Severance Payments. 6.1 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person. (A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs. (B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof). (C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive). 6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive. 6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person. (i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 2 contracts
Sources: Change in Control Severance Agreement (J Jill Group Inc), Change in Control Severance Agreement (J Jill Group Inc)
Severance Payments. 6.1 If In the Executive’s event the employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) Employee by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment Employer is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee end of the Board Term, for any reason other than the reasons set forth in the preamble to this SECTION 6, Employer shall be paid obligated to pay Employee severance (the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries"SEVERANCE") with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, an amount equal to the sum of (i) any incentive compensation which has been allocated one (1) year's Salary (at the rate in effect at the date of termination) or awarded to Salary for the Executive for a completed year or other measuring period preceding remaining balance of the Date Term at the date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise)termination, and whichever sum is greater PLUS (ii) a pro rata portion an amount equal to the Date of Termination product of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in fractional number of years for which the Date Severance is payable pursuant to (i) above TIMES the average of Termination occursall annual incentive bonuses paid to Employee by Employer for the past two (2) years, treating any and all performance goals under regardless of whether such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed bonuses were paid to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive Employee pursuant to this Section 6.1(C) Employment Agreement or otherwise; PROVIDED, HOWEVER, any Severance payable by Employer hereunder shall be reduced subject to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (conditions and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.adjustments:
(i) If any payment or benefit made available to Severance payable hereunder shall be payable in equal weekly installments (each a "SEVERANCE PAYMENT") commencing on the Executive first Friday following the termination;
(ii) Severance Payments payable by Employer hereunder shall be reduced and offset (the "SEVERANCE OFFSET RIGHT") on a dollar for dollar basis in connection with a Change in Control (including, without limitation, any payment made pursuant an amount equal to any long-term sums earned and/or received by Employee for any services directly or indirectly provided to a third party such as salary, incentive planspayments, stock option bonus or equity participation right plansconsulting fees during the period during which the Severance Payments are to be paid to Employee (the "SEVERANCE PERIOD"). During the Severance Period, Employee shall immediately give Employer written notice upon Employee's engagement by a third party for Employee to directly or indirectly provide any type of employment, advice or consulting services.
(iii) or termination Severance Payments for the first nine (9) months of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is Severance Period shall not be subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposedSeverance Offset Right.
Appears in 2 contracts
Sources: Executive Employment Agreement (Tristar Corp), Executive Employment Agreement (Tristar Corp)
Severance Payments. 6.1 If (a) Upon the Executive’s employment is terminated following occurrence of a Change Triggering Event, Company shall pay to Employee the amounts set forth below, which shall be payable in Control and during one lump sum payment within thirty (30) days of the term of this AgreementTriggering Event, unless such termination is otherwise specifically provided for in the Plan or the subsections below:
(i) by all amounts specifically set forth in Article II of the Company for Cause, Plan; and
(ii) by reason an amount equal to the product of death or Disability or one and one half (1.5) times the Employee’s Annual Base Salary; and
(iii) an amount equal to the maximum yearly contribution the Company could make to the Employee’s account in the LESCO, Inc. Salary Savings Plan and Trust, or any successor qualified defined contribution retirement plan, based on the amount contributed to such retirement plan by the Executive without Good Reason, and provided that Employee during the seven-day revocation period described in Section 6.6 has expired without revocation year of the Release and Waiver by Triggering Event; and
(iv) to the Executiveextent not theretofore paid or provided, the Company shall timely pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments provide to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board other amounts or benefits required to be paid to or provided or which the Executive (oris eligible to receive under any plan, if the Executive’s annual base salary is not presented for approval at the Compensation Committee levelprogram, then as otherwise established by J. ▇▇▇▇ policy or one practice or contract or agreement of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company and its affiliated companies (such other amounts and benefits shall pay be hereinafter referred to as the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof“Other Benefits”).
(Cb) For a twenty-four (24) month period after Notwithstanding anything to the Date contrary in the Plan or the Agreement, if any portion of Terminationthe compensation or benefits payable to or on behalf of the Employee under the Plan, or under any other agreement with, or plan of, the Company shall arrange (in the aggregate “Total Payments”) would constitute an “excess parachute payment” under Code Section 280G, then the payments to provide the Executive with life, disability, accident and health insurance benefits substantially similar be made to the life, disability, accident and health insurance benefits which Employee under the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) Plan shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net value of the Excise Tax aggregate Total Payments that Employee is entitled to receive shall equal be one dollar ($1) less than the total maximum amount of all Change in Control Payments that Employee may receive without becoming subject to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Code Section 4999 4999, or which the Company may pay without loss of deduction under Code Section 280G. The calculation of such potential excise tax liability, as well as the Code method in which the compensation reduction is applied, shall be conducted and any similar tax that may hereafter determined by the Company’s independent accountants whose determinations shall be imposedbinding on the Parties.
Appears in 2 contracts
Sources: Employment Retention Agreement (Lesco Inc/Oh), Employment Retention Agreement (Lesco Inc/Oh)
Severance Payments. 6.1 If the Executive’s With respect to any Transferred Employee whose employment is terminated following a Change in Control and during by Purchaser for any reason other than cause on or before the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the sevensix-day revocation period described in Section 6.6 has expired without revocation month anniversary of the Release and Waiver by the Executiveapplicable Transfer Date, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company Purchaser shall pay to such Transferred Employee the Executive a lump sum amount of severance payment, in cash, equal compensation and benefits to two times which such Transferred Employee is entitled under the Executive’s annual base salary as approved by the Compensation Committee severance plan or arrangement of the Board Purchaser applicable to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval similarly situated employees of Purchaser at the Compensation Committee leveltime of such termination; provided, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiariesthat this Section 8.7(c) shall not apply to a Transferred Employee who enters into any agreement with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision Purchaser that provides for a severance payment of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s kind upon termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i)employment, in which case the Company such agreement shall so advise the Executivecontrol with respect to any severance payment obligations of Purchaser, if any); and provided, further, in each case that such payments Transferred Employee shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control credited for service with Seller and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period its Affiliates as described in Section 6.6 has expired without revocation of 8.7(d). In addition to and notwithstanding any provision herein to the Release contrary, while Sections 8.7(a) and Waiver by the Executive(b) require that offers be made to all Branch Employees, if a Branch Employee does not receive an offer from Purchaser in compliance with Section 8.7(b) and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The ExecutiveBranch Employee’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment Seller and its Affiliates is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company by Seller or its applicable Affiliate after the consummation of which will constitute a Change the transactions contemplated by this Agreement (and in Control no event later than two (2) months following the Closing Date (or, in the case of any Leave Recipient, two (2) months following any later potential Transfer Date contemplated by Section 8.7(a)(ii)) or if such later date as may be required to comply with applicable Law (including the Executive terminates his employment with Good Reason prior Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar state or local Law)), then Purchaser shall reimburse Seller, within thirty (30) days of receipt of an invoice from Seller, for the costs of any severance compensation and benefits (including the costs incurred during any notice period or pay in lieu of notice and the employer portion of any taxes) payable by Seller to a Change such Branch Employee under the applicable Seller severance plan or arrangement, provided, however, that, in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition case of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of each such Person.
(i) If any payment or benefit made available terminated Branch Employee, such reimbursement amount shall be limited to the Executive costs of any severance compensation and benefits (including the costs incurred during any notice period or pay in connection with a Change in Control (including, without limitation, lieu of notice and the employer portion of any payment made pursuant taxes) payable under the severance plan or arrangement applicable to any long-term incentive plans, stock option or equity participation right plans) or termination similarly situated employees of Purchaser as of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject date hereof as previously provided to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposedSeller.
Appears in 2 contracts
Sources: Purchase and Assumption Agreement (Summit Financial Group, Inc.), Purchase and Assumption Agreement (MVB Financial Corp)
Severance Payments. 6.1 If In the Executive’s employment is terminated following event of a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period Termination described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive6 above, the Company Employee shall pay the Executive the payments described in this Section 6.1 be entitled to receive (the “Severance Payments”) in addition to the payments Employee’s unpaid salary, accrued vacation pay and benefits described unreimbursed business expenses through and including the date of Termination) whichever of the following, A. or B., that the Employee shall select (which selection shall be by written notice from the Employee to the Employer, and in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment the event the Employee fails to so select, the Employee shall be deemed to have been terminated following selected B.):
A. For a Change period of twelve (12) consecutive calendar months after the Employee’s Termination, he will not, without the Employer’s written consent, either directly or indirectly engage in, make any investment in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change have any interest in Control without Cause at the direction of a Person who has entered into an agreement any business in competition with the Company Employer’s business that is located or conducting business in any county in which the consummation Employer conducted business on the date of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) Termination. In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executiveconsideration thereof, the Company Employee shall pay be entitled to the Executive receive a lump sum severance payment, payment in cash, cash no later than thirty (30) business days after the date of Termination equal to two the sum of:
i. an amount equal to one (1) times (a) the ExecutiveEmployee’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving effect immediately prior to the Notice date of Termination, plus (b) the cash value of all other compensation (determined by the full amount or face value of the compensation award without reduction due to any restrictions, vesting periods or possible unasserted future clawbacks that may apply to the compensation), other the annual base salary, awarded to the Employee during the year immediately preceding the date of Termination; and
ii. an amount equal to eighteen (18) multiplied by the amount of the monthly COBRA premium for family coverage in effect under the Employer’s group health plan on the date of Termination (without giving effect to any reduction in such benefits subsequent to provided, however, if upon the issuance of future regulatory or other guidance, the foregoing formula would constitute or create a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration discriminatory insured plan of the seven-day revocation period described Employer in Section 6.6 without revocation violation of Sections 2716(a) and 2716(b) of the Release and Waiver Public Health Service Act (as added by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6Section 1001(5) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control Patient Protection and during the term of this AgreementAffordable Care Act, unless such termination is as amended by Section 10101(d) thereof) (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control PaymentDiscriminatory Insured Plan”) is subject to the Excise Tax (as hereinafter defined), the Company Employer and the Employee agree to amend such formula in a manner that shall pay provide substantially the same economic benefit to the Executive additional amounts (the “Gross Up Amounts”) such Employee but shall not be a Discriminatory Insured Plan. The parties recognize that the total Employer will have no adequate remedy at law for breach by the Employee of the restrictions imposed by this Section 7A. and that the Employer could suffer substantial and irreparable damage if he breaches any of these restrictions. For this reason, the Employee agrees that, if the Employee breaches any of the restrictions imposed under this Section 7.A., the Employer may seek a temporary and/or permanent injunction to restrain any breach or threatened breach of these restrictions or a decree of specific performance, mandamus, or other appropriate remedy to enforce compliance with the restrictions imposed under this Section 7.A.
B. The amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposedOne Dollar ($1.00).
Appears in 2 contracts
Sources: Change in Control Agreement (Civista Bancshares, Inc.), Change in Control Agreement (Civista Bancshares, Inc.)
Severance Payments. 6.1 If 3.1 Subject to Section 3.2 hereof, if the ExecutiveEmployee’s employment is terminated following a Change in Control and during the term of this AgreementTerm, unless such termination is other than (iA) by the Company for Cause, (iiB) by reason of death or Disability Disability, or (iiiC) by the Executive Employee without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, then the Company shall pay the Executive Employee the payments amounts, and provide the Employee the benefits, described in this Section 6.1 3.1 (the “Severance Payments”) ), in addition to the any payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s to which the Employee is entitled with respect to employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction Date of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such PersonTermination.
(A) In lieu of any further salary payments to the Executive Employee for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the ExecutiveEmployee, the Company shall pay to the Executive Employee a lump sum severance payment, in cash, equal to two one-half times the Executivesum of (i) the Employee’s annual base salary as approved in effect immediately prior to the Date of Termination, and (ii) the Employee’s target annual bonus under any annual bonus or incentive plan maintained by the Compensation Committee Company in respect of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the fiscal year in which occurs the Date of Termination occursTermination.
(B) For the sixth month period immediately following the Date of Termination, the Company shall arrange to provide the Employee and his dependents life, disability, accident and health insurance benefits substantially similar to those provided to the Employee and his dependents immediately prior to the Date of Termination, at no greater after-tax cost to the Employee than the after-tax cost to the Employee immediately prior to such date. Benefits otherwise receivable by the Employee pursuant to this Section 3.1(B) shall be reduced to the extent benefits of the same type are received by or made available to the Employee during the six month period following the Employee’s termination of employment (and any such benefits received by or made available to the Employee shall be reported to the Company by the Employee); provided, however, that the Company shall reimburse the Employee for the excess, if any, of the after tax cost of such benefits to the Employee over such cost immediately prior to the Date of Termination.
(C) Notwithstanding any provision of any Bonus Planannual incentive plan to the contrary, the Company shall pay to the Executive a lump sum Employee an amount, in cash, equal to the sum of (i) any unpaid incentive compensation which has been allocated or awarded to the Executive Employee for a completed fiscal year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant plan and which, as of the Date of Termination, is contingent only upon the continued employment of the Employee to Section 5.2 hereof or otherwise)a subsequent date, and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to Amount the Executive under all Bonus Plans Employee would have earned with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying the award that the Employee would have earned for such maximum bonus amount year, based upon the actual level of achievement of the performance goals established with respect to such award, by a fraction, the numerator of which is fraction obtained by dividing the number of days in full months and any fractional portion of a month during such year (or portion thereof) which elapsed to through the Date of Termination by twelve (12).
(A) Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Employee (including any payment or benefit received in connection with a Change in Control or the termination of the Employee’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the Severance Payments, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the Excise Tax, then, after taking into account any reduction in the Total Payments provided by reason of section 280G of the Code in such other plan, arrangement or agreement, the portion of the Total Payments that does not constitute deferred compensation within the meaning of section 409A of the Code shall first be reduced and the denominator portion of the Total Payments that does constitute deferred compensation within the meaning of section 409A of the Code shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (A) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (B) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments).
(B) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which is the number of days Employee shall have waived at such time and in such year manner as not to constitute a “payment” within the meaning of section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to the Employee, does not constitute a “parachute payment” within the meaning of section 280G(b)(2) of the Code (including by reason of section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the Base Amount allocable to such reasonable compensation, and (iii) the value of any non-cash benefit or portion thereof)any deferred payment or benefit included in the Total Payments shall be determined in accordance with the principles of sections 280G(d)(3) and (4) of the Code.
(C) For a twenty-four (24) month period after At the Date of Terminationtime that payments are made under this Agreement, the Company shall arrange to provide the Executive Employee with lifea written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, disabilitywithout limitation, accident and health insurance benefits substantially similar to any opinions or other advice the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually Company has received by from Tax Counsel or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment other advisors or consultants (and any such benefits actually received by the Executive opinions or advice which are in writing shall be reported attached to the statement). If the Employee objects to the Company’s calculations, the Company by shall pay to the Executive)Employee such portion of the Severance Payments (up to 100% thereof) as the Employee determines is necessary to result in the proper application of subsection A of this Section 3.2.
6.2 The payments 3.3 Subject to the provisions of Section 12 hereof, the payment provided for in subsections (A) and (C) of Section 6.1 (other than Section 6.1(C)) 3.1 hereof shall be made not later than the fifth (5th) business day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the ExecutiveTermination.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 2 contracts
Sources: Severance Agreement (Covisint Corp), Severance Agreement (Covisint Corp)
Severance Payments. 6.1 If (i) In the Executive’s event of termination of the Employee by the Company without cause or termination by Employee pursuant to Section 4(b)(i) hereof, the Company shall: (A) pay to Employee an amount equal to two times the Employee's annual salary in effect at the time of the termination (not giving effect to any salary reduction giving rise to such termination) and (B) either continue the Employee's health (medical and dental) insurance as provided in Section 5(c) for two years following the date of such termination to the extent permitted under applicable law and the Company's group health insurance policies or reimburse the Employee for his cost for comparable coverage to the extent such coverage cannot be provided under such policies. Such severance pay shall be payable in equal monthly installments over the two-year period beginning on the date of termination of this Agreement and shall be subject to tax withholding to the extent required under applicable law. Notwithstanding anything herein to the contrary, the Company shall not be required to continue to provide Employee with health benefits under this paragraph if Employee becomes entitled to receive benefits substantially similar to those which Employee otherwise would have been entitled to receive hereunder. This severance pay and continuation of health benefits contemplated by this paragraph are agreed by the parties hereto to be in full satisfaction and compromise of any claim arising out of any termination of Employee's employment is terminated without cause or pursuant to Section 4(b)(i).
(ii) Notwithstanding anything herein to the contrary, in the event of termination of the Employee by the Company without cause within the two-year period following a Change in Control and during the term or termination by Employee under Section 4(b)(i) or (ii) of this Agreement, unless then in lieu of the severance pay and benefit continuation provided in Section 4(d)(i) above, the Company shall: (A) pay to Employee an amount equal to two and one-half times the Employee's annual salary in effect at the time of the termination (not giving effect to any salary reduction giving rise to such termination) plus two and one-half times the greater of (1) the average bonus received by the Employee for the three fiscal years preceding such termination is (i) or such shorter time if the Employee has been employed by the Company for Causeless than three years) or (2) the bonus earned by Employee for the most recently ended fiscal year, (iiB) either continue the Employee's health (medical and dental) insurance as provided in Section 5(c) for two and one-half years following the date of such termination to the extent permitted under applicable law and the Company's group health insurance policies or reimburse the Employee for his cost for comparable coverage to the extent such coverage cannot be provided under such policies and (C) pay to Employee the prorated portion of the greater of (1) the average bonus received by reason of death the Employee for the three fiscal years preceding such termination (or Disability such shorter time if Employee has been employed by the Company for less than three years) or (iii2) the bonus earned by Employee for the Executive without Good Reason, most recently ended fiscal year. Such severance pay shall be payable in equal monthly installments over the two and provided that one-half year period beginning on the seven-day revocation period described in Section 6.6 has expired without revocation date of termination of this Agreement and shall be subject to tax withholding to the Release and Waiver by extent required under applicable law. Notwithstanding anything herein to the Executivecontrary, the Company shall pay the Executive the payments described in not be required to continue to provide Employee with health benefits under this Section 6.1 (the “Severance Payments”) in addition paragraph if Employee becomes entitled to receive benefits substantially similar to those which Employee otherwise would have been entitled to receive hereunder. Notwithstanding anything herein to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executivecontrary, the Company shall not be required to pay to any amount (the Executive a lump sum severance payment"Excess Amount") that, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee upon advice of the Board to Company's independent tax advisor or counsel, would be paid to the Executive (orin excess of 2.99 times Employee's Base Amount, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiariesdefined in Section 280G(b)(3) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(iof 1986, as amended (the "Code"), in which case and, therefore, would trigger the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts tax (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “"Excise Tax” shall mean the tax ") imposed by Section 4999 of the Code Code, unless Employee agrees to be bound by the noncompetition provisions of Section 7 hereof for one additional year following the termination. Payment of the Excess Amount shall be consideration for the Employee agreeing to be bound by such noncompetition provision for such additional year. Election by the Employee to receive the Excess Amount and any similar tax to be bound by the noncompetition provision shall be given in writing to the Company not later than five days after the date on which the Company notifies Employee in writing that an Excess Amount may hereafter be imposedpayable absent such agreement, and, upon receipt of such notice, the Company shall be obligated to pay the Excess Amount to Employee.
Appears in 2 contracts
Sources: Employment Agreement (Compdent Corp), Employment Agreement (Compdent Corp)
Severance Payments. 6.1 If a. Except as provided in Section 5(b), upon the Executivetermination of Employee’s employment by the Company other than for Cause prior to a Change in Control, the Employee shall be entitled to an amount equal to the aggregate of _one__ times: (i) the annual rate of base salary then being paid to the Employee, plus (ii) the average of the past three years short term bonus pay, plus (iii) the Company’s portion of 12 months’ premiums under any health, disability and life insurance plan or program in which the Employee was entitled to participate immediately prior to the Termination Date (the aggregated amount, the “Severance Pay”), which shall be paid to Employee by the Company over a period of 12 months from the Termination Date in accordance with the Company’s regular payroll cycle, commencing on the first regular payroll date of the Company that occurs more than 60 days after the Termination Date (and including any installment that would have otherwise been paid on regular payroll dates during the period of 60 days following the Termination Date), provided the conditions specified in Section 5(c) have been satisfied.
b. Notwithstanding Section 5(a) and subject to the limitation in Section 5(e), if (i) the Employee’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Employee for Good Reason if Reason, and (ii) the Executive’s employment is terminated prior to Termination Date occurs within 24 months immediately following a Change in Control Control, the Employee shall receive two times the Severance Pay calculated in accordance with Section 5(a), which shall be paid to Employee by the Company in a lump sum on the later of 60th day following the Termination Date or the closing on the event constituting the Change in Control, provided the conditions specified in Section 5(c) have been satisfied.
c. Notwithstanding the foregoing provisions of Section 5(a) and (b), the Company will not be obligated to make any payments to or on behalf of Employee under Section 5(a) and (b), as applicable, unless (i) Employee signs a release of claims in favor of the Company in a form as prepared by the Company (the “Release”) and delivered to Employee no later than five business days after the Termination Date, (ii) all applicable consideration periods and rescission periods provided by law with respect to the Release have expired without Cause at Employee rescinding the direction of a Person who has entered into an agreement Release, and (iii) Employee is in strict compliance with the Company terms of this Agreement as of the consummation dates of which the payments. The cessation of these payments will constitute be in addition to, and not as an alternative to, any other remedies at law or in equity available to the Company, including without limitation the right to seek specific performance or an injunction.
d. If, when the Employee’s termination of employment occurs, the Employee is a Change in Control or specified employee within the meaning of section 409A of the Code, and if the Executive terminates his employment Severance Pay would be considered deferred compensation under section 409A of the Code, and finally if an exemption from the six-month delay requirement of section 409A(a)(2)(B)(i) of the Code is not available, the Employee’s Severance Pay payments for the first six months following separation from service shall be paid to the Employee in a single lump sum on the first day of the seventh month after the month in which the Employee’s separation from service occurs.
e. In the event that the vesting, acceleration and payment of any equity awards or other compensation or benefits, together with Good Reason prior all other payments and the value of any benefit received or to be received by the Employee under this Agreement would result in all or a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction portion of such Person.
(Apayment being subject to excise tax under Section 4999 of the Code, then the amounts due under Section 5(b) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, that the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to Employee shall be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of either (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination full payment or (ii) such lesser amount determined by the death Company in accordance with this Section 5(e) that would result in no portion of the Executive.
