described in Section 9.2 of the Company’s 2003 Stock Option Plan. Although it is under no obligation to do so, but in no event later than ten (10) years following the date on which each such stock option was granted; Company may, at its sole discretion and pursuant to an agreement signed by both parties, elect to extend the period of exercise until November 16, 2012. To the extent that a stock option is intended to qualify as an incentive stock option Incentive Stock Option pursuant to Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”) it will cease to do so to the extent required by law; and
(ii) all time‑based restricted stock units (“RSU”) that would vest in accordance with their terms on or before June 19, 2014 had you remained employed by the Company will continue to vest as though you remained employed by the Company through such date (each of your time‑based RSUs and the vesting thereof provided by this subparagraph (ii) are set forth on Exhibit A hereto). All performance‑based RSUs that are based on the Company's Total Shareholder Return (“TSR”) relative to the performance of each of the companies in the NASDAQ‑100 Index (or other performance criteria) at the end of applicable performance periods that end on or before June 19, 2014 as set forth in the relevant RSU grant agreements will vest as of the applicable vesting dates set forth in the relevant RSU grant agreements, solely to the extent that the performance periods end on or before June 19, 2014 and the applicable TSR performance metrics for such RSUs for such performance periods are satisfied (each of your performance‑based RSUs and the potential vesting thereof provided by this subparagraph (ii) are set forth on Exhibit A hereto). Such RSUs will be settled within thirty (30) days following the date upon which the above requirements are satisfied date. Any such performance‑based RSUs for which the applicable TSR performance metrics are not satisfied shall be forfeited to the Company. The Company will not exercise any power of negative discretion under any RSU agreement to reduce the number of RSUs that otherwise would vest in accordance with the preceding except to the extent that it exercises its power of negative discretion with respect to all executive officers with performance-based RSUs with substantially similar performance metrics. The remaining unvested time‑based and remaining performance‑based equity grants will expire on the Separation Date and any such unvested equity grants will cease vesting and be immediately forfeited to the Company. You will remain bound by the Company's 2000 Equity Incentive Plan and ’s 2003 Stock Option Plan, the applicable equity agreements Stock Option Agreements, Stock Grant Agreement, and Stock Transfer Agreement evidencing your equity awards, except . The payments described in subparagraph (a) above will commence on the 60th day after the Separation Date and will be retroactive to the extent that they are modified by Separation Date provided the release is effective pursuant to paragraph 17 of this Agreement. The stock option exercise methods provided pursuant to your stock options agreements and the Company's 2000 Equity Incentive Plan prior to this Agreement will continue to be available to you to the extent permitted by the terms thereof. By signing below, you acknowledge that you are receiving the separation compensation outlined in this paragraph 3 in consideration for waiving your rights to claims referred to in this Agreement and that you would not otherwise be entitled to the separation compensation. You also further acknowledge that this Agreement satisfies fully the Company’s obligations to provide you with severance benefits under your June 17, 2008 offer letter. Notwithstanding the foregoing, if you violate fail to materially comply with any provisions of the terms confidentiality agreements described in paragraph 6 of this Agreement or the nondisparagement provisions set forth in paragraph 9 of this Agreement, any future payments under then you will have no further rights to the benefits described in this paragraph 3 of and the Company shall retain all other remedies under this Agreement will terminate, any then‑unvested stock options and restricted stock units will terminate and any extended exercisability of stock options will terminateAgreement.
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