6.3 If payment being subject to excise tax under Section 4999 of the Executive’s Code (the “Excise Tax”), whichever of the foregoing amounts, taking into account the applicable Federal, state, and local employment is terminated taxes, income taxes, and the Excise Tax, results in the receipt by the Employee, on an after-tax basis, of the greatest amount of the payment notwithstanding that all or some portion of the payment may be taxable under Section 4999 of the Code. In the event the amounts due under Section are reduced, the amounts shall be reduced in the following order of priority: first, with respect to any amount that does not constitute the “deferral of compensation” under Section 409A of the Code and regulations promulgated thereunder, disregard the acceleration in the time of payment and then disregard the acceleration of vesting as a result of a Change in Control and during second, with respect to any amount that constitutes the term “deferral of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in compensation” under Section 6.6 has expired without revocation 409A of the Release Code and Waiver by regulations promulgated thereunder, disregard the Executive, acceleration in the time of payment and any such exercise before then disregard the seven-day revocation period has expired without revocation acceleration of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following vesting as a result of a Change in Control first with respect to Company funded amounts and then the Employee’s deferrals, in each case only to the extent necessary to satisfy (ii) above. All determinations required to be made under this Section 5(e) shall be made by a nationally recognized accounting firm that is the Company without Cause or by the Executive with Good Reason if the ExecutiveCompany’s employment is terminated outside auditor immediately prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with event triggering the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is payments that are subject to the Excise Tax (the “Accounting Firm”). The Company shall cause the Accounting Firm to provide detailed supporting calculations of its determinations to the Company and Employee. Notice must be given to the Accounting Firm within 15 business days after an event entitling Employee to an amount due under this Agreement. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The Accounting Firm’s determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). For the purposes of all calculations under Section 280G of the Code and the application of this Section 5.1, all determination as hereinafter definedto present value shall use 120 percent of the applicable Federal rate (determined under Section 1274(d) of the Code) compounded based on the nature of the payment, as in effect on the Date of Termination, but if not otherwise specified, compounded on a semiannual basis. The determination by the Accounting Firm shall be final and binding on the Company and the Employee.
f. If Employee’s employment with the Company is terminated by the Company for Cause or for any reason not covered by Section 5(a) or 5(b), then the Company shall pay to Employee only his base salary and any accrued but unused vacation or PTO earned through the Executive additional amounts Termination Date.
g. In addition to the benefits otherwise provided in Section 5, the Employee shall be entitled to the following benefits and payments upon the Employee’s termination of employment: (i) the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net payment of the Excise Tax shall equal Employee’s base salary and any other form or type of compensation earned, vested and payable through the total amount Date of Termination; (ii) the right to receive all Change in Control Payments benefits to which the Executive would have been entitled if Employee is vested on the Excise Tax had not been imposed. For purposes Date of this Section 6.4, Termination in accordance with the term “Excise Tax” shall mean terms under the tax imposed by Section 4999 Company pension and welfare benefit plans or any successor of the Code such plan and any similar tax that may hereafter be imposedother plan or agreement relating to retirement benefits; and (iii) the right to exercise and to receive all rights in which the Employee is vested on the Date of Termination, in accordance with the terms of all awards under any Company stock purchase and stock incentive plans or programs, or any successor to any such plans or programs.
Appears in 2 contracts
Sources: Executive Severance Agreement (Alerus Financial Corp), Executive Severance Agreement (Alerus Financial Corp)
Severance Payments. 6.1 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i1) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason At any time prior to a Change in Control (determined by treating a Potential Change as defined below), in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
that (A) In lieu of Executive's employment hereunder is terminated by the Company at any further time for any reason except (i) for Cause (as defined below) or (ii) due to Executive's death or Disability (as defined below), or (B) Executive terminates his own employment hereunder for Good Reason (as defined below), then, in either such event, Executive shall be entitled to receive, and the Company shall be obligated to pay, Executive's base salary payments under Section 3(a) (without regard to any bonuses or extraordinary compensation) then being paid to him on the Termination Date as salary continuation (pursuant to the Executive Company's normal payroll procedures) for periods subsequent a period equal to six (6) consecutive months following the Date Termination Date. In the event of Termination and in lieu of any severance benefit otherwise payable to the Executive's death during such salary continuation period, the Company shall pay the sum of the present value of all remaining payments (using a 5% discount rate) in a single payment to Executive's surviving spouse, if any, or if there is no surviving spouse, to Executive's estate within 60 days of his death. Such severance payments shall be subject to Sections 10 and 11 hereof. Prior to a Change in Control, in the event that Executive's employment is terminated through notice of non-renewal as of the end of the Initial Term of Employment (pursuant to Section 4) or any one-year Renewal Term, Executive shall be entitled to receive, and the Company shall be obligated to pay, Executive's base salary under Section 3(a) (without regard to any bonuses or extraordinary compensation) then being paid to him on the Termination Date as salary continuation (pursuant to the Company's normal payroll procedures) for each month following his Termination Date, not to exceed six months, that Executive is (A) not in violation of the confidential information, non-competition and other covenants of Sections 10 and 11 hereof and (B) not employed by another employer, as determined by the Company.
(2) At any time after a lump sum severance paymentChange in Control (as defined below), in cashthe event that (A) Executive's employment hereunder is terminated by the Company at any time for any reason except (i) for Cause (as defined below) or (ii) due to Executive's death or Disability (as defined below), or (B) Executive terminates his own employment hereunder for Good Reason (as defined below in this Section 6(c)), then, in either such event, Executive shall be entitled to receive, and the Company shall be obligated to pay, Executive's base salary under Section 3(a) (without regard to any bonuses or extraordinary compensation except as provided below in this paragraph) then being paid to him on the Termination Date as salary continuation (pursuant to the Company's normal payroll procedures) for a period equal to two times twelve (12) consecutive months following the Termination Date, plus an additional single sum payment equal to one-half of Executive’s annual base salary as approved by 's target bonus (pursuant to Section 3(b)) for the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year Bonus Year in which the Date termination occurred, which bonus shall be payable within 30 days from the Termination Date. In the event of Termination occurs.
(B) Notwithstanding any provision of any Bonus PlanExecutive's death during such salary continuation period, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of the present value of all remaining payments in a single payment (iusing a 5% discount rate) any incentive compensation which has been allocated to Executive's surviving spouse, if any, or awarded if there is no surviving spouse, to Executive's estate within 60 days of his death. After a Change in Control, in the Executive for a completed year or other measuring period preceding event that the Date Company terminates Executive's employment through notice of Termination under any such Bonus Plan but has not yet been paid nonrenewal as of the end of the Initial Term of Employment (pursuant to Section 5.2 hereof 4) or otherwise)any one-year Renewal Term, Executive shall be entitled to receive, and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange be obligated to provide pay, Executive's base salary under Section 3(a) (without regard to any bonuses or extraordinary compensation) then being paid to him on the Executive with life, disability, accident and health insurance benefits substantially similar Termination Date as salary continuation (pursuant to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(CCompany's normal payroll procedures) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) consecutive months following the Termination Date.
(3) Except as otherwise specifically provided in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(ithis Section 6(b), in which case the Company shall so advise the Executive, and such severance payments shall be made on in addition to, and shall not reduce or offset, any other payments that are due to Executive from the earlier Company (or any other source) or under any other agreements, except that severance payments hereunder shall offset any severance benefits otherwise due to Executive under any severance pay plan or program maintained by the Company that covers its employees generally. The provisions of (ithis Section 6(b) six (6) months after the Date shall supersede any conflicting provisions of Termination this Agreement but shall not be construed to curtail, offset or (ii) the death of the limit Executive.
6.3 If the Executive’s employment is terminated following 's rights to any other payments, whether contingent upon a Change in Control and during the term (as defined below) or otherwise, under this Agreement or any other agreement, contract, plan or other source of this Agreement, unless such termination is payment.
(i4) by A "CHANGE IN CONTROL" of the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have occurred if any of the following shall have taken place: (A) any "person" (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act")) other than ▇▇▇▇▇▇ ▇▇▇▇ and his Affiliates (defined below), taken together, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act, or any successor provisions thereto), directly or indirectly, of securities of the Company representing thirty-five percent (35%) or more of the combined voting power of the Company's then-outstanding voting securities; (B) the approval by the stockholders of the Company of a reorganization, merger, or consolidation, in each case with respect to which persons who were stockholders of the Company immediately prior to such reorganization, merger, or consolidation do not, immediately thereafter, own or control more than fifty percent (50%) of the combined voting power entitled to vote generally in the election of directors of the reorganized, merged or consolidated Company's then outstanding securities in substantially the same proportion as their ownership of the Company's outstanding voting securities prior to such reorganization, merger or consolidation; (C) a liquidation or dissolution of the Company or the sale of all or substantially all of the Company's assets; (D) in the event any person is elected by the stockholders of the Company to the Board who has not been terminated nominated for election by a majority of the Board or any duly appointed committee thereof; or (E) following the election or removal of directors, a majority of the Board consists of individuals who were not members of the Board two (2) years before such election or removal, unless the election of each director who is not a director at the beginning of such two-year period has been approved in advance by directors representing at least a majority of the directors then in office who were directors at the beginning of the two-year period. The Board, in its discretion, may deem any other corporate event affecting the Company to be a "Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such PersonControl" hereunder.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 2 contracts
Sources: Employment Agreement (Lexicon Genetics Inc/Tx), Employment Agreement (Lexicon Genetics Inc/Tx)
Severance Payments. 6.1 If the Executive’s Employee terminates his employment is terminated following within two years after a Change in of Control and during the term of this Agreementpursuant to Section 7(d), unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive Company terminates his the Employee’s employment with Good Reason prior for any reason other than Cause (as defined in Section 7(a)) either within three months before or within two years after a Change of Control, the Employee shall be entitled to a Change severance payment under this Section 7(e) in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, an amount equal to two 2.99 times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding Employee’s annual base salary in effect at the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by or, if greater, the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for Employee’s largest annual base salary rate in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and effect during the term Term of this Agreement, unless such termination is (i) by the Company for Cause, plus (ii) by reason an amount equal to 90% of death or Disability or the base salary determined in Section 7(e)(i) of this Agreement. Subject to payment timing requirements of subsection (iiif) below which may cause a delay in the payments to the Employee, this severance payment shall be made to the Employee in a single lump sum within 10 business days of the date of the Employee’s termination of employment. Notwithstanding the preceding sentence, if the independent accountants acting as auditors for the Company on the date of the Change of Control determine that such single payment, together with other compensation received by the Executive without Good ReasonEmployee that is contingent on a Change of Control, all outstanding stock options held by would constitute “excess parachute payments” within the Executive for the purchase meaning of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation 280G of the Release and Waiver by Internal Revenue Code of 1986, as amended (the Executive“Code”), and (as well as any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause successor or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (includingsimilar sections thereof), without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax excise tax provisions of Code Section 4999 (as hereinafter definedwell as any successor or similar sections thereof), the Company Employee shall pay be entitled to receive from the Company, in addition to any other amounts payable hereunder, a lump sum payment equal to 100% of such excise tax, plus an amount equal to the federal and state income tax, FICA, and Medicare taxes (based upon Employee’s projected marginal income tax rates) on such lump sum payment. The amounts under the preceding sentence shall be paid to Executive additional amounts (as soon as may be practicable after such final determination is made and in all events shall be made no later than the “Gross Up Amounts”) such that end of Executive’s taxable year next following his taxable year in which he remitted the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposedrelated taxes.
Appears in 2 contracts
Sources: Employment Agreement (American Woodmark Corp), Employment Agreement (American Woodmark Corp)
Severance Payments. 6.1 If In the Executive’s employment is terminated following a Change in Control event of an Involuntary Termination, and during after the term of this Agreement, unless such termination is (i) timely signing by the Employee or his estate of a release of all claims against the Company for Cause, (ii) by reason of death or Disability or (iii) by and its Affiliates that is in form and substance satisfactory to the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the ExecutiveCompany, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition provide to the payments and benefits described in Sections 5.1 and 5.2 hereof Employee or his estate a severance benefit (but not Section 5.3 hereof). The Executive’s employment shall be deemed subject to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reasonapplicable withholding requirements) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.equal to:
(Aa) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum an aggregate amount, payable in cashtwelve (12) equal monthly installments, subject to applicable withholdings, equal to the sum of (i) any incentive compensation which has been allocated or awarded an amount equal to the Executive for a completed year or other measuring period preceding the Date of Termination under any twelve (12) months’ Base Salary (at such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and Employee’s then effective Base Salary) plus (ii) a pro rata portion an amount equal to the Date average bonus paid to the Employee for the three year period prior to date of Termination such Involuntary Termination; and
(b) all of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occursEmployee’s accrued but unpaid vacation, treating any sick and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of personal days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received that Company policy provides for payment of such accrued but unpaid amounts. provided, however, that in the event of a breach by the Employee of any provision of Section 3, 4, or made available 5 hereof that, in the case of any such breach that is capable of being cured, is not cured within 30 days after receipt of written notice from the Company, the Employee or his estate, as applicable, shall have no right to receive any form of compensation, remuneration, payment under any note issued by the Executive without cost during Company in respect of any equity repurchase, severance or other benefit hereunder, except that the twenty-four Employee or his estate shall be entitled (24subject to applicable withholding requirements) month period following to receive any unpaid Base Salary earned up through the Executivedate of the Employee’s termination of employment (Service, subject to applicable withholdings, and any such benefits actually received by the Executive shall be reported all accrued but unpaid vacation, sick and personal days to the Company by extent that the Executive).
6.2 The Company’s policy provides for payment of such accrued and unpaid amounts; and provided, further, however, that in the event the Employee obtains alternative employment while receiving severance payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than hereunder, the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless Employee will promptly notify the Company determines in good faith that of such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case alternative employment and the Company shall so advise the Executivewill have no further obligation to pay, and such the Employee will have no further right to receive, any severance payments shall be made on the earlier of (i) six (6) months hereunder from and after the Date of Termination or (ii) date the death of the ExecutiveEmployee commenced such alternative employment.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 2 contracts
Sources: Non Disclosure, Non Competition, Non Hiring, Non Solicitation and Severance Agreement (CIFC Corp.), Non Disclosure, Non Competition, Non Hiring, Non Solicitation and Severance Agreement (CIFC Corp.)
Severance Payments. 6.1 If Within thirty (30) days after the Executive’s employment is terminated following effective date of a Change in Control and during the term of this Agreement, unless such termination is (iTermination Without Cause pursuant to Paragraph 7(b) by the Company hereof or a Termination for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior pursuant to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good ReasonParagraph 7(c) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executivehereof, the Company shall pay to the Executive Employee a lump sum severance paymentamount, in cashwithout discount, equal to two times the Executive’s annual base salary greater of (a) the Base Salary which would have been payable to the Employee for the remainder of the Term of this Agreement, (b) the Base Salary which would have been payable to the Employee had this Agreement remained in effect for a period of one year after such termination of employment, assuming the case of (a) or (b) that Employee's Base Salary remained at the rate in effect prior to such termination. In addition, all share options and restricted share awards shall accelerate and vest as approved of the date of termination. If in the opinion of tax counsel ("Tax Counsel") selected by the Compensation Committee Employee and reasonably acceptable to the Company, the Employee has or will receive any compensation or recognize any income (whether or not pursuant to this Agreement or any plan or other arrangement of the Board to be paid to Company and whether or not the Executive Employee's employment with the Company has terminated) which constitute an "excess parachute payment" within the meaning of Section 280G(b)(1) of the Internal Revenue Code of 1986, as amended (or, if "Code") (or for which a tax is otherwise payable under section 4999 of the Executive’s annual base salary is not presented for approval at the Compensation Committee levelCode), then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, Employee an additional amount (the "Additional Amount") equal to the sum of (i) any incentive compensation which has been allocated all taxes payable by the Employee under Code section 4999 with respect to all such excess parachute payments (or awarded payments otherwise subject to tax under 4999 of the Executive for a completed year or other measuring period preceding Code) and the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise)Additional Amount, and plus (ii) a pro rata portion to all federal, state and local income taxes payable by the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans Employee with respect to the year (or any portion thereof) Additional Amount. Upon written request for payment by the Employee, detailing in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed fashion reasonably acceptable to the Date of Termination and Company the denominator of which is amount payable by the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after Company as the Date of TerminationAdditional Amount, the Company shall arrange have 15 days to provide verify the Executive with life, disability, accident and health insurance benefits substantially similar to calculations presented by the life, disability, accident and health insurance benefits which Employee (the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason"Verification Period"). Benefits otherwise receivable by After the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration end of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined)Verification Period, the Company shall have 15 days to pay the Employee the Additional Amount. If the Company disputes the submission materials submitted by the Employee, written notification of the dispute shall be provided to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net Employee within three days of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 end of the Code Verification Period. Thereafter, a third-party, acceptable to both the Company and any similar tax that may hereafter the Employee, shall be imposedselected to resolve the dispute and shall sign as preparer of the Employee's return. Notwithstanding the foregoing, all payments under this Paragraph 8 shall be made prior to or on the date of the Employee's termination.
Appears in 2 contracts
Sources: Executive Employment Agreement (Presidio Golf Trust), Executive Employment Agreement (Presidio Golf Trust)
Severance Payments. 6.1 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, without Cause or (ii) by reason of death or Disability or (iii) by the Executive without for Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation addition to payment of the Release and Waiver by the ExecutiveAccrued Compensation, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition also be obligated to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following make a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction series of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary monthly payments to the Executive for periods subsequent to the Date a period of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving months immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by Termination Dates; provided, further, that the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments first monthly payment shall be made on the earlier first payroll period after the sixtieth (60th) day following the Termination Date and shall include payment of any amounts that would otherwise be due prior thereto. Each monthly payment shall be equal to one-twelfth (1/12th) of the sum of (x) the Executive’s annual Base Salary, as in effect on the Termination Date, plus (y) the amount equal to the (i) six (6) months after sum of the Date of Termination or Executive’s Bonus for the three prior years divided by (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in fullthree. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall also be null permitted, to the extent permitted under applicable law, to continue to participate at the Company’s expense in all benefit and void. The Executive’s employment shall be deemed to have been terminated following a Change insurance plans, coverage and programs in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated which he was participating immediately prior to the Termination Date, for a Change in Control without Cause at period of one (1) year from the direction of a Person who has entered into an agreement Termination Date (Executive will reasonably cooperate with the Company to facilitate the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction continuation of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (benefits, including, without limitation, electing “COBRA” coverage as required by the Company); provided, for the avoidance of doubt, that the Company may modify the continuation coverage contemplated by this Section 5(b) to the extent reasonably necessary to avoid the imposition of any payment made pursuant excise taxes on the Company for failure to any long-term incentive plans, stock option or equity participation right plans) or termination comply with the nondiscrimination requirements of the Executive’s employment following a Change in Control Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay extent applicable) including instead making cash payments to the Executive additional amounts (over the “Gross Up Amounts”) same period in monthly installments in an amount equal to the Company’s portion of the monthly cost of providing such that benefits for such period. Executive shall not be required to mitigate the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of any payment or benefit contemplated by this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposedparagraph.
Appears in 2 contracts
Sources: Executive Employment Agreement, Executive Employment Agreement (21st Century Oncology Holdings, Inc.)
Severance Payments. 6.1 If Subject to Section 10.2 hereof, the Executive’s Employer shall pay the Employee the payments described in this Section 10.1 (the "Severance Payments") upon the termination of the Employee's employment is terminated following a Change in Control and during prior to the term end of this Agreementthe Change-in-Control Protective Period, in addition to any payments and benefits to which the Employee is entitled under Sections 5, 6, 7 and 8.1 hereof, unless such termination is (i) by the Company Employer for Cause, (ii) by reason of death or Disability Disability, or (iii) by the Executive Employee without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation . For purposes of the Release and Waiver by the Executivethis Agreement, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s Employee's employment shall be deemed to have been terminated by the Employer without Cause following a Change in Control by the Company without Cause or by the Executive Employee with Good Reason following a Change in Control, as the case may be, if (i) the Executive’s Employee's employment is terminated without Cause prior to a Change in Control without Cause and such termination was at the request or direction of a Person who has entered into an agreement with the Company Employer the consummation of which will would constitute a Change in Control or if Control, (ii) the Executive Employee terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying and the definition of Good Reason) if the circumstance circum- stance or event which constitutes Good Reason occurs at the request or direction of such Person, or (iii) the Employee's employment is terminated by the Employer without Cause prior to a Change in Control (but following a Potential Change in Control) and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. For purposes of any determination regarding the applicability of the immediately preceding sentence, any position taken by the Employee shall be presumed to be correct unless the Employer establishes to the Committee by clear and convincing evidence that such position is not correct.
(A) In lieu of any further salary payments to the Executive Employee for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the ExecutiveEmployee, the Company Employer shall pay to the Executive Employee a lump sum severance payment, in cash, equal to two three (3) times the Executive’s sum of (i) the higher of the Employee's Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or the Employee's Base Salary in effect immediately prior to the Change in Control, and (ii) the higher of the annual base salary as approved bonus earned by the Compensation Committee Employee in respect of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the Employer's fiscal year immediately preceding that in which the Date of Termination occurs or the average annual bonus so earned in respect of the three fiscal years immediately preceding that in which the Change in Control occurs.
(B) Notwithstanding any provision of any Bonus Planannual incentive plan to the contrary, the Company Employer shall pay to the Executive Employee a lump sum amount, in cash, equal to the sum of (i) any annual incentive compensation which has been allocated or awarded to the Executive Employee for a completed fiscal year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant and which, as of the Date of Termination, is contingent only upon the continued employment of the Employee to Section 5.2 hereof or otherwise)a subsequent date, and (ii) a pro rata portion to the Date of Termination of a deemed annual bonus for the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the Employer's fiscal year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum (i) the higher of the annual bonus amount earned by a fraction, the numerator Employee with respect to the immediately preceding fiscal year or the average annual bonus earned by the Employee with respect to the immediately preceding three fiscal years of which is the Employer by (ii) the fraction obtained by dividing the number of days in such the fiscal year (or portion thereof) of the Employer in which elapsed termination occurs up to and including the Date of Termination and the denominator of which is the number of days in such year (or portion thereof)by 365.
(C) For a twentythe thirty-four six (2436) month period after immediately following the Date of Termination, the Company Employer shall arrange to provide the Executive Employee with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits those which the Executive Employee is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in amendment to such benefits made subsequent to a Change in Control Control, which reduction constitutes Good Reasonamendment adversely affects in any manner the Employee's entitlement to or the amount of such benefits); PROVIDED, HOWEVER, that, unless the Employee consents to a different method (after taking into account the effect of such method on the calculation of "parachute payments" pursuant to Section 10.2 hereof), such health insurance benefits shall be provided through a third-party insurer. Benefits otherwise receivable by the Executive Employee pursuant to this Section 6.1(C10.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive Employee without cost during the twentythirty-four six (2436) month period following the Executive’s Employee's termination of employment (and any such benefits actually received by or made available to the Executive Employee shall be reported to the Company Employer by the ExecutiveEmployee).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof . If the Severance Payments shall be made not later than decreased pursuant to Section 10.2 hereof, and the fifth (5thSection 10.1(C) day following benefits which remain payable after the expiration application of Section 10.2 hereof are thereafter reduced pursuant to the immediately preceding sentence because of the seven-day revocation period described in Section 6.6 without revocation receipt or availability of comparable benefits, the Employer shall, at the time of such reduction, pay to the Employee the least of (a) the amount of the Release and Waiver by decrease made in the ExecutiveSeverance Payments pursuant to Section 10.2 hereof, unless (b) the Company determines amount of the subsequent reduction in good faith that such payments are required to be delayed for a period of six (6these Section 10.1(C) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i)benefits, in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (iic) the death of maximum amount which can be paid to the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this AgreementEmployee without being, unless such termination is (i) by the Company for Causeor causing any other payment to be, (ii) nondeductible by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation section 280G of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such PersonCode.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 2 contracts
Sources: Employment Agreement (Schulman a Inc), Employment Agreement (Schulman a Inc)
Severance Payments. 6.1 If During the Contract Term, if (a) within six (6) months after a Change of Control occurs the Executive voluntarily terminates his employment with the Company or (b) within twelve (12) months after such Change in Control occurs, the Executive’s 's employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is either (i1) by the Company for Causeany reason other than (A) for Cause (as defined below), (iiB) by reason as a result of the Executive's death or Disability disability or (iiiC) as a result of the Executive's retirement in accordance with the Company's general retirement policies, or (2) by the Executive without for Good Reason, then:
(1) the Executive shall be paid, within thirty (30) days after such termination, an amount in cash equal to all Annual Base Salary then and thereafter payable hereunder through the shorter of the remainder of the Contract Term or eighteen (18) full months;
(2) the Company shall maintain in full force and effect for the shorter of the Contract Term or eighteen (18) months after termination, all employee health and medical benefit plans and programs including, without limitation, the Executive's 401(k) Plan, in which the Executive, his family, or both, were participants immediately prior to termination; provided that such continued participation is possible under the seven-day revocation period described general terms and provisions of such plans and programs; provided, however, that if the Executive becomes eligible to participate in Section 6.6 has expired without revocation a health and medical benefit plan or program of another employer which confers substantially similar benefits, the Executive shall cease to receive benefits under this subparagraph in respect of such plan or program;
(3) all of the Release Options and Waiver other stock options, warrants and other similar rights granted by the Company to the Executive, if any, shall immediately and entirely be vested and shall be immediately delivered to the Executive without restriction or limitation of any kind (except for normal transfer restrictions);
(4) the Annual Bonus, if any, or portion thereof then earned shall be paid within 45 days from the end of the quarter in which the Executive terminates employment; provided, however, that if the Annual Bonus, if any, has not been earned by the Executive at the date of termination, but the Executive otherwise would have been entitled to the Annual Bonus at the end of the Company's next fiscal year or the next period designated by the Company for the determination of bonuses for senior executives (the "Bonus Determination Date"), the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition Annual Bonus to the payments and benefits described Executive within 45 days after the Bonus Determination Date, pro rated in Sections 5.1 and 5.2 hereof amount to the date of the Executive's termination; and
(but not Section 5.3 hereof). The Executive’s employment 5) the Executive shall be deemed paid an amount equal to have been terminated following a Change in Control fifty percent (50%) of the cash surrender value, if any, of those certain life insurance policies underwritten by Southland Life (or such successor or replacement policies) owned by the Company without Cause for the purpose of funding the Company's obligations under the Salary Continuation Agreement. Any obligation owed or by amount payable pursuant to this Section together with any compensation pursuant to Article III that is payable for services rendered through the Executive with Good Reason if effective date of termination, shall constitute the Executive’s employment is terminated prior to a Change in Control without Cause at the direction sole obligation of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change Executive as provided in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposedSection.
Appears in 2 contracts
Sources: Employment Agreement (Dynatronics Corp), Employment Agreement (Dynatronics Corp)
Severance Payments. 6.1 If a. Except as provided in Section 5(b), upon the Executivetermination of Employee’s employment by the Company other than for Cause prior to a Change in Control, the Employee shall be entitled to an amount equal to the aggregate of one times: (i) the annual rate of base salary then being paid to the Employee, plus (ii) the average of the past three years short term bonus pay, plus (iii) the Company’s portion of 12 months’ premiums under any health, disability and life insurance plan or program in which the Employee was entitled to participate immediately prior to the Termination Date (the aggregated amount, the “Severance Pay”), which shall be paid to Employee by the Company over a period of 12 months from the Termination Date in accordance with the Company’s regular payroll cycle, commencing on the first regular payroll date of the Company that occurs more than 60 days after the Termination Date (and including any installment that would have otherwise been paid on regular payroll dates during the period of 60 days following the Termination Date), provided the conditions specified in Section 5(c) have been satisfied.
b. Notwithstanding Section 5(a) and subject to the limitation in Section 5(e), if (i) the Employee’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Employee for Good Reason if Reason, and (ii) the Executive’s employment is terminated prior to Termination Date occurs within 24 months immediately following a Change in Control Control, the Employee shall receive 2.99 times the Severance Pay calculated in accordance with Section 5(a), which shall be paid to Employee by the Company in a lump sum on the later of 60th day following the Termination Date or the closing on the event constituting the Change in Control, provided the conditions specified in Section 5(c) have been satisfied.
c. Notwithstanding the foregoing provisions of Section 5(a) and (b), the Company will not be obligated to make any payments to or on behalf of Employee under Section 5(a) and (b), as applicable, unless (i) Employee signs a release of claims in favor of the Company in a form as prepared by the Company (the “Release”) and delivered to Employee no later than five business days after the Termination Date, (ii) all applicable consideration periods and rescission periods provided by law with respect to the Release have expired without Cause at Employee rescinding the direction of a Person who has entered into an agreement Release, and (iii) Employee is in strict compliance with the Company terms of this Agreement as of the consummation dates of which the payments. The cessation of these payments will constitute be in addition to, and not as an alternative to, any other remedies at law or in equity available to the Company, including without limitation the right to seek specific performance or an injunction.
d. If, when the Employee’s termination of employment occurs, the Employee is a Change in Control or specified employee within the meaning of section 409A of the Code, and if the Executive terminates his employment Severance Pay would be considered deferred compensation under section 409A of the Code, and finally if an exemption from the six-month delay requirement of section 409A(a)(2)(B)(i) of the Code is not available, the Employee’s Severance Pay payments for the first six months following separation from service shall be paid to the Employee in a single lump sum on the first day of the seventh month after the month in which the Employee’s separation from service occurs.
e. In the event that the vesting, acceleration and payment of any equity awards or other compensation or benefits, together with Good Reason prior all other payments and the value of any benefit received or to be received by the Employee under this Agreement would result in all or a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction portion of such Person.
(Apayment being subject to excise tax under Section 4999 of the Code, then the amounts due under Section 5(b) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, that the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to Employee shall be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of either (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination full payment or (ii) such lesser amount determined by the death Company in accordance with this Section 5(e) that would result in no portion of the Executive.
6.3 If payment being subject to excise tax under Section 4999 of the Executive’s Code (the “Excise Tax”), whichever of the foregoing amounts, taking into account the applicable Federal, state, and local employment is terminated taxes, income taxes, and the Excise Tax, results in the receipt by the Employee, on an after-tax basis, of the greatest amount of the payment notwithstanding that all or some portion of the payment may be taxable under Section 4999 of the Code. In the event the amounts due under Section are reduced, the amounts shall be reduced in the following order of priority: first, with respect to any amount that does not constitute the “deferral of compensation” under Section 409A of the Code and regulations promulgated thereunder, disregard the acceleration in the time of payment and then disregard the acceleration of vesting as a result of a Change in Control and during second, with respect to any amount that constitutes the term “deferral of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in compensation” under Section 6.6 has expired without revocation 409A of the Release Code and Waiver by regulations promulgated thereunder, disregard the Executive, acceleration in the time of payment and any such exercise before then disregard the seven-day revocation period has expired without revocation acceleration of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following vesting as a result of a Change in Control first with respect to Company funded amounts and then the Employee’s deferrals, in each case only to the extent necessary to satisfy (ii) above. All determinations required to be made under this Section 5(e) shall be made by a nationally recognized accounting firm that is the Company without Cause or by the Executive with Good Reason if the ExecutiveCompany’s employment is terminated outside auditor immediately prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with event triggering the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is payments that are subject to the Excise Tax (the “Accounting Firm”). The Company shall cause the Accounting Firm to provide detailed supporting calculations of its determinations to the Company and Employee. Notice must be given to the Accounting Firm within 15 business days after an event entitling Employee to an amount due under this Agreement. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The Accounting Firm’s determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). For the purposes of all calculations under Section 280G of the Code and the application of this Section 5.1, all determination as hereinafter definedto present value shall use 120 percent of the applicable Federal rate (determined under Section 1274(d) of the Code) compounded based on the nature of the payment, as in effect on the Date of Termination, but if not otherwise specified, compounded on a semiannual basis. The determination by the Accounting Firm shall be final and binding on the Company and the Employee.
f. If Employee’s employment with the Company is terminated by the Company for Cause or for any reason not covered by Section 5(a) or 5(b), then the Company shall pay to Employee only his base salary and any accrued but unused vacation or PTO earned through the Executive additional amounts Termination Date.
g. In addition to the benefits otherwise provided in Section 5, the Employee shall be entitled to the following benefits and payments upon the Employee’s termination of employment: (i) the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net payment of the Excise Tax shall equal Employee’s base salary and any other form or type of compensation earned, vested and payable through the total amount Date of Termination; (ii) the right to receive all Change in Control Payments benefits to which the Executive would have been entitled if Employee is vested on the Excise Tax had not been imposed. For purposes Date of this Section 6.4, Termination in accordance with the term “Excise Tax” shall mean terms under the tax imposed by Section 4999 Company pension and welfare benefit plans or any successor of the Code such plan and any similar tax that may hereafter be imposedother plan or agreement relating to retirement benefits; and (iii) the right to exercise and to receive all rights in which the Employee is vested on the Date of Termination, in accordance with the terms of all awards under any Company stock purchase and stock incentive plans or programs, or any successor to any such plans or programs.
Appears in 2 contracts
Sources: Executive Severance Agreement (Alerus Financial Corp), Executive Severance Agreement (Alerus Financial Corp)
Severance Payments. 6.1 If (a) Upon the Executive’s employment is terminated following occurrence of a Change Triggering Event, Company shall pay to Employee the amounts set forth below, which shall be payable in Control and during one lump sum payment within thirty (30) days of the term of this AgreementTriggering Event, unless such termination is otherwise specifically provided for in the Plan or the subsections below:
(i) by all amounts specifically set forth in Article II of the Company for Cause, Plan; and
(ii) by reason an amount equal to the product of death or Disability or two (2) times the Employee’s Annual Base Salary; and
(iii) an amount equal to the maximum yearly contribution the Company could make to the Employee’s account in the LESCO, Inc. Salary Savings Plan and Trust, or any successor qualified defined contribution retirement plan, based on the amount contributed to such retirement plan by the Executive without Good Reason, and provided that Employee during the seven-day revocation period described in Section 6.6 has expired without revocation year of the Release and Waiver by Triggering Event; and
(iv) to the Executiveextent not theretofore paid or provided, the Company shall timely pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments provide to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board other amounts or benefits required to be paid to or provided or which the Executive (oris eligible to receive under any plan, if the Executive’s annual base salary is not presented for approval at the Compensation Committee levelprogram, then as otherwise established by J. ▇▇▇▇ policy or one practice or contract or agreement of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company and its affiliated companies (such other amounts and benefits shall pay be hereinafter referred to as the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof“Other Benefits”).
(Cb) For a twenty-four (24) month period after Notwithstanding anything to the Date contrary in the Plan or the Agreement, if any portion of Terminationthe compensation or benefits payable to or on behalf of the Employee under the Plan, or under any other agreement with, or plan of, the Company shall arrange (in the aggregate “Total Payments”) would constitute an “excess parachute payment” under Code Section 280G, then the payments to provide the Executive with life, disability, accident and health insurance benefits substantially similar be made to the life, disability, accident and health insurance benefits which Employee under the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) Plan shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net value of the Excise Tax aggregate Total Payments that Employee is entitled to receive shall equal be one dollar ($1) less than the total maximum amount of all Change in Control Payments that Employee may receive without becoming subject to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Code Section 4999 4999, or which the Company may pay without loss of deduction under Code Section 280G. The calculation of such potential excise tax liability, as well as the Code method in which the compensation reduction is applied, shall be conducted and any similar tax that may hereafter determined by the Company’s independent accountants whose determinations shall be imposedbinding on the Parties.
Appears in 2 contracts
Sources: Employment Retention Agreement (Lesco Inc/Oh), Employment Retention Agreement (Lesco Inc/Oh)
Severance Payments. 6.1 If (a) Upon termination of the Executive’s 's employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, cause as described in Section 9(a); or (ii) by reason the voluntary termination of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation employment of the Release and Waiver by the Executive, the Company Executive shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition not be entitled to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or any severance payment other than compensation earned by the Executive before the date of termination calculated pro rata up to and including the date of termination together with Good Reason if any amount to which the Executive would be entitled to under applicable law.
(b) If the Executive’s 's employment and this Agreement is terminated prior to a Change without notice by the Corporation for any reason other than as described in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control Section 9(a) or 9(b), or if the responsibilities of the Executive terminates his employment with Good Reason prior of the Corporation are reduced in a manner that constitutes constructive dismissal, the Executive shall be entitled to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.receive:
(Ai) In lieu for 36 months following the date of any further termination, the Executive's salary payments at a per-month rate equal to the Executive for periods subsequent to aggregate of (x) the Date then applicable monthly base salary rate and (y) the aggregate of Termination and in lieu of any severance benefit otherwise payable to the Executive, 's annual bonuses for the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to three fiscal years preceding the year in which the Date termination occurs, divided by 36 (or such lesser number of Termination occurs.months during such period during which the Executive was employed by the Corporation), provided that such entitlement shall be reduced by 50% of the Executive's earnings from any other position or employment obtained by the Executive ("Replacement Earnings") during the first six months following the date of termination, 75% of any Replacement Earnings during the seventh to 24th month following the date of termination, and 100% of any Replacement Earnings during the 25th to 36th month following the date of termination; and
(Bii) Notwithstanding 100% accelerated vesting on all stock options held by Executive as of November 2, 1998; and
(iii) in addition, if the Executive's employment is terminated without notice by the Corporation for any provision reason other than as described in Section 9(a), or if the responsibilities of any Bonus Plan, the Company shall pay to the Executive are reduced in a lump sum amountmanner that constitutes constructive dismissal, then in cash, such circumstances the Executive shall be entitled to a cash payment in an amount equal to the sum then estimated net present value (as determined by the Board of (i) any incentive compensation which has been allocated or awarded to Directors, acting reasonably, assuming that the Executive would be employed by the Corporation for the ensuing 24 months and using as a completed year or other measuring period preceding the Date discount rate Celestica Inc.'s cost of Termination funds under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (iiits principal bank working capital credit lines) a pro rata portion to the Date of Termination 24 months' of the maximum bonus amount payable following non-monetary employee benefits to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to then entitled: including hospitalization, supplemental health, group life, dental, special care for children, employee assistance, medical/surgical, vision and hearing benefits. The benefits described in this Section 10(b) are the Notice only severance benefits or benefits in lieu of Termination (without giving effect to any reduction notice that the Executive will receive in such benefits subsequent to a Change the event of the termination of this Agreement for reasons contemplated in Control which reduction constitutes Good Reasonthis Section 10(b). Benefits otherwise receivable The provision of benefits to Executive by the Corporation under this Section 10(b) shall cease in the event that Executive breaches his obligations pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term 14 of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 2 contracts
Sources: Employment Agreement (Celestica Inc), Employment Agreement (Celestica Inc)
Severance Payments. 6.1 (a) If a Terminating Event occurs within two (2) years after the Executive’s employment is terminated following date on which a Change in Control and during has occurred, then the term of this Agreement, unless such termination is Executive shall be entitled to receive the following:
(i) by an aggregate amount equal to 1.5 times the Company for CauseExecutive's "Highest Annual Compensation" (as defined in paragraph (c) of this Section 4), such amount to be paid out in equal periodic installments in accordance with the Bank's ordinary payroll practices over the eighteen-month period commencing on the first payroll payment date after the date on which the Executive's employment with the Bank terminates (the "Date of Termination");
(ii) by reason of death any base salary, commissions or Disability other compensation accrued or (iii) by the Executive without Good Reasonearned, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction yet paid, as of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and any annual or other bonus actually awarded, but not yet paid, as of the Date of Termination, such amounts to be paid on the Date of Termination;
(iii) reimbursement for all business expenses for which the Executive would ordinarily be reimbursed by the Employers in lieu the ordinary course of business in accordance with the Employers' policies, programs, procedures or practices incurred, but not yet paid, as of the Date of Termination, such amount to be paid on the Date of Termination;
(iv) payment of the per diem value of any severance benefit otherwise payable unused vacation days, whether deemed to the Executivebe accrued or unaccrued, the Company shall pay that would be available to the Executive a lump sum severance payment, in cash, equal to two times through the Executive’s annual base salary as approved by the Compensation Committee end of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the calendar year (or any portion thereofbut not beyond) in which the Date of Termination occurs;
(v) continuation of the Employers' employee welfare benefit plans, treating programs and practices in which the Executive and his spouse and any and all performance goals under such Bonus Plans other eligible dependents participate or are eligible to participate as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination or, if more favorable to the Executive, as of the date of a Change in Control, at the levels in effect on, and at the denominator same out-of-pocket costs to the Executive as of, the Date of which Termination or, if more favorable to the Executive, as of the date of a Change in Control, for the eighteen-month period commencing on the Date of Termination (or, if such continuation is not permitted by applicable law or if the number Bank's Board of days Directors so determines in its sole discretion, the Bank shall pay to the Executive a cash amount equal to the difference between (A) the aggregate amount that would be required to be paid by the Executive in order for the Executive to obtain a continuation of such year benefits and coverages for such eighteen-month period for himself, his spouse and any other eligible dependents under or through one or more plans, programs or other arrangements provided by one or more unaffiliated third parties and (or portion thereofB) the out-of-pocket costs that would be incurred by the Executive in accordance with the terms hereof if such continuation of benefits and coverages were provided under the Employers' employee welfare benefit plans, programs and practices).;
(Cvi) For reimbursement for the reasonable fees of a twentyprofessional out-four placement service selected by the Executive within ninety (2490) month period days after the Date of Termination, such amount to be paid promptly after the Company shall arrange expense is incurred; and
(vii) any other compensation and benefits as may be provided in accordance with the terms of any applicable plans, programs, policies, procedures or practices of the Employers.
(viii) all annual payments (which currently are $33,000 per year but which may be adjusted upward by either an amendment to provide the Split Dollar Agreement between the Executive with life, disability, accident and health insurance benefits substantially similar the Employers or by an additional split dollar agreement) which are payable to the life, disability, accident and health insurance benefits which Mass Mutual on February 28th of each year up through age 65 of the Executive is receiving immediately under the Split Dollar Agreement between the Executive and the Employers shall be made in one lump sum payment.
(b) If a Terminating Event occurs within one (1) year prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to date on which a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by occurs, then the Executive shall be reported entitled to the Company by the Executivereceive, as provided in this paragraph (b).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration , all of the seven-day revocation period described payments and benefits that he would have been entitled to receive under paragraph (a) of this Section 4 if such Terminating Event had occurred within two (2) years after the date on which a Change in Section 6.6 without revocation of the Release and Waiver by the ExecutiveControl has occurred, unless the Company determines such Terminating Event occurs as a result of a termination for Cause (as such term is defined in good faith that such payments are required to be delayed for a period paragraph (f) of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(iSection 8 below), in which case no increase or adjustments to the Company shall so advise amounts paid or benefits provided to the Executive, and Executive in connection with such payments Terminating Event shall be made on the earlier of under this paragraph (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 b). If the Executive’s employment is terminated following a Change required in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement accordance with the Company immediately preceding sentence, the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available amounts paid and benefits provided to the Executive in connection with a Change in Control Terminating Event that occurs within one (including, without limitation, any payment made pursuant 1) year prior to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following date on which a Change in Control occurs shall be increased or otherwise adjusted to ensure that the Executive receives the full payments and benefits contemplated by paragraph (in either categorya) of this Section 4, as if such Terminating Event had occurred within two (2) years after the date on which a “Change in Control Payment”has occurred. If the payments and/or benefits to be received by the Executive in connection with a Terminating Event that has occurred within one (1) is subject year prior to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all date on which a Change in Control Payments net occurs are required to be increased or adjusted under this paragraph (b), then the Executive shall be paid on the first ordinary payroll payment date of the Excise Tax shall equal Bank following the total amount occurrence of all such Change in Control Payments the cash amount necessary to which ensure that as of such date the Executive shall have received the full amounts of the payments and benefits that the Executive would have been entitled received as of such date under paragraph (a) of this Section 4 if such Terminating Event had occurred within two (2) years after the Excise Tax had date on which a Change in Control has occurred (including without limitation the economic equivalent of any noncash benefits that have not been imposed. provided to the Executive during the period from the date on which such Terminating Event occurred and the date on which such Change in Control occurred) and from and after such payroll payment date the Executive shall receive the full amounts of the remaining payments and benefits that the Executive is required to receive under paragraph (a) of this Section 4 in accordance with the terms thereof (including without limitation, to the extent that reimbursement for the reasonable fees of a professional out-placement service selected by the Executive has not already then been paid hereunder, such reimbursement with respect to a professional out-placement service selected by the Executive within ninety (90) days after the occurrence of such Change in Control).
(c) For purposes of this Section 6.44, the term “Excise Tax” Executive's "Highest Annual Compensation" shall mean mean, as determined as of any Date of Termination, the tax imposed sum of (i) the highest per annum rate of base salary paid by Section 4999 the Employers to the Executive at any time during the three-year period prior to such Date of Termination, (ii) the highest amount of commission or other compensation (which is not otherwise included in the base salary and bonus amounts referred in clauses (i) and (iii) of this paragraph (c)) paid by the Employers to the Executive with respect to any of the Code three most recently completed fiscal years of the Bank prior to such Date of Termination, and (iii) the highest annual incentive compensation or other bonus amount paid by the Employers to the Executive (or which would have been paid but for an election by the Executive to defer payment to a later period) with respect to any similar tax that may hereafter be imposedof the three most recently completed fiscal years of the Bank prior to such Date of Termination.
Appears in 1 contract
Sources: Change in Control/Noncompetition Agreement (Enterprise Bancorp Inc /Ma/)
Severance Payments. 6.1 If the Executive’s employment is terminated following Following a Change in Control and of the Company, if, ------------------ during the term of this Agreementthirty-six (36) months following such Change in Control, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been is terminated following a Change in Control by the Company without Cause or by the (ii) Executive with Good Reason if the Executive’s terminates employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control (or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of its successor or assigns) for Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to and provide Executive each of the following:
(a) Within five (5) business days after the effective date of any such termination of employment (the "Effective Date"), the Company (or its successor or assigns) will pay Executive a lump sum severance payment, in cash, cash payment equal to two three (3) times the average annual compensation that was includible in Executive’s annual base salary as approved 's gross income during each of the lesser of (i) the five (5) full fiscal years immediately prior to the Effective Date and (ii) the number of years Executive was employed by the Compensation Committee of the Board to be paid Company immediately prior to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occursEffective Date.
(Bb) Notwithstanding Executive and her dependents shall continue to be covered for thirty-six (36) months after the Effective Date by all survivor rights, insurance and benefit programs of the Company (or its successor or assigns) in type and amount at least equivalent to that provided to she and her dependents by the Company immediately prior to the Change of Control; provided that if participation in any provision one or more of any Bonus Plansuch arrangements is not possible under the terms thereof, the Company (or its successor or assigns) will provide substantially identical benefits outside of the programs. The cost of this coverage will be paid by the Company (or its successor or assigns).
(c) If all or any portion of the amounts payable to Executive under this Agreement, either alone or together with other payments which Executive has the right to receive from the Company, constitute "excess parachute payments" (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), that are subject to the excise tax imposed by Section 4999 of the Code (or similar tax and/or assessment), the Company (or its successor or assigns) shall increase the amounts payable pursuant to Section 6(a) above to the extent necessary to place Executive in the same after-tax position as she would have been in had no such excise tax been imposed on the payments hereunder. The determination of the amount of any such excise taxes shall initially be made by the independent accounting firm employed by the Company immediately prior to the Change in Control. If, at a later date, it is determined that the amount of excise taxes payable by Executive is greater than the amount initially so determined, then the Company (or its successor or assigns) shall pay to the Executive a lump sum amount, in cash, an amount equal to the sum of (i) such additional excise taxes, (ii) any incentive compensation which has been allocated interest, fines and penalties resulting from such underpayment, plus (iii) an amount necessary to reimburse Executive for any income, excise or awarded other taxes payable by Executive with respect to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid amount specified in (pursuant to Section 5.2 hereof or otherwise), i) and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occursabove, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator reimbursement provided by this (iii). E-39 Upon the occurrence of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by of the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost Company, if, during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months following such Change in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i)Control, in which case Executive terminates employment with the Company shall so advise the Executive, and such payments shall be made on the earlier of (ior its successor or assigns) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by then within five (5) business days after the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined)Effective Date, the Company shall pay to the Executive additional amounts an amount equal to thirty percent (the “Gross Up Amounts”30%) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change described in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed6(a) above.
Appears in 1 contract
Sources: Executive Employment Agreement (Amserv Healthcare Inc)
Severance Payments. 6.1 If a. Except as provided in Section 5(b), upon the Executivetermination of Employee’s employment by the Company other than for Cause prior to a Change in Control, the Employee shall be entitled to an amount equal to the aggregate of one times: (i) the annual rate of base salary then being paid to the Employee, plus (ii) the average of the past three years short term bonus pay, plus (iii) the Company’s portion of 12 months’ premiums under any health, disability and life insurance plan or program in which the Employee was entitled to participate immediately prior to the Termination Date (the aggregated amount, the “Severance Pay”), which shall be paid to Employee by the Company over a period of 12 months from the Termination Date in accordance with the Company’s regular payroll cycle, commencing on the first regular payroll date of the Company that occurs more than 60 days after the Termination Date (and including any installment that would have otherwise been paid on regular payroll dates during the period of 60 days following the Termination Date), provided the conditions specified in Section 5(c) have been satisfied.
b. Notwithstanding Section 5(a) and subject to the limitation in Section 5(e), if (i) the Employee’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Employee for Good Reason if Reason, and (ii) the Executive’s employment is terminated prior to Termination Date occurs within 24 months immediately following a Change in Control Control, the Employee shall receive two times the Severance Pay calculated in accordance with Section 5(a), which shall be paid to Employee by the Company in a lump sum on the later of 60th day following the Termination Date or the closing on the event constituting the Change in Control, provided the conditions specified in Section 5(c) have been satisfied.
c. Notwithstanding the foregoing provisions of Section 5(a) and (b), the Company will not be obligated to make any payments to or on behalf of Employee under Section 5(a) and (b), as applicable, unless (i) Employee signs a release of claims in favor of the Company in a form as prepared by the Company (the “Release”) and delivered to Employee no later than five business days after the Termination Date, (ii) all applicable consideration periods and rescission periods provided by law with respect to the Release have expired without Cause at Employee rescinding the direction of a Person who has entered into an agreement Release, and (iii) Employee is in strict compliance with the Company terms of this Agreement as of the consummation dates of which the payments. The cessation of these payments will constitute be in addition to, and not as an alternative to, any other remedies at law or in equity available to the Company, including without limitation the right to seek specific performance or an injunction.
d. If, when the Employee’s termination of employment occurs, the Employee is a Change in Control or specified employee within the meaning of section 409A of the Code, and if the Executive terminates his employment Severance Pay would be considered deferred compensation under section 409A of the Code, and finally if an exemption from the six-month delay requirement of section 409A(a)(2)(B)(i) of the Code is not available, the Employee’s Severance Pay payments for the first six months following separation from service shall be paid to the Employee in a single lump sum on the first day of the seventh month after the month in which the Employee’s separation from service occurs.
e. In the event that the vesting, acceleration and payment of any equity awards or other compensation or benefits, together with Good Reason prior all other payments and the value of any benefit received or to be received by the Employee under this Agreement would result in all or a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction portion of such Person.
(Apayment being subject to excise tax under Section 4999 of the Code, then the amounts due under Section 5(b) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, that the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to Employee shall be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of either (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination full payment or (ii) such lesser amount determined by the death Company in accordance with this Section 5(e) that would result in no portion of the Executive.
6.3 If payment being subject to excise tax under Section 4999 of the Executive’s Code (the “Excise Tax”), whichever of the foregoing amounts, taking into account the applicable Federal, state, and local employment is terminated taxes, income taxes, and the Excise Tax, results in the receipt by the Employee, on an after-tax basis, of the greatest amount of the payment notwithstanding that all or some portion of the payment may be taxable under Section 4999 of the Code. In the event the amounts due under Section are reduced, the amounts shall be reduced in the following order of priority: first, with respect to any amount that does not constitute the “deferral of compensation” under Section 409A of the Code and regulations promulgated thereunder, disregard the acceleration in the time of payment and then disregard the acceleration of vesting as a result of a Change in Control and during second, with respect to any amount that constitutes the term “deferral of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in compensation” under Section 6.6 has expired without revocation 409A of the Release Code and Waiver by regulations promulgated thereunder, disregard the Executive, acceleration in the time of payment and any such exercise before then disregard the seven-day revocation period has expired without revocation acceleration of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following vesting as a result of a Change in Control first with respect to Company funded amounts and then the Employee’s deferrals, in each case only to the extent necessary to satisfy (ii) above. All determinations required to be made under this Section 5(e) shall be made by a nationally recognized accounting firm that is the Company without Cause or by the Executive with Good Reason if the ExecutiveCompany’s employment is terminated outside auditor immediately prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with event triggering the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is payments that are subject to the Excise Tax (the “Accounting Firm”). The Company shall cause the Accounting Firm to provide detailed supporting calculations of its determinations to the Company and Employee. Notice must be given to the Accounting Firm within 15 business days after an event entitling Employee to an amount due under this Agreement. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The Accounting Firm’s determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). For the purposes of all calculations under Section 280G of the Code and the application of this Section 5.1, all determination as hereinafter definedto present value shall use 120 percent of the applicable Federal rate (determined under Section 1274(d) of the Code) compounded based on the nature of the payment, as in effect on the Date of Termination, but if not otherwise specified, compounded on a semiannual basis. The determination by the Accounting Firm shall be final and binding on the Company and the Employee.
f. If Employee’s employment with the Company is terminated by the Company for Cause or for any reason not covered by Section 5(a) or 5(b), then the Company shall pay to Employee only his base salary and any accrued but unused vacation or FTO earned through the Executive additional amounts Termination Date.
g. In addition to the benefits otherwise provided in Section 5, the Employee shall be entitled to the following benefits and payments upon the Employee’s termination of employment: (i) the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net payment of the Excise Tax shall equal Employee’s base salary and any other form or type of compensation earned, vested and payable through the total amount Date of Termination; (ii) the right to receive all Change in Control Payments benefits to which the Executive would have been entitled if Employee is vested on the Excise Tax had not been imposed. For purposes Date of this Section 6.4, Termination in accordance with the term “Excise Tax” shall mean terms under the tax imposed by Section 4999 Company pension and welfare benefit plans or any successor of the Code such plan and any similar tax that may hereafter be imposedother plan or agreement relating to retirement benefits; and (iii) the right to exercise and to receive all rights in which the Employee is vested on the Date of Termination, in accordance with the terms of all awards under any Company stock purchase and stock incentive plans or programs, or any successor to any such plans or programs.
Appears in 1 contract
Sources: Executive Severance Agreement (Alerus Financial Corp)
Severance Payments. 6.1 2.1 If the Executive’s employment is is: (a) terminated following a Change in Control and during the term of this Agreement, unless such termination is Term by Spectrum without Cause (ias defined below) by or due to death or Disability (as defined below); and (b) the Company for Cause, Executive (ii) by reason or in the event of death or Disability Disability, the Executive's estate, heirs, or (iiiadministrator, as applicable) by the Executive without Good Reason, executes a separation agreement in form and provided that the seven-day revocation period described content agreeable to Spectrum and with a full release of claims in Section 6.6 has expired without revocation favor of the Release and Waiver by Company, which becomes irrevocable within fifty-five (55) days after the Executive’s termination (or such longer applicable time period if required by applicable law), the Company then Spectrum shall pay the Executive the payments amounts, and provide the Executive the benefits, described in this Section 6.1 2.2 (the “Severance Period”) and Section 2.3 (the “Severance Payments”) for the duration of the Severance Period (as defined in addition Section 2.2 below). For the avoidance of doubt, if the Executive fails to execute the separation agreement in a timely manner so as to permit any revocation period to expire prior to the payments and end of the applicable fifty-five (55) day period (or such longer applicable time period if required by applicable law), or timely revokes acceptance of the separation agreement following its execution, the Executive shall not be entitled to any benefits described in Sections 5.1 and 5.2 hereof under this Agreement (including, but not Section 5.3 hereoflimited to, Sections 2.3(a) or 2.3(b)). The For the avoidance of doubt, any decision by Spectrum not to renew the Term of this Agreement that results in the Executive’s employment separation shall be deemed to have been terminated following a Change in Control by the Company termination without Cause as of the expiration of the Term for all purposes of this Agreement, unless the failure to renew is because of Executive’s refusal to renew or by because a termination has occurred prior to the Executive with Good Reason if expiration of the Term.
2.2 The “Severance Period” shall be: (a) twenty-six (26) weeks in the event the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his total employment with Good Reason prior to a Change Spectrum or its subsidiaries is between zero (0) and twelve (12) months; (b) thirty-two (32) weeks in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by total employment with Spectrum or its subsidiaries is longer than twelve (12) months but less than three (3) years; (c) forty (40) weeks in the Compensation Committee event the Executive’s total employment with Spectrum or its subsidiaries is longer than three (3) but less than six (6) years; and (d) fifty-two (52) weeks in the event the Executive’s total employment with Spectrum or its subsidiaries is longer than six (6) years. By way of the Board to be paid to the Executive (orexample, if the Executive’s annual base salary is not presented for approval total employment with Spectrum or its subsidiaries at the Compensation Committee leveltime of the Executive’s termination is eighteen (18) months, then as otherwise established by J. ▇▇▇▇ the Executive will be entitled to thirty-two (32) weeks of Severance Payment. Alternatively, if the Executive’s total employment with Spectrum or one its subsidiaries at the time of its Subsidiariesthe Executive’s termination is eight (8) years, the Executive will be entitled to fifty-two (52) with respect to the year in which the Date weeks of Termination occursSeverance Payment.
(Ba) Notwithstanding any provision of any Bonus PlanTo the extent owed pursuant to this Agreement, following a termination pursuant to Section 2.1, Spectrum shall pay, during the Company shall pay Severance Period, to the Executive a lump sum amount, as severance an amount in cash, cash equal to the sum of 100% of the Executive’s weekly base salary in effect at the time such termination occurs for each week of the Severance Period, subject to required witholdings and deductions, to be paid in accordance with Spectrum’s regular payroll process and schedule. Severance payments pursuant to this Section 2.3(a) shall cease immediately upon the discovery by the Company of the Executive’s breach of the covenants contained in Sections 5, 6 or 7 hereof.
(ib) any incentive compensation which has been allocated or awarded To the extent owed pursuant to the Executive for this Agreement, following a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (termination pursuant to Section 5.2 hereof 2.1, and during the Severance Period (this period may end earlier if the Executive obtains or otherwisehas the opportunity to participate in individual or family coverage through another employer), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company Spectrum shall arrange to provide the Executive with lifeand, disabilityto the extent applicable, accident and the Executive’s dependents, subsidized health insurance benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) as described below. The Executive’s right to subsidized COBRA is contingent on the Executive being eligible for and timely electing COBRA coverage, and subject to the conditions that: (i) the Executive shall be responsible for immediately notifying Spectrum if the Executive obtains or has the opportunity to participate in individual or family coverage through another employer during the Severance Period, (ii) the Executive will be responsible for the entire COBRA premium amount after the end of the Severance Period; and (iii) if the Executive declines COBRA coverage, then Spectrum will not make any alternative payment to the Executive in lieu of paying for COBRA premiums. During the Severance Period, Spectrum agrees that Spectrum shall pay for the employer portion of providing such healthcare coverage, and the Executive shall pay the employee portion of providing such healthcare coverage that is substantially similar to other employees of the life, disability, accident and health insurance benefits which same level as the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason)Executive. Benefits otherwise receivable by the Executive Health benefit contributions pursuant to this Section 6.1(C2.3(b) shall cease immediately upon the discovery by the Company of the Executive’s breach of the covenants contained in Sections 5, 6 or 7 hereof.
(c) Notwithstanding the foregoing, if any payment or benefit in accordance with this Agreement is reasonably determined by either party to be reduced subject, for any reason, to a material risk of additional tax under section 409A of the Internal Revenue Code of 1986, as amended, then payment will be suspended until the parties can agree, in good faith, on provisions to avoid such risk without materially changing the economic value of this Agreement to either party.
2.4 Notwithstanding anything else herein to the extent comparable benefits are actually received contrary, the Executive will not be eligible to receive any Severance Payments if the Executive: (a) is terminated by Spectrum for Cause (as defined below); (b) resigns for any reason; (c) fails (or made available in the event of death or Disability, the Executive's estate, heirs or administrator, as applicable, fail) to execute the separation agreement with a release of claims in form and content agreeable to Spectrum within fifty-five (55) days after the Executive’s separation (or such longer applicable time period if required by applicable law); or (d) as reasonably determined by Spectrum, breaches the covenants contained in Sections 5, 6 or 7 hereof.
2.5 Notwithstanding anything else herein to the contrary, in the event that the Executive without cost executes a separation agreement that becomes effective according to its terms, and if the Company, during the twentytwo-four year period after the separation agreement’s effective date (24as defined in the applicable separation agreement), acquires evidence that: (i) month period following the Executive has failed to abide by the Executive’s continuing obligations under Sections 5, 6 or 7 hereof; or (ii) a “Cause” condition existed prior to the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to date that, had the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion been fully aware of such stock options for which vesting has been accelerated until condition, would have resulted in the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either categoryfor Cause pursuant to this Agreement, a “Change in Control Payment”) is subject then, upon written notice from the Company to the Excise Tax (as hereinafter defined)Executive, in addition to any and all rights that the Company shall pay to have under contract or law, the Executive additional amounts (shall promptly return all severance or benefit payments with the “Gross Up Amounts”) such that the total amount exception of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to $1,000, which the Executive would have been entitled if agrees shall remain the Excise Tax had not been imposed. For purposes consideration for the Executive’s release of this Section 6.4, claims pursuant to the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposedapplicable separation agreement.
Appears in 1 contract
Severance Payments. 6.1 If Subject to Section 6.2 hereof and subject to Executive entering into a release of claims in substantially the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executiveform attached hereto as Appendix I, the Company shall pay the Executive the payments and provide the benefits described in this Section 6.1 (the “"Severance Payments”") upon the termination of the Executive's employment following a Change in Control during the term of this Agreement, in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof Section 5.0 hereof, unless such termination is (but not Section 5.3 hereof)A) by the Company for Cause, (B) by reason of death or Disability, or (C) by the Executive without Good Reason. The Executive’s 's employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s 's employment is terminated prior to a Change in Control without Cause at the direction (or action which constitutes a direction) of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction (or action which constitutes a direction) of such Person.
(Ai) In lieu Subsequent to the Date of any further salary Termination, the Company shall make cash severance payments to the Executive for periods subsequent to the Date of Termination and over a twenty-four (24) month period in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance paymentsubstantially equal bi-weekly installments, in cash, an amount equal to two (2) times the sum of (a) the higher of the Executive’s 's annual base salary as approved by in effect immediately prior to the Compensation Committee occurrence of the Board event or circumstance upon which the Notice of Termination is based or in effect immediately prior to be the Change in Control, and (b) the higher of the highest annual bonus paid to the Executive (or, if in the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to three years preceding the year in which the Date of Termination occurs or paid in the three years preceding the year in which the Change in Control occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident medical and health dental insurance benefits substantially similar to the life, disability, accident and health insurance benefits those which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C6.1(ii) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s 's termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive). If the benefits provided to the Executive under this Section 6.1(ii) shall result in a decrease, pursuant to Section 6.2, in the Change in Control Payments and these Section 6.1(ii) benefits are thereafter reduced pursuant to the immediately preceding sentence because of the receipt of comparable benefits, the Company shall, at the time of such reduction, pay to the Executive the lesser of (a) the amount of the decrease made in the Severance Payments pursuant to Section 6.2, or (b) the maximum amount which can be paid to the Executive without being, or causing any other payment to be, nondeductible by reason of section 280G of the Code.
6.2 The payments provided for in Section 6.1 (Notwithstanding any other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term provisions of this Agreement, unless such termination is (i) by in the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If that any payment or benefit made available received or to be received by the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or the termination of the Executive’s ' s employment following a Change (whether or not received pursuant to the terms of this Agreement) (all such payments and benefits, including but not limited to the Severance Payments, being hereinafter called the "Total Payments") would be subject in Control (whole or in either categorypart to the Excise Tax, a “Change in Control Payment”) then the Severance Payments shall be reduced to the extent, but only to the extent, necessary so that no portion of the Total Payments is subject to the Excise Tax; provided, that no such reduction shall be effected unless the net amount of the Total Payments after such reduction in the Severance Payments and after deduction of the net amount of federal, state and local income taxes on such reduced Total Payments would be greater than the excess of (a) the net amount of the Total Payments without such reduction in the Severance Payments but after deduction of the net amount of federal, state and local income taxes (other than the Excise Tax) on such unreduced Total Payments, over (b) the Excise Tax (to which the Total Payments are subject. The determination as hereinafter defined)to whether a reduction in Severance Payments is to be made under this Section 6.2 and, if so, the amount of any such reduction shall be made by the Company's auditors or by such other firm of certified public accountants, benefits consulting firm or legal counsel as the Board may designate prior to the Change in Control. The Company shall provide the executive with its calculations of the amounts referred to in this Section 6.2 and such supporting materials as are reasonably necessary for the Executive to evaluate the Company's calculations.
6.3 The Company also shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which legal fees and expenses incurred by the Executive would have been entitled as a result of a termination which entitles the Executive to the Severance Payments (including all such fees and expenses, if any, incurred in disputing any such termination or in seeking in good faith to obtain or enforce any benefit or right provided by this Agreement or in connection with any tax audit or proceeding to the Excise Tax had not been imposed. For purposes extent attributable to the application of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section section 4999 of the Code to any payment or benefit provided hereunder). Such payments shall be made within five (5) business days after delivery of the Executive's written requests for payment accompanied with such evidence of fees and any similar tax that expenses incurred as the Company reasonably may hereafter be imposedrequire.
Appears in 1 contract
Sources: Executive Officer Change in Control Agreement (Polycom Inc)
Severance Payments. 6.1 5.1 If the Executive’s employment is terminated following a Change in Control and during the term of this AgreementTerm, unless such termination is other than (iA) by the Company for Cause, (iiB) by reason of death or Disability Disability, or (iiiC) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executivethen, the Company shall pay the Executive the payments amounts, and provide the Executive the benefits, described in this Section 6.1 5.1 (the “Severance Payments”) and Section 5.2, in addition to the any payments and benefits described to which the Executive is entitled under Section 4 hereof. Solely for purposes of determining whether termination occurred following a Change in Sections 5.1 Control pursuant to this Agreement (and 5.2 hereof (but not Section 5.3 hereofwithout any implication that a Change in Control has in fact occurred). The , the Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason Reason, if (i) the Executive’s employment is terminated by the Company without Cause prior to a Change in Control without Cause and such termination was at the request, direction or suggestion, directly or indirectly, of a Person who has entered into an agreement or with whom the Company contemplates will enter into an agreement with the Company the consummation of which will would constitute a Change in Control or if or, (ii) the Executive terminates his employment with for Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if and the circumstance or event which constitutes Good Reason occurs at the request, direction or suggestion of such PersonPerson described in clause (i). For purposes of any determination regarding the applicability of the immediately preceding sentence, any position taken by the Executive shall be presumed to be correct unless the Company establishes to the Committee by clear and convincing evidence that such position is not correct.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs$2,250,000.
(B) For the thirty-six (36) month period immediately following the Date of Termination, the Company shall arrange to provide the Executive and his dependents life, disability, accident and health insurance benefits and perquisites (including, but not limited to, executive life insurance, club memberships, financial planning and tax preparation, annual physical examination and charitable contributions), in each case, substantially similar to those provided to the Executive and his dependents immediately prior to the Date of Termination or, if more favorable to the Executive, those provided to the Executive and his dependents immediately prior to the first occurrence of an event or circumstance constituting Good Reason, at no greater cost to the Executive than the cost to the Executive immediately prior to such date or occurrence; provided, however, that, unless the Executive consents to a different method (after taking into account the effect of such method on the calculation of “parachute payments” pursuant to Section 5.2 hereof), such health insurance benefits shall be provided through a third-party insurer. Benefits otherwise receivable by the Executive pursuant to this Section 5.1(B) shall be reduced to the extent benefits of the same type are received by the Executive under any individual or group policy or program, or made available to the Executive under a group plan whether by reason of the employment of the Executive or the employment of the spouse of the Executive, during the thirty-six (36) month period following the Executive’s termination of employment (and any such benefits received by or made available to the Executive shall be reported to the Company by the Executive); provided, however, that the Company shall reimburse the Executive for the excess, if any, of the cost of such benefits to the Executive over such cost immediately prior to the Date of Termination or, if more favorable to the Executive, the first occurrence of an event or circumstance constituting Good Reason.
(C) Notwithstanding any provision of any Bonus Planthat certain Employment Agreement between the Company and the Executive effective as of February 1, 2004 (the “Employment Agreement”), the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum aggregate value of (ithe contingent bonus award contemplated by Section 4(b) any incentive compensation which has been allocated or awarded to of the Employment Agreement that the Executive for a completed year or other measuring period preceding would have earned as of the Date last day of Termination under any such Bonus Plan but has not yet been paid the Base Period (pursuant to Section 5.2 hereof or otherwiseas defined in the Employment Agreement), and (ii) a pro rata portion to assuming the Date of Termination achievement, at the expected value target level, of the maximum bonus amount payable to the Executive under all Bonus Plans performance goals established with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof)award.
(CD) For The committee (as defined by the ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ Services, Inc. 1998 Nonstatutory Stock Option Plan) shall deem the Executive’s termination of employment as a twenty-four retirement for purposes of the ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ Services, Inc. 1998 Nonstatutory Stock Option Plan.
(24E) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to If a Change in Control which reduction constitutes Good Reasonoccurs prior to January 4, 2005 the Company shall pay to the Executive a lump sum payment, in cash, equal to the Black-Scholes value, as reasonably determined by the Company as of March 31, 2004, of an option to purchase 100,000 shares of the Company’s common stock, assuming for this purpose the option was granted on March 31, 2004, the per share exercise price under the option is $ 14.62, the option has the same terms and conditions as applied to the option granted by the Company to the Executive on March 31, 2004 (other than the number of shares subject to the option). Benefits otherwise receivable , and the option remains outstanding for the full ten year term; and utilizing the risk free interest rate, dividend yield, and expected volatility assumptions used by the Company for purposes of valuing stock options for its 2003 fiscal year as reflected in its fiscal year 2003 Form 10-K filed with the Securities and Exchange Commission.
5.2 (A) Whether or not the Executive becomes entitled to the Severance Payments, if any of the payments or benefits received or to be received by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by in connection with a Change in Control or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (such payments or benefits, excluding the Gross-Up Payment, being hereinafter referred to as the “Total Payments”) will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments.
(B) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments shall be treated as “parachute payments” (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to the Executive and selected by the accounting firm which was, immediately prior to the Change in Control, the Company’s independent auditor (the “Auditor”), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all “excess parachute payments” within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually received rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of section 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be reported deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 5.2), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.
(C) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to the Company Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is fully determined, the portion of the Gross-Up Payment”) attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Executive’s taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) within five (5) business days following the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.
6.2 5.3 The payments provided for in subsection (A) and (C) of Section 5.1 hereof and in Section 6.1 (other than Section 6.1(C)) 5.2 hereof shall be made not later than the fifth (5th) day following the expiration Date of Termination; provided, however, that if the seven-day revocation period described in Section 6.6 without revocation amounts of the Release and Waiver by the Executivesuch payments cannot be finally determined on or before such day, unless the Company determines shall pay to the Executive on such day an estimate, as determined in good faith that by the Executive or, in the case of payments under Section 5.2 hereof, in accordance with Section 5.2 hereof, of the minimum amount of such payments are required to be delayed for a period which the Executive is clearly entitled and shall pay the remainder of six such payments (6) months in order together with interest on the unpaid remainder (or on all such payments to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case extent the Company shall so advise the Executive, and fails to make such payments shall when due) at 120% of the rate provided in section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be made on determined but in no event later than the earlier of thirtieth (i30th) six (6) months day after the Date of Termination or (ii) Termination. In the death event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at 120% of the rate provided in section 1274(b)(2)(B) of the Code), but only to the extent such amount has not been paid by the Executive pursuant to Section 5.2(C) above. At the time that payments are made under this Agreement, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).
6.3 5.4 If the Executive’s employment with the Company is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined)Term, the Company shall pay to the Executive additional amounts (all legal fees and expenses incurred by the “Gross Up Amounts”) such that Executive in disputing in good faith any issue hereunder relating to the total amount of all Change in Control Payments net termination of the Excise Tax shall equal Executive’s employment, in seeking in good faith to obtain or enforce any benefit or right provided by this Agreement or in connection with any tax audit or proceeding to the total amount extent attributable to the application of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section section 4999 of the Code to any payment or benefit provided hereunder. Such payments shall be made within five (5) business days after delivery of the Executive’s written requests for payment accompanied with such evidence of fees and any similar tax that expenses incurred as the Company reasonably may hereafter be imposedrequire.
Appears in 1 contract
Sources: Severance Agreement (Stewart & Stevenson Services Inc)
Severance Payments. 6.1 If In the Executive’s employment is terminated following a Change in Control event of an Involuntary Termination, and during after the term of this Agreement, unless such termination is (i) timely signing by the Employee or his estate of a release of all claims against the Company for Cause, (ii) by reason of death or Disability or (iii) by and its Affiliates that is in form and substance satisfactory to the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the ExecutiveCompany, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition provide to the payments and benefits described in Sections 5.1 and 5.2 hereof Employee or his estate a severance benefit (but not Section 5.3 hereof). The Executive’s employment shall be deemed subject to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reasonapplicable withholding requirements) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.equal to:
(Aa) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum an aggregate amount, payable in cashtwelve (12) equal monthly installments, subject to applicable withholdings, equal to the sum of (i) any incentive compensation which has been allocated or awarded an amount equal to the Executive for a completed year or other measuring period preceding the Date of Termination under any twelve (12) months’ Base Salary (at such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and Employee’s then effective Base Salary) plus (ii) a pro rata portion an amount equal to the Date average bonus paid to the Employee for the three year period prior to date of Termination such Involuntary Termination; and
(b) all of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occursEmployee’s accrued but unpaid vacation, treating any sick and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of personal days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received that Company policy provides for payment of such accrued but unpaid amounts. provided, however, that in the event of a breach by the Employee of any provision of Section 3, 4, or made available 5 hereof that, in the case of any such breach that is capable of being cured, is not cured within 30 days after receipt of written notice from the Company, the Employee or his estate, as applicable, shall have no right to receive any form of compensation, remuneration, payment under any note issued by the Executive without cost during Company in respect of any equity repurchase, severance or other benefit hereunder, except that the twenty-four Employee or his estate shall be entitled (24subject to applicable withholding requirements) month period following to receive any unpaid Base Salary earned up through the Executivedate of the Employee’s termination of employment (employment, subject to applicable withholdings, and any such benefits actually received by the Executive shall be reported all accrued but unpaid vacation, sick and personal days to the Company by extent that the Executive).
6.2 The Company’s policy provides for payment of such accrued and unpaid amounts; and provided, further, however, that in the event the Employee obtains alternative employment while receiving severance payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than hereunder, the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless Employee will promptly notify the Company determines in good faith that of such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case alternative employment and the Company shall so advise the Executivewill have no further obligation to pay, and such the Employee will have no further right to receive, any severance payments shall be made on the earlier of (i) six (6) months hereunder from and after the Date of Termination or (ii) date the death of the ExecutiveEmployee commenced such alternative employment.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Sources: Non Disclosure, Non Competition, Non Hiring, Non Solicitation and Severance Agreement (CIFC Corp.)
Severance Payments. 6.1 If (a) In consideration of Employee's promises and the Executive’s employment is terminated following a Change Release and Covenant Not To Sue contained in Control and during the term Paragraph 3 of this Agreement, unless such termination is Company:
(i) will pay to Employee the aggregate sum of $600,000 less withholding for taxes and other required items (the "Separation Pay"), which represents an amount equal to Employee's base salary as of the date of this Agreement ($250,000), plus an amount equal to Employee's maximum annual bonus opportunity as of the date of this Agreement ($250,000), plus an additional $100,000 severance amount. Notwithstanding the provisions of Section 7(b) (ii) of the Employment Agreement, which is specifically superseded hereby, the Separation Pay shall be paid in equal installments over a period of twelve (12) months from the Termination Date in accordance with the Company's normal payroll policies. Such payments shall begin on October 15, 2004, unless Employee revokes this Agreement prior to that date;
(ii) will reimburse Employee for full COBRA benefits for Employee, pursuant to Section 7(b)(iii) of the Employment Agreement. Pursuant to Section 7(b)(iii) of the Employment Agreement, such payments shall cease when Employee becomes eligible to receive health, medical, and/or dental benefits from a new employer or on March 31, 2006 (whichever event occurs earlier). These reimbursements shall be made by the Company for Cause, on a monthly basis provided Employee provides reasonable documentation to verify his payment of the COBRA benefits.
(iib) by reason In further consideration of death or Disability or (iii) by the Executive without Good Reason, Employee's promises and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described Covenant Not To Sue contained in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term Paragraph 3 of this Agreement, unless such termination is (i) by Company agrees, notwi▇▇▇tanding the terms of the Employment Agreement or any stock option agreement between the Company for Causeand Employee, that all of the Employee's stock options, as set forth on Schedule A hereto, to the extent unvested on the Termination Date, shall accelerate and become 100% vested and exercisable on the Termination Date, and all such stock options shall will remain exercisable until fifteen (ii15) by reason months from the date employee ceases to be a Director of death or Disability or (iii) by the Executive without Good Reason, Company. Schedule A attached hereto contains a complete listing of all outstanding stock options held by Employee as of the Executive for the purchase Termination Date. Except as modified by this Section 2(b), all of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such Employee's stock options for which vesting has been accelerated until shall continue to be governed by the seven-day revocation period described in applicable stock option plan and stock option agreement. This Section 6.6 has expired without revocation 2(b) specifically supersedes Section 7(b)(iv) of the Release Employment Agreement. Employee acknowledges and Waiver by agrees that the Executive, and provisions of this Section 2(b) shall not apply to any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall stock options that may be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control granted by the Company without Cause or by to Employee subsequent to the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such PersonTermination Date.
(ic) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such The parties acknowledge and agree that the total amount of above payments and agreements have been negotiated and agreed upon voluntarily by both parties. The parties also acknowledge and agree that these amounts exceed any and all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments pay and benefits to which the Executive would Employee already may have been entitled if the Excise Tax had not been imposed. For purposes of by contract or law, or for any other reason, and that they constitute good, valuable and sufficient consideration for Employee's covenants and agreements contained in this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposedAgreement.
Appears in 1 contract
Sources: Separation and Release Agreement (Indus International Inc)
Severance Payments. 6.1 If (a) Subject to paragraph 9(b), in the Executive’s event that (i) Employee's employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for while this Agreement is in effect without Good Cause, (ii) the Employment Period is terminated by reason incapacity or disability in accordance with paragraph 3 or (iii) the employment period is terminated by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive accordance with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.paragraph 4:
(A1) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with With respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plansubparagraphs 9(a), the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or and (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to Employee, no later than ten calendar days after the Executive additional amounts effective date of such termination of employment or date of death, as the case may be (the “Gross Up Amounts”"Termination Date"), an amount equal to his then current annual base salary accrued through the Termination Date, his bonus for the most recently completed fiscal year prorated for the current fiscal year through the Termination Date plus one times the sum of his then current annual base salary and bonus (without proration) for the most recently completed fiscal year, and the Company shall continue to keep in full force and effect all plans or policies of medical, 4 accident and life insurance benefits with respect to Employee and his dependents with the same level of coverage available to employees under the terms of those employee benefit plans for a period of twelve months, upon the same terms, costs and otherwise to the same extent as such plans are in effect for employees of the Company who were similarly situated to Employee as of the Termination Date, in addition to any amounts payable to the Employee under any severance pay plan maintained by the Company for its employees;
(2) With respect to subparagraphs 9(a) (i) and (ii), to the extent restricted shares awarded to him as provided in paragraph 8 of this Agreement do not become fully vested and nonforfeitable as of the Termination Date in accordance with paragraph 5 of the Restricted Stock Agreement, such restricted shares shall become fully vested and non-forfeitable as of the Termination Date; provided, that with respect to subparagraph 9(a) (iii), such restricted shares shall become vested and non- forfeitable in accordance with paragraph 5 of the total amount Restricted Stock Agreement; and
(3) With respect to subparagraphs 9(a) (i) and (ii), to the extent options granted to him under paragraph 8 of all this Agreement do not become fully vested and exercisable as of the Termination Date in accordance with paragraph 2 of the Option Agreement, such options shall become vested and exercisable for three months commencing on the Termination Date; provided, that with respect to subparagraph 9(a) (iii), such options shall become vested and exercisable in accordance with paragraph 2 of the Option Agreement.
(i) In the event that Employee's employment is terminated by the Company while this Agreement is in effect within two years following a Change in Control Payments net (as hereinafter defined) with or without Good Cause or (ii) if Employee terminates his own employment within 6 months after a 25% or more reduction in his base annual salary or of the Excise Tax board significantly reducing his responsibilities and removing his title as President and Chief Operating Officer (other than in anticipation 5 of Employee's retirement):
(1) With respect to subparagraphs 9(b) (i) and (ii), the Company shall pay to Employee, no later than ten days after the Termination Date, an amount equal to his then current annual base salary accrued through the total amount Termination Date, his bonus for the most recently completed fiscal year prorated for the current fiscal year through the Termination Date plus one and one half times the sum of his then current annual base salary and bonus for the most recently completed fiscal year (without proration) and the Company shall continue to keep in full force and effect all Change plans or policies of medical, accident and life insurance benefits with respect to Employee and his dependents with the same level of coverage available to employees under the terms of those employee benefit plans for a period of eighteen months, upon the same terms, costs and otherwise to the same extent as such plans are in Control Payments effect for employees of the Company who were similarly situated to which Employee as of the Executive would have been entitled if Termination Date, in addition to any amounts payable to the Excise Tax had not been imposed. For purposes Employee under any severance pay plan maintained by the Company for its employees;
(2) With respect to subparagraph 9(b) (ii), all restricted shares awarded to him as provided in paragraph 8 of this Section 6.4, the term “Excise Tax” Agreement shall mean the tax imposed by Section 4999 become fully vested and non-forfeitable as of the Code Termination Date; provided, that with respect to subparagraph 9(b) (i), such restricted shares shall become vested and any similar tax non-forfeitable in accordance with paragraph 5 of the Restricted Stock Agreement; and
(3) With respect to subparagraph 9(b) (ii), all options granted to him under paragraph 8 of this Agreement shall become vested and exercisable for three months commencing on the Termination Date; provided, that may hereafter be imposedwith respect to subparagraph 9(b) (i), such options shall become vested and exercisable in accordance with paragraph 2 of the Option Agreement.
(c) Subject to paragraph 9(b), in the event that Employee's employment is 6 terminated by the Company with Good Cause:
(1) the Company shall pay to Employee, no later than ten days after the Termination Date, an amount equal to his then current annual base salary accrued through the Termination Date;
(2) all restricted shares awarded to him as provided in paragraph 8 of this Agreement shall become fully vested and non-forfeitable as of the Termination Date; and
(3) all options granted to him under paragraph 8 of this Agreement shall become vested and exercisable for three months commencing on the Termination Date.
Appears in 1 contract
Sources: Employment Agreement (Humana Inc)
Severance Payments. 6.1 (a) If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination ▇▇▇▇▇▇ is (ix) by the Company for Cause, terminated without Cause (iias defined in section 4(c) by reason of death or Disability below) or (iiiy) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation terminates as a result of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined as defined by treating section 4(a) below) followed by a Potential Change Triggering Event (as defined in Control as a Change in Control in applying the definition of Good Reasonsection 4(b) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee levelbelow), then as otherwise established by J. ▇▇▇▇▇▇ or one will be entitled to receive in satisfaction of its Subsidiariesall obligations (other than as provided in section 2 above) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, that the Company shall pay may have to ▇▇▇▇▇▇: (i) in the Executive case of clause (x) hereof, severance compensation equal to nine (9) months of her base salary then in effect; or in the case of clause (y) hereof, severance compensation equal to nine (9) months of her base salary plus her maximum potential bonus amount for nine (9) months; in either case, less applicable taxes and withholding paid in a lump sum amounton the 60th day following ▇▇▇▇▇▇’▇ termination of employment; and, in cash, equal to the sum case of either clause (ix) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwisey), and if needed by ▇▇▇▇▇▇, (ii) a pro rata portion to her then-current health insurance coverage, at the Date of Termination of then current employee cost, during the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year nine (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (249) month period after following a termination in the Date case of Termination, clause (x) or during the Company shall arrange to provide nine (9) month period following a resignation in the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice case of Termination clause (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reasony). Benefits otherwise receivable by Such benefits will be provided for the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four nine (249) month period following the Executivedate of ▇▇▇▇▇▇’▇ termination. In addition, in the event that ▇▇▇▇▇▇ is terminated without Cause, the vesting of 100% of all stock options, stock appreciation rights, restricted stock units and any other equity awards granted to ▇▇▇▇▇▇ under the Company’s equity incentive plans that as of the date of such termination remain unvested shall accelerate, to the extent permissible by law, notwithstanding and in addition to any existing vesting provisions set forth in the applicable equity award agreement and/or the Company equity incentive plan. The receipt of the foregoing severance compensation, health insurance coverage and acceleration of vesting pursuant to this Section 3 will be subject to ▇▇▇▇▇▇ signing and not revoking a release of claims agreement in a form reasonably acceptable to the Company, and such release becoming effective within forty-five (45) days of ▇▇▇▇▇▇’▇ termination and not thereafter being revoked. To the extent that any of the health insurance coverage benefits provided in this section 3(a) would result in unintended tax consequences under Code Section 105(h) or its analog in the Patient Protection and Affordable Care Act of 2010, Company shall in lieu of providing such benefits provide ▇▇▇▇▇▇ with a lump sum payment equal to nine (9) months of COBRA continuation coverage on the 55th day following ▇▇▇▇▇▇’▇ termination of employment.
(b) For the sake of clarity, no severance benefit that is paid on account of ▇▇▇▇▇▇’▇ termination of employment will be paid unless and until ▇▇▇▇▇▇ incurs a “separation from service” under the default rules of Section 409A of the Internal Revenue Code of 1986, as amended (and the “Code”). Notwithstanding any such benefits actually received by the Executive shall be reported other provision of this Agreement to the Company by contrary, if ▇▇▇▇▇▇ is a “specified employee” within the Executive).
6.2 The payments provided for in meaning of Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration 409A of the seven-day revocation period described in Code and the related guidance (“Section 6.6 without revocation 409A”) at the time of ▇▇▇▇▇▇’▇ separation from service, then only that portion of the Release severance and Waiver by benefits set forth in section 3(a) above, together with any other severance payments or benefits, that may be considered deferred compensation under Section 409A, which (when considered together) do not exceed the ExecutiveSection 409A Limit (as defined below) and which qualify as separation pay under Treasury Regulation Section 1.409A-1(b)(9)(iii), unless may be paid within the Company determines in good faith that such payments are required to be delayed for a period of first six (6) months following ▇▇▇▇▇▇’▇ separation from service in order accordance with section 3(a) above or (for payments or benefits not provided under this Agreement) with the payment schedule applicable to satisfy each such other payment or benefit. Otherwise, the requirements portion of Internal Revenue Code §409A(a)(2)(B)(i)the severance and benefits provided under this Agreement, together with any other severance payments or benefits that may be considered deferred compensation under Section 409A, that would otherwise be payable within the six (6) month period following ▇▇▇▇▇▇’▇ separation from service will accrue during such six (6) month period and will be paid in which case the Company shall so advise the Executive, and such payments shall be made a lump sum on the earlier of (i) date six (6) months after and one (1) day following the Date date of Termination ▇▇▇▇▇▇’▇ separation from service (or the next business day if such date is not business day). All remaining severance payments and benefits will be payable in accordance with the payment schedule applicable to such payments or benefits. For purposes of this Agreement, “Section 409A Limit” means the lesser of two (2) times: (i) the sum of ▇▇▇▇▇▇’▇ annualized compensation based upon the annual rate of pay for services provided to the Company for the taxable year of ▇▇▇▇▇▇ preceding the taxable year of ▇▇▇▇▇▇’▇ separation from service from the Company as determined under Treasury Regulation Section 1.409A-1(b)(9)(iii)(A)(1) and any related Internal Revenue Service guidance; or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following maximum amount that may be taken into account under a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made qualified plan pursuant to any long-term incentive plans, stock option or equity participation right plansSection 401(a)(17) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposedfor the year in which such separation from service occurs.
Appears in 1 contract
Sources: Severance and Change of Control Agreement (Kratos Defense & Security Solutions, Inc.)
Severance Payments. 6.1 4.1 If the Executive’s employment is terminated following a Change Qualifying Termination shall occur, in Control addition to any payments and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by benefits to which the Executive without Good Reason, and provided that the seven-day revocation period described in is entitled under Section 6.6 has expired without revocation of the Release and Waiver by the Executive3 hereof, the Company shall pay the Executive the payments described in this Section 6.1 4.1 (the “Severance Payments”); provided, however, that, in the case of clauses (A), (B), (C), (D) and (F) below, the Executive shall have executed and not revoked a release of claims in addition the form set forth in Exhibit A hereto. The Executive shall also be entitled to the Severance Payments (and any payments and benefits described in Sections 5.1 and 5.2 hereof (but not under Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason 3) if the Executive’s employment is terminated prior to by the Company other than (x) for Cause or (y) by reason of death or Disability within the six (6) month period immediately preceding a Change in Control without Cause at and the direction Executive reasonably demonstrates that such termination is otherwise in connection with or in anticipation of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if that actually occurs during the Executive terminates his employment with Good Reason prior to term of the Agreement (a “Pre-Change in Control Termination”); provided, however, that, in the case of clauses (determined A), (B), (C), (D) and (F) below, Executive shall have executed and not revoked a release of claims in the form set forth in Exhibit A hereto; and provided further, however, that any such payments shall be offset by treating a Potential Change in Control as a Change in Control in applying the definition amount of Good Reason) if severance previously paid to the circumstance Executive under any employment agreement between the Executive and the Company and, to the extent permitted by Section 409A of the Code, any other severance policy, plan or event which constitutes Good Reason occurs at program of the direction of such PersonCompany.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times seventy-five (75%) of the Executive’s annual base salary as approved by the Compensation Committee of the Board then in effect (or immediately prior to be paid to the Executive (orany reduction resulting in a termination for Good Reason, if applicable) (the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year “Change in which the Date of Termination occursControl Salary”).
(B) Notwithstanding any provision of any Bonus Planannual incentive plan to the contrary, the Company shall pay to the Executive a lump sum an amount, in cash, equal to the sum of (i) any unpaid incentive compensation which has been allocated or awarded to the Executive for a completed fiscal year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant plan and which, as of the Date of Termination, is contingent only upon the continued employment of the Executive to Section 5.2 hereof or otherwise)a subsequent date, and (ii) a pro rata portion to the Date of Termination of the maximum Executive’s target bonus amount payable to the Executive under all Bonus Plans with respect to for the year (or any portion thereof) in which the Date of Termination occursoccurs (or the target in effect immediately prior to the first occurrence of an event or circumstance constituting Good Reason), treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum target bonus amount by a fraction, the numerator of which is fraction obtained by dividing the number of days in full months and any fractional portion of a month during such year (or portion thereof) which elapsed to through the Date of Termination and the denominator of which is the number of days in such year by twelve (or portion thereof12).
(C) For a twenty-four (24) the six month period after immediately following the Date of Termination, the Company shall arrange to provide the Executive (which includes the Executive’s eligible dependents for purposes of this subsection (C)) with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits those which the Executive is was receiving immediately prior to the Notice Date of Termination (without giving effect or immediately prior to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.resulting in
Appears in 1 contract
Sources: Change in Control Agreement (Insignia Systems Inc/Mn)
Severance Payments. 6.1 The Severance Pay set forth in Sections 1.1, 1.3, 1.8 and 1.9 shall be paid in accordance with the Company’s regular payroll practices or benefit policies, as applicable; provided, however, that in no event: (i) shall the payment of such Severance Pay commence until after the Severance and Settlement Agreement becomes final and binding and (ii) except as set forth otherwise in the second to last sentence of this Section 1.4, shall any element of the Severance Pay be paid earlier than the date that is six (6) months following the Executive’s separation from service (within the meaning of Code Section 409A(a)(2)(A)(i) of the Internal Revenue Code of 1986, as amended (the “Code”), unless the Executive is not a “specified employee” within the meaning of Code Section 409A(a)(2)(B)(i) immediately prior to such separation from service. If there is any delay in the payment of any element of the Severance Pay due to the operation of the preceding sentence, then once the conditions to payment of such element have been met such payments will begin in accordance with the Company’s regular payroll practices; provided that any amounts which would have been paid previous thereto but for the delay imposed by the preceding sentence will be paid in a lump sum to the Executive as soon as such conditions to payment are met. Any and all applicable federal, state and local taxes and withholdings shall be withheld from any Severance Pay. Notwithstanding the delay on the payment of Severance Pay imposed by subsection (ii) of the first sentence of this Section 1.4, following such time as the Severance and Settlement Agreement becomes final and binding, but prior to the date that is six (6) months following the Executive’s separation from service, the Executive shall be entitled to such of the medical, dental and other benefits provided by Section 1.3 of this Agreement as do not constitute nonqualified deferred compensation subject to Code Section 409A. If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Without Cause or by the Executive with for Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will Reason, but such termination does not constitute a Change in Control or if “separation from service” within the meaning of Code Section 409A(a)(2)(A)(i), then the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments will still be entitled to the Executive payments otherwise called for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term 1.1 of this Agreement, unless but such termination is (i) payments will be made in the manner called for by the Company for Cause, (ii) by reason of death or Disability or (iii) by this Section 1.4 beginning after such time as the Executive without Good Reasondoes have a “separation of service”, all outstanding stock options held by and the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion amount of such stock options for which vesting has been accelerated until the seven-day revocation period described in payments will be computed under Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or 1.1 as if the Executive terminates his employment with Good Reason prior to had had a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying “separation from service” on the definition date of such termination Without Cause or for Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.”
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination 3. Section 1.8 of the Executive’s employment following a Change Agreement is deleted and replaced in Control (in either category, a “Change in Control Payment”) is subject to its entirety with the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.following:
Appears in 1 contract
Severance Payments. 6.1 4.1 If the Executive’s employment is terminated following a Change Qualifying Termination shall occur, in Control addition to any payments and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by benefits to which the Executive without Good Reason, and provided that the seven-day revocation period described in is entitled under Section 6.6 has expired without revocation of the Release and Waiver by the Executive3 hereof, the Company shall pay the Executive the payments described in this Section 6.1 4.1 (the “Severance Payments”); provided, however, that, in the case of clauses (A), (B), (C), (D) and (F) below, the Executive shall have executed and not revoked a release of claims in addition the form set forth in Exhibit A hereto. The Executive shall also be entitled to the Severance Payments (and any payments and benefits described in Sections 5.1 and 5.2 hereof (but not under Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason 3) if the Executive’s employment is terminated prior to by the Company other than (x) for Cause or (y) by reason of death or Disability within the six (6) month period immediately preceding a Change in Control without Cause at and the direction Executive reasonably demonstrates that such termination is otherwise in connection with or in anticipation of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if that actually occurs during the Executive terminates his employment with Good Reason prior to term of the Agreement (a “Pre-Change in Control Termination”); provided, however, that, in the case of clauses (determined A), (B), (C), (D) and (F) below, Executive shall have executed and not revoked a release of claims in the form set forth in Exhibit A hereto; and provided further, however, that any such payments shall be offset by treating a Potential Change in Control as a Change in Control in applying the definition amount of Good Reason) if severance previously paid to the circumstance Executive under any employment agreement between the Executive and the Company and, to the extent permitted by Section 409A of the Code, any other severance policy, plan or event which constitutes Good Reason occurs at program of the direction of such PersonCompany.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times seventy five percent (75%) of the Executive’s annual base salary as approved by the Compensation Committee of the Board then in effect (or immediately prior to be paid to the Executive (orany reduction resulting in a termination for Good Reason, if applicable) (the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year “Change in which the Date of Termination occursControl Salary”).
(B) Notwithstanding any provision of any Bonus Planannual incentive plan to the contrary, the Company shall pay to the Executive a lump sum an amount, in cash, equal to the sum of (i) any unpaid incentive compensation which has been allocated or awarded to the Executive for a completed fiscal year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant plan and which, as of the Date of Termination, is contingent only upon the continued employment of the Executive to Section 5.2 hereof or otherwise)a subsequent date, and (ii) a pro rata portion to the Date of Termination of the maximum Executive’s target bonus amount payable to the Executive under all Bonus Plans with respect to for the year (or any portion thereof) in which the Date of Termination occursoccurs (or the target in effect immediately prior to the first occurrence of an event or circumstance constituting Good Reason), treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum target bonus amount by a fraction, the numerator of which is fraction obtained by dividing the number of days in full months and any fractional portion of a month during such year (or portion thereof) which elapsed to through the Date of Termination and the denominator of which is the number of days in such year by twelve (or portion thereof12).
(C) For a twenty-four (24) the six month period after immediately following the Date of Termination, the Company shall arrange to provide the Executive (which includes the Executive’s eligible dependents for purposes of this subsection (C)) with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits those which the Executive is was receiving immediately prior to the Notice Date of Termination (without giving effect or immediately prior to any reduction resulting in a termination for Good Reason, if applicable); provided, however, that (i) the Executive’s and his qualified dependents’ COBRA eligibility period shall include the period during which the Company is providing benefits under this subsection (C); (ii) unless the Executive consents to a different method (or elects COBRA coverage at applicable COBRA rates), such health insurance benefits shall be provided through a third-party insurer; and (iii) the Executive shall be responsible for the payment of premiums for such benefits subsequent to a Change in Control which reduction constitutes Good Reason)the same amount as active employees of the Company. Benefits otherwise receivable by the Executive pursuant to this Section 6.1(Csubsection (C) shall be reduced to the extent comparable benefits (including continued coverage for any preexisting medical condition of any person covered by the benefits provided to the Executive and his eligible dependents immediately prior to the Date of Termination) are actually received by or made available to the Executive without cost by a subsequent employer during the twenty-four (24) month period following the Executive’s termination Date of employment Termination (and any such benefits actually received by or made available to the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for . Notwithstanding the foregoing, in Section 6.1 the event of a Pre-Change in Control Termination, on the sixtieth (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th60th) day following the expiration of the seven-day revocation period described Change in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case Control the Company shall so advise pay or reimburse the Executive for any amounts or benefits it would have been responsible to pay or provide to the Executive under this Section 4.1(C) during the period prior to the Change in Control, had the Change in Control occurred on the Date of Termination.
(D) If the Executive would have become entitled to benefits under the Company’s post-retirement health care or life insurance plans (as in effect immediately prior to the Date of Termination (or immediately prior to any reduction resulting in a termination for Good Reason, if applicable)) had the Executive, and such payments shall be made on ’s employment terminated at any time during the earlier period of (i) six (6) twenty four months after the Date of Termination Termination, the Company shall provide such post-retirement health care or life insurance benefits to the Executive (subject to any employee contributions required under the terms of such plans in the same amounts as active employees of the Company) commencing on the later of (i) the date that such coverage would have first become available or (ii) the death date that benefits described in subsection (C) of this Section 4.1 terminate.
(E) The Company shall pay the Executive.
6.3 If , at a daily salary rate calculated from the Executive’s employment is terminated following annual base salary in effect immediately prior to the Date of Termination (or immediately prior to any reduction resulting in a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, if applicable), a lump sum amount equal to all outstanding stock options held by earned but unused paid time off days through the Date of Termination.
(F) The Company shall pay, no later than the last day of the calendar year in which they are incurred, the reasonable fees and expenses of a full service nationally recognized executive outplacement firm until the earlier of the date the Executive for secures new employment or the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for date which vesting has been accelerated until the sevenis twenty-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated four months following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change Date of Termination; provided that in Control without Cause at no event shall the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction aggregate amount of such Personpayments exceed $5,000.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Sources: Change in Control Agreement (Insignia Systems Inc/Mn)
Severance Payments. 6.1 If a. Except as provided in Section 5(b), upon the Executivetermination of Employee’s employment by the Company other than for Cause prior to a Change in Control, the Employee shall be entitled to an amount equal to the aggregate of two times: (i) the annual rate of base salary then being paid to the Employee, plus (ii) the average of the past three years short term bonus pay, plus (iii) the Company’s portion of 12 months’ premiums under any health, disability and life insurance plan or program in which the Employee was entitled to participate immediately prior to the Termination Date (the aggregated amount, the “Severance Pay”), which shall be paid to Employee by the Company over a period of 12 months from the Termination Date in accordance with the Company’s regular payroll cycle, commencing on the first regular payroll date of the Company that occurs more than 60 days after the Termination Date (and including any installment that would have otherwise been paid on regular payroll dates during the period of 60 days following the Termination Date), provided the conditions specified in Section 5(c) have been satisfied.
b. Notwithstanding Section 5(a) and subject to the limitation in Section 5(e), if (i) the Employee’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Employee for Good Reason if Reason, and (ii) the Executive’s employment is terminated prior to Termination Date occurs within 24 months immediately following a Change in Control Control, the Employee shall receive 2.99 times the Severance Pay calculated in accordance with Section 5(a), which shall be paid to Employee by the Company in a lump sum on the later of 60th day following the Termination Date or the closing on the event constituting the Change in Control, provided the conditions specified in Section 5(c) have been satisfied.
c. Notwithstanding the foregoing provisions of Section 5(a) and (b), the Company will not be obligated to make any payments to or on behalf of Employee under Section 5(a) and (b), as applicable, unless (i) Employee signs a release of claims in favor of the Company in a form as prepared by the Company (the “Release”) and delivered to Employee no later than five business days after the Termination Date, (ii) all applicable consideration periods and rescission periods provided by law with respect to the Release have expired without Cause at Employee rescinding the direction of a Person who has entered into an agreement Release, and (iii) Employee is in strict compliance with the Company terms of this Agreement as of the consummation dates of which the payments. The cessation of these payments will constitute be in addition to, and not as an alternative to, any other remedies at law or in equity available to the Company, including without limitation the right to seek specific performance or an injunction.
d. If, when the Employee’s termination of employment occurs, the Employee is a Change in Control or specified employee within the meaning of section 409A of the Code, and if the Executive terminates his employment Severance Pay would be considered deferred compensation under section 409A of the Code, and finally if an exemption from the six-month delay requirement of section 409A(a)(2)(B)(i) of the Code is not available, the Employee’s Severance Pay payments for the first six months following separation from service shall be paid to the Employee in a single lump sum on the first day of the seventh month after the month in which the Employee’s separation from service occurs.
e. In the event that the vesting, acceleration and payment of any equity awards or other compensation or benefits, together with Good Reason prior all other payments and the value of any benefit received or to be received by the Employee under this Agreement would result in all or a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction portion of such Person.
(Apayment being subject to excise tax under Section 4999 of the Code, then the amounts due under Section 5(b) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, that the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to Employee shall be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of either (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination full payment or (ii) such lesser amount determined by the death Company in accordance with this Section 5(e) that would result in no portion of the Executive.
6.3 If payment being subject to excise tax under Section 4999 of the Executive’s Code (the “Excise Tax”), whichever of the foregoing amounts, taking into account the applicable Federal, state, and local employment is terminated taxes, income taxes, and the Excise Tax, results in the receipt by the Employee, on an after-tax basis, of the greatest amount of the payment notwithstanding that all or some portion of the payment may be taxable under Section 4999 of the Code. In the event the amounts due under Section are reduced, the amounts shall be reduced in the following order of priority: first, with respect to any amount that does not constitute the “deferral of compensation” under Section 409A of the Code and regulations promulgated thereunder, disregard the acceleration in the time of payment and then disregard the acceleration of vesting as a result of a Change in Control and during second, with respect to any amount that constitutes the term “deferral of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in compensation” under Section 6.6 has expired without revocation 409A of the Release Code and Waiver by regulations promulgated thereunder, disregard the Executive, acceleration in the time of payment and any such exercise before then disregard the seven-day revocation period has expired without revocation acceleration of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following vesting as a result of a Change in Control first with respect to Company funded amounts and then the Employee’s deferrals, in each case only to the extent necessary to satisfy (ii) above. All determinations required to be made under this Section 5(e) shall be made by a nationally recognized accounting firm that is the Company without Cause or by the Executive with Good Reason if the ExecutiveCompany’s employment is terminated outside auditor immediately prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with event triggering the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is payments that are subject to the Excise Tax (the “Accounting Firm”). The Company shall cause the Accounting Firm to provide detailed supporting calculations of its determinations to the Company and Employee. Notice must be given to the Accounting Firm within 15 business days after an event entitling Employee to an amount due under this Agreement. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The Accounting Firm’s determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). For the purposes of all calculations under Section 280G of the Code and the application of this Section 5.1, all determination as hereinafter definedto present value shall use 120 percent of the applicable Federal rate (determined under Section 1274(d) of the Code) compounded based on the nature of the payment, as in effect on the Date of Termination, but if not otherwise specified, compounded on a semiannual basis. The determination by the Accounting Firm shall be final and binding on the Company and the Employee.
f. If Employee’s employment with the Company is terminated by the Company for Cause or for any reason not covered by Section 5(a) or 5(b), then the Company shall pay to Employee only his base salary and any accrued but unused vacation or PTO earned through the Executive additional amounts Termination Date.
g. In addition to the benefits otherwise provided in Section 5, the Employee shall be entitled to the following benefits and payments upon the Employee’s termination of employment: (i) the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net payment of the Excise Tax shall equal Employee’s base salary and any other form or type of compensation earned, vested and payable through the total amount Date of Termination; (ii) the right to receive all Change in Control Payments benefits to which the Executive would have been entitled if Employee is vested on the Excise Tax had not been imposed. For purposes Date of this Section 6.4, Termination in accordance with the term “Excise Tax” shall mean terms under the tax imposed by Section 4999 Company pension and welfare benefit plans or any successor of the Code such plan and any similar tax that may hereafter be imposedother plan or agreement relating to retirement benefits; and (iii) the right to exercise and to receive all rights in which the Employee is vested on the Date of Termination, in accordance with the terms of all awards under any Company stock purchase and stock incentive plans or programs, or any successor to any such plans or programs.
Appears in 1 contract
Sources: Executive Severance Agreement (Alerus Financial Corp)
Severance Payments. 6.1 If Subject to Section 6.2 hereof and subject to Executive entering into a release of claims in substantially the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executiveform attached hereto as Appendix I, the Company shall pay the Executive the payments and provide the benefits described in this Section 6.1 (the “"Severance Payments”") upon the termination of the Executive's employment following a Change in Control during the term of this Agreement, in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof Section 5.0 hereof, unless such termination is (but not Section 5.3 hereof)A) by the Company for Cause, (B) by reason of death or Disability, or (C) by the Executive without Good Reason. The Executive’s 's employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s 's employment is terminated prior to a Change in Control without Cause at the direction (or action which constitutes a direction) of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction (or action which constitutes a direction) of such Person.
(Ai) In lieu Subsequent to the Date of any further salary Termination, the Company shall make cash severance payments to the Executive for periods subsequent over a thirty-six (36) month period in substantially equal bi-weekly installments, in an amount equal to the Date sum of Termination and in lieu (a) the higher of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s 's annual base salary as approved by in effect immediately prior to the Compensation Committee occurrence of the Board event or circumstance upon which the Notice of Termination is based or in effect immediately prior to be the Change in Control, and (b) the higher of the highest annual bonus paid to the Executive (or, if in the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to three years preceding the year in which the Date of Termination occurs or paid in the three years preceding the year in which the Change in Control occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twentythirty-four six (2436) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident medical and health dental insurance benefits substantially similar to the life, disability, accident and health insurance benefits those which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C6.1(ii) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twentythirty-four six (2436) month period following the Executive’s 's termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive). If the benefits provided to the Executive under this Section 6.1(ii) shall result in a decrease, pursuant to Section 6.2, in the Change in Control Payments and these Section 6.1(ii) benefits are thereafter reduced pursuant to the immediately preceding sentence because of the receipt of comparable benefits, the Company shall, at the time of such reduction, pay to the Executive the lesser of (a) the amount of the decrease made in the Severance Payments pursuant to Section 6.2, or (b) the maximum amount which can be paid to the Executive without being, or causing any other payment to be, nondeductible by reason of section 280G of the Code.
6.2 The payments provided for in Section 6.1 (Notwithstanding any other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term provisions of this Agreement, unless such termination is (i) by in the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If that any payment or benefit made available received or to be received by the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or the termination of the Executive’s ' s employment following a Change (whether or not received pursuant to the terms of this Agreement) (all such payments and benefits, including but not limited to the Severance Payments, being hereinafter called the "Total Payments") would be subject in Control (whole or in either categorypart to the Excise Tax, a “Change in Control Payment”) then the Severance Payments shall be reduced to the extent, but only to the extent, necessary so that no portion of the Total Payments is subject to the Excise Tax; provided, that no such reduction shall be effected unless the net amount of the Total Payments after such reduction in the Severance Payments and after deduction of the net amount of federal, state and local income taxes on such reduced Total Payments would be greater than the excess of (a) the net amount of the Total Payments without such reduction in the Severance Payments but after deduction of the net amount of federal, state and local income taxes (other than the Excise Tax) on such unreduced Total Payments, over (b) the Excise Tax (to which the Total Payments are subject. The determination as hereinafter defined)to whether a reduction in Severance Payments is to be made under this Section 6.2 and, if so, the amount of any such reduction shall be made by the Company's auditors or by such other firm of certified public accountants, benefits consulting firm or legal counsel as the Board may designate prior to the Change in Control. The Company shall provide the executive with its calculations of the amounts referred to in this Section 6.2 and such supporting materials as are reasonably necessary for the Executive to evaluate the Company's calculations.
6.3 The Company also shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which legal fees and expenses incurred by the Executive would have been entitled as a result of a termination which entitles the Executive to the Severance Payments (including all such fees and expenses, if any, incurred in disputing any such termination or in seeking in good faith to obtain or enforce any benefit or right provided by this Agreement or in connection with any tax audit or proceeding to the Excise Tax had not been imposed. For purposes extent attributable to the application of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section section 4999 of the Code to any payment or benefit provided hereunder). Such payments shall be made within five (5) business days after delivery of the Executive's written requests for payment accompanied with such evidence of fees and any similar tax that expenses incurred as the Company reasonably may hereafter be imposedrequire.
Appears in 1 contract
Sources: Executive Officer Change in Control Agreement (Polycom Inc)
Severance Payments. 6.1 If The Employer shall pay the Executive’s Employee the payments described in this Section 10.1 (the "Severance Payments") upon the termination of the Employee's employment is terminated following a Change in Control and during prior to the term end of this Agreementthe Change-in-Control Protective Period, in addition to any payments and benefits to which the Employee is entitled under Sections 5, 6, 7 and 8.1 hereof, unless such termination is (i) by the Company Employer for Cause, (ii) by reason of death or Disability Disability, or (iii) by the Executive Employee without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation . For purposes of the Release and Waiver by the Executivethis Agreement, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s Employee's employment shall be deemed to have been terminated by the Employer without Cause following a Change in Control by the Company without Cause or by the Executive Employee with Good Reason following a Change in Control, as the case may be, if (I) the Executive’s Employee's employment is terminated without Cause prior to a Change in Control without Cause and such termination was at the request or direction of a Person who has entered into an agreement with the Company Employer the consummation of which will would constitute a Change in Control or if Control, (II) the Executive Employee terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if and the circumstance or event which constitutes Good Reason occurs at the request or direction of such Person., or (III) the Employee's employment is terminated by the Employer without Cause prior to a Change in Control (but following a Potential Change in Control) and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. For purposes of any determination regarding the applicability of the immediately preceding sentence, any position taken by the Employee shall be presumed to be correct unless the Employer establishes to the Committee by clear and convincing evidence that such position is not correct. Exhibit 10.2
(A) In lieu of any further salary payments to the Executive Employee for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the ExecutiveEmployee, the Company Employer shall pay to the Executive Employee a lump sum severance payment, in cash, equal to two three (3) times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded the greater of the Employee's Base Salary in effect immediately prior to the Executive for a completed year occurrence of the event or other measuring period preceding circumstance upon which the Date Notice of Termination under any such Bonus Plan but has not yet been paid (pursuant is based or the Employee's Base Salary in effect immediately prior to Section 5.2 hereof or otherwise)the Change in Control, and (ii) a pro rata portion to the Date greater of Termination (x) the Annual Bonus earned by the Employee in respect of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the Employer's fiscal year (or any portion thereof) immediately preceding that in which the Date of Termination occurs, treating any (y) the average Annual Bonus so earned in respect of the three fiscal years immediately preceding that in which the Change in Control occurs, or (z) $736,000. Of the foregoing payments, an amount equal to one year's Base Salary plus one year's Annual Bonus shall be in consideration of and all performance goals allocated to Employee's obligations under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof)Section 13.2.
(CB) For a twenty-four (24) month period 18 months after the Employee's Date of Termination, the Company shall arrange to provide will maintain in full force and effect, for the Executive with Employee's continued benefit (and that of all family members and other dependents who were enrolled in the programs on the Employee's Date of Termination) all life, disabilitymedical and dental insurance programs in which the Employee (and members of the Employee's family or other dependents) were participating or by which such individuals were covered immediately before the Employee's Date of Termination. If the terms of any of such programs do not allow the continued participation described in the preceding sentence, accident and health insurance the Company will: (i) provide benefits that are substantially similar (including eligibility conditions, conditions on benefits, the value of benefits and the scope of coverage) to those provided by the life, disability, accident medical and health dental insurance benefits programs in which the Executive is receiving Employee, members of the Employee's family and dependents were participating immediately prior to before the Notice Employee's Date of Termination Termination; and (without giving effect to ii) ensure that any reduction eligibility or other conditions on benefits under these programs, including deductibles and co-payments, will be administered by applying the Employee's experience under any predecessor program in such benefits subsequent to a Change in Control which reduction constitutes Good Reason)the Employee (and members of the Employee's family and dependents) were participating before Termination. Benefits otherwise receivable by the Executive pursuant With respect to this Section 6.1(C) 10.1(B), any benefits or payments relating to medical and dental insurance that are provided after completion of the applicable continuation period permitted under the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended, and any benefits or payments relating to life insurance shall be reduced subject to the extent comparable following: (A) the amount of expenses eligible for reimbursement or the benefits are actually received by or made available payments provided under this Section 10.1(B) during any taxable year of the Employee may not affect the expenses eligible for reimbursement or the benefits or payments to be provided to the Executive without cost during Employee in any other taxable year; (B) the twenty-four (24) month period following the Executive’s termination reimbursement of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall an eligible expense must be made on or before the earlier last day of the Employee's taxable year following the taxable year in which the expense was incurred; and (i) six (6) months after the Date of Termination or (iiC) the death of right to reimbursement or to such benefits or payments is not subject to liquidation or exchange for another benefit. To the Executive.
6.3 If the Executive’s employment is terminated following a Change extent that any benefit extended under this Section 10.1(B) would result in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive taxable compensation for the purchase of shares of Common Stock of J. ▇▇▇▇ Employee, the Employee shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options be solely responsible for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Persontaxes.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Severance Payments. 6.1 If The Employer shall pay the ExecutiveEmployee the payments described in this Section 10.1 (the “Severance Payments”) upon the termination of the Employee’s employment is terminated following a Change in Control and during prior to the term end of this Agreementthe Change-in-Control Protective Period, in addition to any payments and benefits to which the Employee is entitled under Sections 5, 6, 7 and 8.1 hereof, unless such termination is (i) by the Company Employer for Cause, (ii) by reason of death or Disability Disability, or (iii) by the Executive Employee without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation . For purposes of the Release and Waiver by the Executivethis Agreement, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The ExecutiveEmployee’s employment shall be deemed to have been terminated by the Employer without Cause following a Change in Control by the Company without Cause or by the Executive Employee with Good Reason following a Change in Control, as the case may be, if (I) the ExecutiveEmployee’s employment is terminated without Cause prior to a Change in Control without Cause and such termination was at the request or direction of a Person who has entered into an agreement with the Company Employer the consummation of which will would constitute a Change in Control or if Control, (II) the Executive Employee terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if and the circumstance or event which constitutes Good Reason occurs at the request or direction of such Person, or (III) the Employee’s employment is terminated by the Employer without Cause prior to a Change in Control (but following a Potential Change in Control) and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. For purposes of any determination regarding the applicability of the immediately preceding sentence, any position taken by the Employee shall be presumed to be correct unless the Employer establishes to the Committee by clear and convincing evidence that such position is not correct.
(A) In lieu of any further salary payments to the Executive Employee for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the ExecutiveEmployee, the Company Employer shall pay to the Executive Employee a lump sum severance payment, in cash, equal to two (2) times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded the greater of the Employee’s Base Salary in effect immediately prior to the Executive for a completed year occurrence of the event or other measuring period preceding circumstance upon which the Date Notice of Termination under any such Bonus Plan but has not yet been paid (pursuant is based or the Employee’s Base Salary in effect immediately prior to Section 5.2 hereof or otherwise)the Change in Control, and (ii) a pro rata portion to the Date greater of Termination (x) the annual Bonus earned by the Employee in respect of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the Employer’s fiscal year (or any portion thereof) immediately preceding that in which the Date of Termination occurs, treating any (y) the average annual Bonus so earned in respect of the two fiscal years immediately preceding that in which the Change in Control occurs, or (z) $350,000. Of the foregoing payments, one-half of all such payments shall be in consideration of and all performance goals allocated to Employee’s obligations under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof)Section 13.2.
(CB) For a twenty-four (24) month period 18 months after the Employee’s Date of Termination, the Company shall arrange to provide will maintain in full force and effect, for the Executive with Employee’s continued benefit (and that of all family members and other dependents who were enrolled in the programs on the Employee’s Date of Termination) all life, disabilitymedical and dental insurance programs in which the Employee (and members of the Employee’s family or other dependents) were participating or by which such individuals were covered immediately before the Employee’s Date of Termination. If the terms of any of such programs do not allow the continued participation described in the preceding sentence, accident and health insurance the Company will: (i) provide benefits that are substantially similar (including eligibility conditions, conditions on benefits, the value of benefits and the scope of coverage) to those provided by the life, disability, accident medical and health dental insurance benefits programs in which the Executive is receiving Employee, members of the Employee’s family and dependents were participating immediately prior to before the Notice Employee’s Date of Termination Termination; and (without giving effect to ii) ensure that any reduction eligibility or other conditions on benefits under these programs, including deductibles and co-payments, will be administered by applying the Employee’s experience under any predecessor program in such benefits subsequent to a Change in Control which reduction constitutes Good Reason)the Employee (and members of the Employee’s family and dependents) were participating before Termination. Benefits otherwise receivable by the Executive pursuant With respect to this Section 6.1(C) 10.1(B), any benefits or payments relating to medical and dental insurance that are provided after completion of the applicable continuation period permitted under the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended, and any benefits or payments relating to life insurance shall be reduced subject to the extent comparable following: (A) the amount of expenses eligible for reimbursement or the benefits are actually received by or made available payments provided under this Section 10.1(B) during any taxable year of the Employee may not affect the expenses eligible for reimbursement or the benefits or payments to be provided to the Executive without cost during Employee in any other taxable year; (B) the twenty-four (24) month period following the Executive’s termination reimbursement of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall an eligible expense must be made on or before the earlier last day of the Employee’s taxable year following the taxable year in which the expense was incurred; and (i) six (6) months after the Date of Termination or (iiC) the death of right to reimbursement or to such benefits or payments is not subject to liquidation or exchange for another benefit. To the Executive.
6.3 If the Executive’s employment is terminated following a Change extent that any benefit extended under this Section 10.1(B) would result in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive taxable compensation for the purchase of shares of Common Stock of J. ▇▇▇▇ Employee, the Employee shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options be solely responsible for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Persontaxes.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Severance Payments. 6.1 If the Executive’s employment is terminated following a Change in Control (a) From and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company after the consummation of which will constitute a Change in of Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments and subject to the Executive for periods subsequent to the Date other provisions of Termination and in lieu of any severance benefit otherwise payable to the Executivethis Section 1, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, Employee an amount equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive Employee’s then-current base salary for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the one year (or any portion thereofthe “Severance Payment”) in which if (x) the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated Employee is employed by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice consummation of Termination (without giving effect to any reduction in such benefits subsequent to a Change in of Control which reduction constitutes Good Reason). Benefits otherwise receivable and (y) (i) upon consummation of such Change of Control the Employee is not hired by the Executive pursuant to this Section 6.1(C) shall be reduced Buyer or retained by the Company on substantially similar terms of employment as those enjoyed by the Employee immediately prior to the extent comparable benefits are actually received by consummation of such Change of Control, (ii) the Employee’s employment with the Company or made available the Buyer, as applicable, is terminated without Cause (as defined below) at any time prior to the Executive without cost during first anniversary of the twenty-four consummation of such Change of Control or (24iii) month period following the Executive’s termination of Employee resigns with Good Reason (as defined below) from employment (and with the Company or the Buyer, as applicable, at any such benefits actually received by the Executive shall be reported time prior to the Company by first anniversary of the Executive).
6.2 consummation of such Change of Control. The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof Severance Payment shall be made not later than in one lump sum upon the fifth (5th) day following the expiration effective date of the seven-day revocation period described in termination of such Employee’s employment with the Company or the Buyer, as the case may be.
(b) Notwithstanding anything else to the contrary herein, if upon termination, the Employee is a “specified employee” (within the meaning attributed thereto by Section 6.6 without revocation 409A of the Release Code and Waiver by the Executiveregulations thereunder) of Company, unless and if the Company determines in good faith that payments would be subject to excise tax under Code Section 409A because such payments are required to be delayed for a made within the 6-month period commencing upon the Employee’s effective date of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i)termination, in which case the Company shall so advise the Executive, and then such payments shall be made on the earlier of (i) six (6) delayed for 6 months after the Date of Termination or (ii) the death of the Executivefollowing such termination.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Sources: Change of Control Agreement (Molecular Insight Pharmaceuticals, Inc.)
Severance Payments. 6.1 If a. Except as provided in Section 5(b), upon the Executivetermination of Employee’s employment by the Company other than for Cause prior to a Change in Control, the Employee shall be entitled to an amount equal to the aggregate of one times: (i) the annual rate of base salary then being paid to the Employee, plus (ii) the average of the past three years short term bonus pay, plus (iii) the Company’s portion of 12 months’ premiums under any health, disability and life insurance plan or program in which the Employee was entitled to participate immediately prior to the Termination Date (the aggregated amount, the “Severance Pay”), which shall be paid to Employee by the Company over a period of 12 months from the Termination Date in accordance with the Company’s regular payroll cycle, commencing on the first regular payroll date of the Company that occurs more than 60 days after the Termination Date (and including any installment that would have otherwise been paid on regular payroll dates during the period of 60 days following the Termination Date), provided the conditions specified in Section 5(c) have been satisfied.
b. Notwithstanding Section 5(a) and subject to the limitation in Section 5(e), if (i) the Employee’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Employee for Good Reason if Reason, and (ii) the Executive’s employment is terminated prior to Termination Date occurs within 24 months immediately following a Change in Control Control, the Employee shall receive two times the Severance Pay calculated in accordance with Section 5(a), which shall be paid to Employee by the Company in a lump sum on the later of 60th day following the Termination Date or the closing on the event constituting the Change in Control, provided the conditions specified in Section 5(c) have been satisfied.
c. Notwithstanding the foregoing provisions of Section 5(a) and (b), the Company will not be obligated to make any payments to or on behalf of Employee under Section 5(a) and (b), as applicable, unless (i) Employee signs a release of claims in favor of the Company in a form as prepared by the Company (the “Release”) and delivered to Employee no later than five business days after the Termination Date, (ii) all applicable consideration periods and rescission periods provided by law with respect to the Release have expired without Cause at Employee rescinding the direction of a Person who has entered into an agreement Release, and (iii) Employee is in strict compliance with the Company terms of this Agreement as of the consummation dates of which the payments. The cessation of these payments will constitute be in addition to, and not as an alternative to, any other remedies at law or in equity available to the Company, including without limitation the right to seek specific performance or an injunction.
d. If, when the Employee’s termination of employment occurs, the Employee is a Change in Control or specified employee within the meaning of section 409A of the Code, and if the Executive terminates his employment Severance Pay would be considered deferred compensation under section 409A of the Code, and finally if an exemption from the six-month delay requirement of section 409A(a)(2)(B)(i) of the Code is not available, the Employee’s Severance Pay payments for the first six months following separation from service shall be paid to the Employee in a single lump sum on the first day of the seventh month after the month in which the Employee’s separation from service occurs.
e. In the event that the vesting, acceleration and payment of any equity awards or other compensation or benefits, together with Good Reason prior all other payments and the value of any benefit received or to be received by the Employee under this Agreement would result in all or a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction portion of such Person.
(Apayment being subject to excise tax under Section 4999 of the Code, then the amounts due under Section 5(b) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, that the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to Employee shall be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of either (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination full payment or (ii) such lesser amount determined by the death Company in accordance with this Section 5(e) that would result in no portion of the Executive.
6.3 If payment being subject to excise tax under Section 4999 of the Executive’s Code (the “Excise Tax”), whichever of the foregoing amounts, taking into account the applicable Federal, state, and local employment is terminated taxes, income taxes, and the Excise Tax, results in the receipt by the Employee, on an after-tax basis, of the greatest amount of the payment notwithstanding that all or some portion of the payment may be taxable under Section 4999 of the Code. In the event the amounts due under Section are reduced, the amounts shall be reduced in the following order of priority: first, with respect to any amount that does not constitute the “deferral of compensation” under Section 409A of the Code and regulations promulgated thereunder, disregard the acceleration in the time of payment and then disregard the acceleration of vesting as a result of a Change in Control and during second, with respect to any amount that constitutes the term “deferral of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in compensation” under Section 6.6 has expired without revocation 409A of the Release Code and Waiver by regulations promulgated thereunder, disregard the Executive, acceleration in the time of payment and any such exercise before then disregard the seven-day revocation period has expired without revocation acceleration of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following vesting as a result of a Change in Control first with respect to Company funded amounts and then the Employee’s deferrals, in each case only to the extent necessary to satisfy (ii) above. All determinations required to be made under this Section 5(e) shall be made by a nationally recognized accounting firm that is the Company without Cause or by the Executive with Good Reason if the ExecutiveCompany’s employment is terminated outside auditor immediately prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with event triggering the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is payments that are subject to the Excise Tax (the “Accounting Firm”). The Company shall cause the Accounting Firm to provide detailed supporting calculations of its determinations to the Company and Employee. Notice must be given to the Accounting Firm within 15 business days after an event entitling Employee to an amount due under this Agreement. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The Accounting Firm’s determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). For the purposes of all calculations under Section 280G of the Code and the application of this Section 5.1, all determination as hereinafter definedto present value shall use 120 percent of the applicable Federal rate (determined under Section 1274(d) of the Code) compounded based on the nature of the payment, as in effect on the Date of Termination, but if not otherwise specified, compounded on a semiannual basis. The determination by the Accounting Firm shall be final and binding on the Company and the Employee.
f. If Employee’s employment with the Company is terminated by the Company for Cause or for any reason not covered by Section 5(a) or 5(b), then the Company shall pay to Employee only his base salary and any accrued but unused vacation or PTO earned through the Executive additional amounts Termination Date.
g. In addition to the benefits otherwise provided in Section 5, the Employee shall be entitled to the following benefits and payments upon the Employee’s termination of employment: (i) the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net payment of the Excise Tax shall equal Employee’s base salary and any other form or type of compensation earned, vested and payable through the total amount Date of Termination; (ii) the right to receive all Change in Control Payments benefits to which the Executive would have been entitled if Employee is vested on the Excise Tax had not been imposed. For purposes Date of this Section 6.4, Termination in accordance with the term “Excise Tax” shall mean terms under the tax imposed by Section 4999 Company pension and welfare benefit plans or any successor of the Code such plan and any similar tax that may hereafter be imposed.other plan or agreement relating to retirement benefits; and (iii) the right to exercise and to receive all rights in which the Employee is vested on the Date of Termination, in accordance with the terms of all awards under any Company stock purchase and stock incentive plans or programs, or any successor to any such plans or programs.
Appears in 1 contract
Sources: Executive Severance Agreement (Alerus Financial Corp)
Severance Payments. 6.1 If (a) The Company will make the Executive’s employment severance payments specified in Section 5(b) or (c) below if this Agreement is terminated pursuant to Section 4(d) or (e). The Company will make the severance payments specified in Section 5(f) if this Agreement is terminated pursuant to Section 4(i). The Company will not be obligated for severance payments in any other event.
(b) As severance payments under this Section 5(b), the Company will pay Employee on the first day of the month following the effective date of termination of this Areement, and on the first day of each of the next succeeding twenty-three (23) months, an amount equal to 1/12th of the sum of the highest total of salary payments made by the Company to Employee in any calendar year and bonus earned by Employee (whether or not deferred) with respect to services rendered to the Company during such calendar year. Each monthly payment will be reduced by an amount equal to any retirement or supplemental retirement payment that is paid by the Company or from a Change in Control and Company-sponsored plan during the term month and by an amount equal to any disability payments Employee or his spouse receive during the month from the Company or from a Company-sponsored plan; provided, however, that this reduction shall not apply to any retirement, supplemental retirement or disability payments derived from Employee's contributions, or interest thereon, to any Company-sponsored plan. If Employee dies without a spouse or minor children surviving, or if Employee's surviving spouse and minor children die or all of Employee's surviving minor children reach age 18 before all severance payments have been made, the Company's obligations to make any further severance payments under this Section 5(b) will cease.
(c) If this Agreement is terminated pursuant to Section 4(d) or (e) after a change in control of the Company has occurred, or if a change in control of the Company occurs while the Company is making severance payments to the Employee pursuant to Section 5(b), Employee may elect to receive the severance payments specified in Section 5(b) (or the remaining balance thereof) in a lump sum. The reductions that would otherwise be applicable to severance payments under the second sentence in paragraph 5(b) shall not apply. This lump sum shall be paid within 30 days after the effective date of termination or, if a change in control occurs after termination, within 30 days after such change in control. For the purposes of this Agreement, unless such termination is (i) by "control" means the Company for Causepossession, (ii) by reason of death directly or Disability or (iii) by the Executive without Good Reasonindirectly, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release power to direct or cause the direction of the management and Waiver policies of the Company, whether through the ownership of voting securities, by contract, or otherwise, except that "control" shall not include power which derives solely from status as a corporate officer or employee. Without limiting the Executivegenerality of the foregoing, the Company shall pay the Executive the payments described a change in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment control shall be deemed to have been terminated following a Change in Control by occurred (i) if any person (within the meaning of Section 2(2) of the Securities Act of 1933 or Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) becomes the beneficial owner, directly or indirectly, of securities of the Company without Cause representing twenty-five percent (25%) or by more of the Executive with Good Reason if combined voting power of the Executive’s employment is terminated prior to a Change in Control without Cause at then outstanding securities of the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control Company, (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reasonii) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive time less than a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee majority of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date Directors of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination are persons who were directors of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a Company twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in months before such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability time or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation more than fifty percent (50%) of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation assets of the Release and Waiver by Company are sold other than in the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction usual course of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Personbusiness.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Severance Payments. 6.1 (a) If the Executive’s employment Butera (x) is terminated following a Change without Cause (as defined in Control and during the term of this Agreement, unless such termination is (isection 4(c) by the Company for Cause, (iibelow) by reason of death or Disability or (iiiy) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation terminates as a result of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined as defined by treating section 4(a) below) followed by a Potential Change Triggering Event (as defined in Control section 4(b) below), then Butera will be entitled to receive in satisfaction of all obligations (other than as a Change provided in Control in applying the definition of Good Reasonsection 2 above) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, that the Company shall pay may have to Butera: (i) in the Executive a lump sum case of clause (x) hereof, severance payment, in cash, compensation equal to two times the Executive’s annual nine (9) months of her base salary as approved by then in effect; or in the Compensation Committee case of the Board clause (y) hereof, severance compensation equal to be paid to the Executive twelve (or, if the Executive’s annual 12) months of her base salary is not presented plus her maximum potential bonus amount for approval at twelve (12) months; in either case, less applicable taxes and withholding paid on the Compensation Committee level, then as otherwise established by J. 60th day following ▇▇▇▇▇▇’▇ or one termination of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amountemployment; and, in cash, equal to the sum case of either clause (ix) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwisey), and if needed by Butera, (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twentyher then-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and current health insurance benefits substantially similar to coverage, at the lifethen current employee cost, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four nine (249) month period following a termination in the Executivecase of clause (x) or during the twelve (12) month period following a resignation in the case of clause (y). Such benefits will be provided for the applicable period following the date of ▇▇▇▇▇▇’▇ termination. In addition in the event that Butera is terminated without Cause, the vesting of 100% of all stock options, stock appreciation rights, restricted stock units and any other equity awards granted to Butera under the Company’s equity incentive plans that as of the date of such termination remain unvested shall accelerate, to the extent permissible by law, notwithstanding and in addition to any existing vesting provisions set forth in the applicable equity award agreement and/or the Company equity incentive plan. The receipt of the foregoing severance compensation, health insurance coverage and acceleration of vesting pursuant to this section 3 will be subject to Butera signing and not revoking a release of claims agreement in a form reasonably acceptable to the Company, and such release becoming effective within forty-five (45) days of ▇▇▇▇▇▇’▇ termination and not thereafter being revoked. To the extent that any of the health insurance coverage benefits provided in this section 3(a) would result in unintended tax consequences under Code Section 105(h) or its analog in the Patient Protection and Affordable Care Act of 2010, Company shall in lieu of providing such benefits provide Butera with a lump sum payment equal to nine (9) months of COBRA continuation coverage on the 55th day following ▇▇▇▇▇▇’▇ termination of employment.
(b) For the sake of clarity, no severance benefit that is paid on account of ▇▇▇▇▇▇’▇ termination of employment will be paid unless and until Butera incurs a “separation from service” under the default rules of Section 409A of the Internal Revenue Code of 1986, as amended (and the “Code”). Notwithstanding any such benefits actually received by the Executive shall be reported other provision of this Agreement to the Company by contrary, if Butera is a “specified employee” within the Executive).
6.2 The payments provided for in meaning of Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration 409A of the seven-day revocation period described in Code and the related guidance (“Section 6.6 without revocation 409A”) at the time of ▇▇▇▇▇▇’▇ separation from service, then only that portion of the Release severance and Waiver by benefits set forth in section 3(a) above, together with any other severance payments or benefits, that may be considered deferred compensation under Section 409A, which (when considered together) do not exceed the ExecutiveSection 409A Limit (as defined below) and which qualify as separation pay under Treasury Regulation Section 1.409A-1(b)(9)(iii), unless may be paid within the Company determines in good faith that such payments are required to be delayed for a period of first six (6) months following ▇▇▇▇▇▇’▇ separation from service in order accordance with section 3(a) above or (for payments or benefits not provided under this Agreement) with the payment schedule applicable to satisfy each such other payment or benefit. Otherwise, the requirements portion of Internal Revenue Code §409A(a)(2)(B)(i)the severance and benefits provided under this Agreement, together with any other severance payments or benefits that may be considered deferred compensation under Section 409A, that would otherwise be payable within the six (6) month period following ▇▇▇▇▇▇’▇ separation from service will accrue during such six (6) month period and will be paid in which case the Company shall so advise the Executive, and such payments shall be made a lump sum on the earlier of (i) date six (6) months after and one (1) day following the Date date of Termination ▇▇▇▇▇▇’▇ separation from service (or the next business day if such date is not a business day). All remaining severance payments and benefits will be payable in accordance with the payment schedule applicable to such payments or benefits. For purposes of this Agreement, “Section 409A Limit” means the lesser of two (2) times: (i) the sum of ▇▇▇▇▇▇’▇ annualized compensation based upon the annual rate of pay for services provided to the Company for the taxable year of Butera preceding the taxable year of ▇▇▇▇▇▇’▇ separation from service from the Company as determined under Treasury Regulation Section 1.409A-1(b)(9)(iii)(A)(1) and any related Internal Revenue Service guidance; or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following maximum amount that may be taken into account under a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made qualified plan pursuant to any long-term incentive plans, stock option or equity participation right plansSection 401(a)(17) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposedfor the year in which such separation from service occurs.
Appears in 1 contract
Sources: Severance and Change of Control Agreement (Kratos Defense & Security Solutions, Inc.)
Severance Payments. 6.1 If In consideration of the Executive’s employment is terminated following a Change agreements and ------------------ certifications set forth in Control and during the term Sections 1-3 of this Agreement, unless such termination is (i) by Agreement and the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition Employee's prior service to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed Companies, Erudite hereby promises to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum Employee the following severance paymentpayments:
(a) Within seven days after the Effective Time, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board Companies shall cause to be paid to the Executive Employee, a severance payment in the amount of $100,000.
(or, if b) Promptly after the Executive’s annual base salary is not presented final resolution of all claims for approval at the Compensation Committee level, then as otherwise established Damages made by J. ▇▇▇▇▇ or one against either of its Subsidiaries) with respect the Companies under Article VI of the ▇▇▇▇▇ Agreement, the Companies shall cause to be paid to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, Employee an additional severance payment equal to the sum Additional Amount (as defined below) plus interest thereon at a simple annual rate of 6% for the period from the Effective Time to the date such additional severance payment is made to the Employee. As used herein, the "Additional Amount" means the difference between (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or $50,000 minus (ii) the death product of (A) 0.2970 multiplied by (B) the actual dollar amount paid or payable by either of the Executive.
6.3 If Companies pursuant to Article VI of the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇▇ Agreement (after taking into account the provisions of Section 6.5 thereof and including any reduction in the principal amount of the Note issued by ▇▇▇▇▇ pursuant to the ▇▇▇▇▇ Agreement as a payment made by the Companies pursuant to such Article VI) provided that (x) the dollar amount reflected in clause (B) of this sentence shall immediately become vested in full. The Executive agrees not include (1) any amounts paid or payable by the Companies that result from the inability of ▇▇▇▇▇ to exercise collect any account receivable that it acquired pursuant to the portion ▇▇▇▇▇ Agreement if the Employee can demonstrate that the payor of such stock options for which vesting has been accelerated until account receivable became bankrupt or insolvent after the seven-day revocation period described in Section 6.6 has expired without revocation Effective Time and that none of the Release and Waiver Employee, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ had any knowledge at the Effective Time of any information that suggested that such account receivable might be uncollectible due to the payor's financial condition or (2) any amounts payable by the Executive, Companies that result from a liability to SSI of up to $40,000 and any such exercise before (y) the seven-day revocation period has expired without revocation dollar amount reflected in clause (B) of this sentence shall include only 50% of the Release and Waiver first $50,000 of any amounts paid or payable by either of the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made Companies pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination Article VI of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed▇▇▇▇▇ Agreement.
Appears in 1 contract
Sources: Employment Termination and Severance Agreement (Gse Systems Inc)
Severance Payments. 6.1 4.1 If the Executive’s employment is terminated following a Change Qualifying Termination shall occur, in Control addition to any payments and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by benefits to which the Executive without Good Reason, and provided that the seven-day revocation period described in is entitled under Section 6.6 has expired without revocation of the Release and Waiver by the Executive3 hereof, the Company shall pay the Executive the payments described in this Section 6.1 4.1 (the “Severance Payments”); provided, however, that, in the case of clauses (A), (B), (C), (D) and (F) below, the Executive shall have executed and not revoked a release of claims in addition the form set forth in Exhibit A hereto. The Executive shall also be entitled to the Severance Payments (and any payments and benefits described in Sections 5.1 and 5.2 hereof (but not under Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason 3) if the Executive’s employment is terminated prior to by the Company other than (x) for Cause or (y) by reason of death or Disability within the six (6) month period immediately preceding a Change in Control without Cause at and the direction Executive reasonably demonstrates that such termination is otherwise in connection with or in anticipation of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if that actually occurs during the Executive terminates his employment with Good Reason prior to term of the Agreement (a “Pre-Change in Control Termination”) ; provided, however, that, in the case of clauses (determined A), (B), (C), (D) and (F) below, Executive shall have executed and not revoked a release of claims in the form set forth in Exhibit A hereto; and provided further, however, that any such payments shall be offset by treating a Potential Change in Control as a Change in Control in applying the definition amount of Good Reason) if severance previously paid to the circumstance Executive under any employment agreement between the Executive and the Company and, to the extent permitted by Section 409A of the Code, any other severance policy, plan or event which constitutes Good Reason occurs at program of the direction of such PersonCompany.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times hundred and fifty percent (250%) of the sum of (i) the Executive’s annual base 129267/v2 2 salary as approved by the Compensation Committee of the Board then in effect (or immediately prior to be paid to the Executive (orany reduction resulting in a termination for Good Reason, if applicable) (the “Change in Control Salary”), plus (ii) the Executive’s target annual base salary is not presented incentive compensation for approval at the Compensation Committee levelyear of termination , then or if no target has been set as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect the Date of Termination, the target incentive compensation for the year immediately prior to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, For the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) thirty month period after immediately following the Date of Termination, the Company shall arrange to provide the Executive (which includes the Executive’s eligible dependents for purposes of this subsection (C)) with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits those which the Executive is was receiving immediately prior to the Notice Date of Termination (without giving effect or immediately prior to any reduction resulting in a termination for Good Reason, if applicable); provided, however, that (i) the Executive’s and his qualified dependents’ COBRA eligibility period shall include the period during which the Company is providing benefits under this subsection (C); (ii) unless the Executive consents to a different method (or elects COBRA coverage at applicable COBRA rates), such health insurance benefits shall be provided through a third-party insurer; and (iii) the Executive shall be responsible for the payment of premiums for such benefits subsequent to a Change in Control which reduction constitutes Good Reason)the same amount as active employees of the Company. Benefits otherwise receivable by the Executive pursuant to this Section 6.1(Csubsection (C) shall be reduced to the extent comparable benefits (including continued coverage for any preexisting medical condition of any person covered by the benefits provided to the Executive and his eligible dependents immediately prior to the Date of Termination) are actually received by or made available to the Executive without cost by a subsequent employer during the twenty-four (24) month period following the Executive’s termination Date of employment Termination (and any such benefits actually received by or made available to the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for . Notwithstanding the foregoing, in Section 6.1 the event of a Pre-Change in Control Termination, on the sixtieth (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th60th) day following the expiration of the seven-day revocation period described Change in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case Control the Company shall so advise pay or reimburse the Executive for any amounts or benefits it would have been responsible to pay or provide to the Executive under this Section 4.1(C) during the period prior to the Change in Control, had the Change in Control occurred on the Date of Termination.
(C) If the Executive would have become entitled to benefits under the Company’s post-retirement health care or life insurance plans (as in effect immediately prior to the Date of Termination (or immediately prior to any reduction resulting in a termination for Good Reason, if applicable)) had the Executive, and such payments shall be made on ’s employment terminated at any time during the earlier period of (i) six (6) thirty months after the Date of Termination Termination, the Company shall provide such post-retirement health care or life insurance benefits to the Executive (subject to any employee contributions required under the terms of such plans in the same amounts as active employees of the Company) commencing on the later of (i) the date that such coverage would have first become available or (ii) the death date that benefits described in subsection (C) of this Section 4.1 terminate.
(D) The Company shall pay the Executive.
6.3 If , at a daily salary rate calculated from the Executive’s employment is terminated following annual base salary in effect immediately prior to the Date of Termination (or immediately prior to any reduction resulting in a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, 129267/v2 3 if applicable), a lump sum amount equal to all outstanding stock options held by earned but unused paid time off days through the Date of Termination.
(E) The Company shall pay, no later than the last day of the calendar year in which they are incurred, the reasonable fees and expenses of a full service nationally recognized executive outplacement firm until the earlier of the date the Executive for secures new employment or the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for date which vesting has been accelerated until the sevenis twenty-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated four months following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change Date of Termination; provided that in Control without Cause at no event shall the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction aggregate amount of such Personpayments exceed $30,000.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Severance Payments. 6.1 If (a) Upon any termination of the Executive’s employment by the Company without Cause or by the Executive for Good Reason, the Company shall pay as severance to the Executive an amount (the “Cash Severance Amount”) equal to the greater of (i) the sum of two (2) months of the Executive’s Base Salary in effect immediately prior to the Date of Termination or (ii) the product of (x) one (1) month of the Executive’s Base Salary in effect immediately prior to the Date of Termination, multiplied by (y) the number of years that the Executive has been employed by the Company (such number, the “Employment Years”); provided that the aggregate Cash Severance Amount shall not exceed the sum of twelve (12) months of the Executive’s Base Salary in effect immediately prior to the Date of Termination. The Company shall pay the Cash Severance Amount over a number of months immediately following the Date of Termination equal to the Employment Years (the “Severance Period”), in equal installments as nearly as practicable, on the normal payroll dates for employees of the Company generally but in no event less frequently than monthly. Any amounts payable pursuant to this Section 6(a) shall not be paid until the first scheduled payment date following the date the release contemplated in Section 6(d) is terminated following a Change executed and no longer subject to revocation, with the first such payment being in Control and an amount equal to the total amount to which the Executive would otherwise have been entitled during the term period following the Date of this AgreementTermination if such deferral had not been required; provided, unless however, that any such amounts that constitute nonqualified deferred compensation within the meaning of Code Section 409A shall not be paid until the sixtieth (60th) day following such termination to the extent necessary to avoid adverse tax consequences under Code Section 409A, and, if such payments are required to be so deferred, the first payment shall be in an amount equal to the total amount to which the Executive would otherwise have been entitled during the period following the Date of Termination if such deferral had not been required; provided, further, that, if the Executive is a “specified employee” within the meaning of Code Section 409A, any amounts payable to the Executive under this Section 6(a) during the first six (6) months and one (1) day following the Date of Termination that constitute nonqualified deferred compensation within the meaning of Code Section 409A shall not be paid until the date that is six (6) months and one (1) day following such termination to the extent necessary to avoid adverse tax consequences under Code Section 409A, and, if such payments are required to be so deferred, the first payment shall be in an amount equal to the total amount to which the Executive would otherwise have been entitled to during the period following the Date of Termination if such deferral had not been required.
(b) In the event of any termination of the Executive’s employment (i) by the Company for Cause, or (ii) by reason of due to the Executive’s death or Disability or (iii) by Disability, the Executive without Good Reasonshall not be entitled to any severance or other payments or benefits as of the Date of Termination (except as required by applicable law) and all rights to receive a salary, and provided that benefits or other compensation shall termination as of the seven-day revocation period described Date of Termination except as set forth in Section 6.6 has expired without revocation 7.
(c) If the Executive breaches any provision of the Release and Waiver by the ExecutiveSections 8 through Error! Reference source not found. hereof, the Company shall pay no longer be obligated to make any payments or reimbursements or provide any benefits pursuant to this Section 6.
(d) The Company’s obligations under this Section 6 shall be contingent upon (i) the delivery by the Executive of a complete release in favor of the Company, its subsidiaries, affiliates, and respective officers, directors, employees, principals, managers, partners, members, attorneys and representatives, in substantially the form attached hereto as Annex A, within twenty-one (21) days after the Date of Termination and (ii) the Executive not revoking such release.
(e) In the event that the Company fails to pay any of the amounts set forth in Section 6(a) within five (5) business days after the date when due, the overdue amounts shall accrue interest at a rate equal to five (5%) per year until such overdue amounts and interest are paid. If the Executive dies during the postponement period prior to the payment in full of amounts set forth in Section 6(a), the unpaid amounts shall be paid to the personal representative of the Executive’s estate when due.
(f) The payments described provided in this Section 6.1 (the “Severance Payments”6(a) shall be in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for set forth in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive7 hereof.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Severance Payments. 6.1 If a. Except as provided in Section 5(b), upon the Executivetermination of Employee’s employment by the Company other than for Cause prior to a Change in Control, the Employee shall be entitled to an amount equal to the aggregate of one times: (i) the annual rate of base salary then being paid to the Employee, plus (ii) the average of the past three years short term bonus pay, plus (iii) the Company’s portion of 12 months’ premiums under any health, disability and life insurance plan or program in which the Employee was entitled to participate immediately prior to the Termination Date (the aggregated amount, the “Severance Pay”), which shall be paid to Employee by the Company over a period of 12 months from the Termination Date in accordance with the Company’s regular payroll cycle, commencing on the first regular payroll date of the Company that occurs more than 60 days after the Termination Date (and including any installment that would have otherwise been paid on regular payroll dates during the period of 60 days following the Termination Date), provided the conditions specified in Section 5(c) have been satisfied.
b. Notwithstanding Section 5(a) and subject to the limitation in Section 5(e), if (i) the Employee’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Employee for Good Reason if Reason, and (ii) the Executive’s employment is terminated prior to Termination Date occurs within 24 months immediately following a Change in Control Control, the Employee shall receive two times the Severance Pay calculated in accordance with Section 5(a), which shall be paid to Employee by the Company in a lump sum on the [later of] 60th day following the Termination Date [or the closing on the event constituting the Change in Control], provided the conditions specified in Section 5(c) have been satisfied.
c. Notwithstanding the foregoing provisions of Section 5(a) and (b), the Company will not be obligated to make any payments to or on behalf of Employee under Section 5(a) and (b), as applicable, unless (i) Employee signs a release of claims in favor of the Company in a form as prepared by the Company (the “Release”) and delivered to Employee no later than five business days after the Termination Date, (ii) all applicable consideration periods and rescission periods provided by law with respect to the Release have expired without Cause at Employee rescinding the direction of a Person who has entered into an agreement Release, and (iii) Employee is in strict compliance with the Company terms of this Agreement as of the consummation dates of which the payments. The cessation of these payments will constitute be in addition to, and not as an alternative to, any other remedies at law or in equity available to the Company, including without limitation the right to seek specific performance or an injunction,
d. If, when the Employee’s termination of employment occurs, the Employee is a Change in Control or specified employee within the meaning of section 409A of the Code, and if the Executive terminates his employment Severance Pay would be considered deferred compensation under section 409A of the Code, and finally if an exemption from the six-month delay requirement of section 409A(a)(2)(B)(i) of the Code is not available, the Employee’s Severance Pay payments for the first six months following separation from service shall be paid to the Employee in a single lump sum on the first day of the seventh month after the month in which the Employee’s separation from service occurs.
e. In the event that the vesting, acceleration and payment of any equity awards or other compensation or benefits, together with Good Reason prior all other payments and the value of any benefit received or to be received by the Employee under this Agreement would result in all or a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction portion of such Person.
(Apayment being subject to excise tax under Section 4999 of the Code, then the amounts due under Section 5(b) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, that the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to Employee shall be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of either (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination full payment or (ii) such lesser amount determined by the death Company in accordance with this Section 5(e) that would result in no portion of the Executive.
6.3 If payment being subject to excise tax under Section 4999 of the Executive’s Code (the “Excise Tax”), whichever of the foregoing amounts, taking into account the applicable Federal, state, and local employment is terminated taxes, income taxes, and the Excise Tax, results in the receipt by the Employee, on an after-tax basis, of the greatest amount of the payment notwithstanding that all or some portion of the payment may be taxable under Section 4999 of the Code. In the event the amounts due under Section are reduced, the amounts shall be reduced in the following order of priority: first, with respect to any amount that does not constitute the “deferral of compensation” under Section 409A of the Code and regulations promulgated thereunder, disregard the acceleration in the time of payment and then disregard the acceleration of vesting as a result of a Change in Control and during second, with respect to any amount that constitutes the term “deferral of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in compensation” under Section 6.6 has expired without revocation 409A of the Release Code and Waiver by regulations promulgated thereunder, disregard the Executive, acceleration in the time of payment and any such exercise before then disregard the seven-day revocation period has expired without revocation acceleration of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following vesting as a result of a Change in Control first with respect to Company funded amounts and then the Employee’s deferrals, in each case only to the extent necessary to satisfy (ii) above. All determinations required to be made under this Section 5(e) shall be made by a nationally recognized accounting firm that is the Company without Cause or by the Executive with Good Reason if the ExecutiveCompany’s employment is terminated outside auditor immediately prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with event triggering the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is payments that are subject to the Excise Tax (the “Accounting Firm”). The Company shall cause the Accounting Firm to provide detailed supporting calculations of its determinations to the Company and Employee. Notice must be given to the Accounting Firm within 15 business days after an event entitling Employee to an amount due under this Agreement. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The Accounting Firm’s determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). For the purposes of all calculations under Section 280G of the Code and the application of this Section 5.1, all determination as hereinafter definedto present value shall use 120 percent of the applicable Federal rate (determined under Section 1274(d) of the Code) compounded based on the nature of the payment, as in effect on the Date of Termination, but if not otherwise specified, compounded on a semiannual basis. The determination by the Accounting Firm shall be final and binding on the Company and the Employee.
f. If Employee’s employment with the Company is terminated by the Company for Cause or for any reason not covered by Section 5(a) or 5(b), then the Company shall pay to Employee only his base salary and any accrued but unused vacation or PTO earned through the Executive additional amounts Termination Date.
g. In addition to the benefits otherwise provided in Section 5, the Employee shall be entitled to the following benefits and payments upon the Employee’s termination of employment: (i) the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net payment of the Excise Tax shall equal Employee’s base salary and any other form or type of compensation earned, vested and payable through the total amount Date of Termination; (ii) the right to receive all Change in Control Payments benefits to which the Executive would have been entitled if Employee is vested on the Excise Tax had not been imposed. For purposes Date of this Section 6.4, Termination in accordance with the term “Excise Tax” shall mean terms under the tax imposed by Section 4999 Company pension and welfare benefit plans or any successor of the Code such plan and any similar tax that may hereafter be imposedother plan or agreement relating to retirement benefits; and (iii) the right to exercise and to receive all rights in which the Employee is vested on the Date of Termination, in accordance with the terms of all awards under any Company stock purchase and stock incentive plans or programs, or any successor to any such plans or programs.
Appears in 1 contract
Sources: Executive Severance Agreement (Alerus Financial Corp)
Severance Payments. 6.1 If the Executive’s employment is terminated following a Change in Control (a) From and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company after the consummation of which will constitute a Change in of Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments and subject to the Executive for periods subsequent to the Date other provisions of Termination and in lieu of any severance benefit otherwise payable to the Executivethis Section 1, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, Employee an amount equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive Employee’s then-current base salary for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the one year (or any portion thereofthe “Severance Payment”) in which if (X) the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated Employee is employed by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice consummation of Termination (without giving effect to any reduction in such benefits subsequent to a Change in of Control which reduction constitutes Good Reason). Benefits otherwise receivable and (Y) (i) upon consummation of such Change of Control the Employee is not hired by the Executive pursuant to this Section 6.1(C) shall be reduced Buyer or retained by the Company on substantially similar terms of employment as those enjoyed by the Employee immediately prior to the extent comparable benefits are actually received by consummation of such Change of Control, (ii) the Employee’s employment with the Company or made available the Buyer, as applicable, is terminated without Cause (as defined below) at any time prior to the Executive without cost during first anniversary of the twenty-four consummation of such Change of Control, or (24iii) month period following the Executive’s termination of Employee resigns with Good Reason (as defined below) from employment (and with the Company or the Buyer, as applicable, at any such benefits actually received by the Executive shall be reported time prior to the Company by first anniversary of the Executive).
6.2 consummation of such Change of Control. The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof Severance Payment shall be made not later than in one lump sum upon the fifth (5th) day following the expiration effective date of the seven-day revocation period described in termination of such Employee’s employment with the Company or the Buyer, as the case may be.
(b) Notwithstanding anything else to the contrary herein, if upon termination, the Employee is a “specified employee” (within the meaning attributed thereto by Section 6.6 without revocation 409A of the Release Code and Waiver by the Executiveregulations thereunder) of Company, unless and if the Company determines in good faith that payments would be subject to excise tax under Code Section 409A because such payments are required to be delayed for a made within the 6-month period commencing upon the Employee’s effective date of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i)termination, in which case the Company shall so advise the Executive, and then such payments shall be made on the earlier of (i) six (6) delayed for 6 months after the Date of Termination or (ii) the death of the Executivefollowing such termination.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Sources: Change of Control Agreement (Molecular Insight Pharmaceuticals, Inc.)
Severance Payments. 6.1 If In the event of any termination of the Executive’s employment is terminated following a Change pursuant to Sections 4(a)(v) (and, for the avoidance of doubt, for reasons that would not constitute Cause pursuant to Sections 4(a)(i)-(iv)), 4(b), or 4(c) above, the Company will pay the Executive or otherwise provide, in Control and during the term of this Agreement, unless such termination is addition to Final Compensation:
(i) the Base Salary for a period of two (2) years following the date of termination (the “Severance Payments,” and such period, the “Severance Period”);
(ii) one (1) times the Target Bonus, pro-rated for the number of days during the year in which the Executive’s employment terminates that the Executive was employed by the Company for Cause, (ii) by reason of death or Disability or based upon a 365 day year);
(iii) by the number of shares of Stock subject to the Options, unless earlier terminated or forfeited (other than in connection with such termination of employment) in accordance with the Award or the applicable equity incentive plan and to the extent not otherwise vested, that would have vested during the twelve (12)-month period following the Executive’s termination date had the Executive without Good Reason, and provided that remained in continuous employment with the seven-day revocation Company during such period described in Section 6.6 has expired without revocation will become vested as of the Release Executive’s termination date, with the number of shares of Stock subject to the Options that are then eligible to vest equal to the Available Vesting Amount (as defined in Schedule A to the Award) immediately prior to such termination of employment;
(iv) with respect to each Equity Award other than the Options, the number of shares of Stock subject to such Equity Award, unless earlier terminated or forfeited (other than in connection with such termination of employment) in accordance with the applicable individual award agreement and Waiver by equity incentive plan governing such Equity Award and to the extent not otherwise vested, that would have vested during the twelve (12)-month period following the Executive’s termination date had the Executive remained in continuous employment with the Company during such period will become vested as of the Executive’s termination date, with the number of shares of Stock subject to the Equity Award that are then eligible to vest equal to the total number of shares of Stock subject to the Equity Award that have vested or are available to vest under the terms of such Equity Award immediately prior to such termination of employment; and
(v) in the event the Executive timely elects to continue the Executive’s coverage and, if applicable, that of the Executive’s eligible dependents in the Company’s group health plans under the federal law known as “COBRA” or similar state law (together, “COBRA”), the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, monthly amount equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and monthly COBRA health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are premiums required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and maintain such payments shall be made on coverages until the earlier of (i) six (6) months after the Date of Termination or (iiA) the death conclusion of the Executive.
6.3 If Severance Period and (B) the date that the Executive and, if applicable, the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless eligible dependents cease to be eligible for such termination is (i) by the Company for Cause, (ii) by reason of death COBRA coverage under applicable law or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts plan terms (the “Gross Up AmountsHealth Continuation Benefits”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed).
Appears in 1 contract
Sources: Employment Agreement (Cerevel Therapeutics Holdings, Inc.)
Severance Payments. 6.1 (a) If the Executive’s 's employment is terminated following a Change for any reason including death, the Executive or spouse of the Executive shall be entitled to receive the greater of:
(i) the total of:
(A) 24 months' salary at the then applicable base salary rate;
(B) the present value, as determined by the Board, acting reasonably, of the benefits described in Control and section 4(b) that would be enjoyed by the Executive during the consecutive 24 months assuming his employment was not terminated and assuming the then current level of benefits were continued for those 24 months;
(C) the present value, as determined by the Board, acting reasonably, of the amounts that would have been paid by the Corporation or reimbursed to the Executive pursuant to section 8 during the consecutive 24 months assuming that his employment had not been termination; and
(ii) the salary otherwise payable to the Executive for the unexpired term of this Agreementagreement together with the other amounts described in clause 11 (b)(i), unless such termination is (i) by the Company for Causemutatis mutandis, (ii) by reason of death or Disability or (iii) by provided that in no case will the Executive without Good Reason, and provided that receive less than the seven-day revocation period amount to which he is entitled under the Employment Standards Act (Ontario). The payment described in Section 6.6 has expired without revocation this subsection 11(b) is the only severance payment the Executive will receive in the event of the Release and Waiver by termination of this agreement for reasons contemplated in this subsection 11(b).
(b) The Executive's employment is terminated as a result of the permanent disability or death of the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment or his estate, as applicable, shall be deemed entitled to have been terminated following a Change in Control by receive, within 30 days of the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction date of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executivetermination, the Company shall pay to balance of the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to that would otherwise be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination remainder of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in fullagreement. The Executive agrees not to exercise reasonably comply with all requirements necessary for the portion Corporation to obtain life insurance for the term of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Personthis agreement.
(ic) If any payment or benefit made available to For the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this section 11, whenever a payment is to be determined with reference to the remaining term of this agreement, if less than six months remain in the term of this agreement and no party has given notice of its intention not to renew this agreement as contemplated by Section 6.41, the "remaining term “Excise Tax” of this agreement" shall mean include the tax imposed by Section 4999 remainder of the Code and any similar tax that may hereafter be imposedthen existing term of this agreement plus the renewal period.
Appears in 1 contract
Severance Payments. 6.1 If a. Except as provided in Section 5(b), upon the Executivetermination of Employee’s employment by the Company other than for Cause prior to a Change in Control, the Employee shall be entitled to an amount equal to the aggregate of one times: (i) the annual rate of base salary then being paid to the Employee, plus (ii) the average of the past three years short term bonus pay, plus (iii) the Company’s portion of 12 months’ premiums under any health, disability and life insurance plan or program in which the Employee was entitled to participate immediately prior to the Termination Date (the aggregated amount, the “Severance Pay”), which shall be paid to Employee by the Company over a period of 12 months from the Termination Date in accordance with the Company’s regular payroll cycle, commencing on the first regular payroll date of the Company that occurs more than 60 days after the Termination Date (and including any installment that would have otherwise been paid on regular payroll dates during the period of 60 days following the Termination Date), provided the conditions specified in Section 5(c) have been satisfied.
b. Notwithstanding Section 5(a) and subject to the limitation in Section 5(e), if (i) the Employee’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Employee for Good Reason if Reason, and (ii) the Executive’s employment is terminated prior to Termination Date occurs within 24 months immediately following a Change in Control Control, the Employee shall receive two times the Severance Pay calculated in accordance with Section 5(a), which shall be paid to Employee by the Company in a lump sum on the [later of] 60th day following the Termination Date [or the closing on the event constituting the Change in Control], provided the conditions specified in Section 5(c) have been satisfied.
c. Notwithstanding the foregoing provisions of Section 5(a) and (b), the Company will not be obligated to make any payments to or on behalf of Employee under Section 5(a) and (b), as applicable, unless (i) Employee signs a release of claims in favor of the Company in a form as prepared by the Company (the “Release”) and delivered to Employee no later than five business days after the Termination Date, (ii) all applicable consideration periods and rescission periods provided by law with respect to the Release have expired without Cause at Employee rescinding the direction of a Person who has entered into an agreement Release, and (iii) Employee is in strict compliance with the Company terms of this Agreement as of the consummation dates of which the payments. The cessation of these payments will constitute be in addition to, and not as an alternative to, any other remedies at law or in equity available to the Company, including without limitation the right to seek specific performance or an injunction.
d. If, when the Employee’s termination of employment occurs, the Employee is a Change in Control or specified employee within the meaning of section 409A of the Code, and if the Executive terminates his employment Severance Pay would be considered deferred compensation under section 409A of the Code, and finally if an exemption from the six-month delay requirement of section 409A(a)(2)(B)(i) of the Code is not available, the Employee’s Severance Pay payments for the first six months following separation from service shall be paid to the Employee in a single lump sum on the first day of the seventh month after the month in which the Employee’s separation from service occurs.
e. In the event that the vesting, acceleration and payment of any equity awards or other compensation or benefits, together with Good Reason prior all other payments and the value of any benefit received or to be received by the Employee under this Agreement would result in all or a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction portion of such Person.
(Apayment being subject to excise tax under Section 4999 of the Code, then the amounts due under Section 5(b) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, that the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to Employee shall be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of either (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination full payment or (ii) such lesser amount determined by the death Company in accordance with this Section 5(e) that would result in no portion of the Executive.
6.3 If payment being subject to excise tax under Section 4999 of the Executive’s Code (the “Excise Tax”), whichever of the foregoing amounts, taking into account the applicable Federal, state, and local employment is terminated taxes, income taxes, and the Excise Tax, results in the receipt by the Employee, on an after-tax basis, of the greatest amount of the payment notwithstanding that all or some portion of the payment may be taxable under Section 4999 of the Code. In the event the amounts due under Section are reduced, the amounts shall be reduced in the following order of priority: first, with respect to any amount that does not constitute the “deferral of compensation” under Section 409A of the Code and regulations promulgated thereunder, disregard the acceleration in the time of payment and then disregard the acceleration of vesting as a result of a Change in Control and during second, with respect to any amount that constitutes the term “deferral of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in compensation” under Section 6.6 has expired without revocation 409A of the Release Code and Waiver by regulations promulgated thereunder, disregard the Executive, acceleration in the time of payment and any such exercise before then disregard the seven-day revocation period has expired without revocation acceleration of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following vesting as a result of a Change in Control first with respect to Company funded amounts and then the Employee’s deferrals, in each case only to the extent necessary to satisfy (ii) above. All determinations required to be made under this Section 5(e) shall be made by a nationally recognized accounting firm that is the Company without Cause or by the Executive with Good Reason if the ExecutiveCompany’s employment is terminated outside auditor immediately prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with event triggering the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is payments that are subject to the Excise Tax (the “Accounting Firm”). The Company shall cause the Accounting Firm to provide detailed supporting calculations of its determinations to the Company and Employee. Notice must be given to the Accounting Firm within 15 business days after an event entitling Employee to an amount due under this Agreement. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The Accounting Firm’s determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). For the purposes of all calculations under Section 280G of the Code and the application of this Section 5.1, all determination as hereinafter definedto present value shall use 120 percent of the applicable Federal rate (determined under Section 1274(d) of the Code) compounded based on the nature of the payment, as in effect on the Date of Termination, but if not otherwise specified, compounded on a semiannual basis. The determination by the Accounting Firm shall be final and binding on the Company and the Employee.
f. If Employee’s employment with the Company is terminated by the Company for Cause or for any reason not covered by Section 5(a) or 5(b), then the Company shall pay to Employee only his base salary and any accrued but unused vacation or FTO earned through the Executive additional amounts Termination Date.
g. In addition to the benefits otherwise provided in Section 5, the Employee shall be entitled to the following benefits and payments upon the Employee’s termination of employment: (i) the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net payment of the Excise Tax shall equal Employee’s base salary and any other form or type of compensation earned, vested and payable through the total amount Date of Termination; (ii) the right to receive all Change in Control Payments benefits to which the Executive would have been entitled if Employee is vested on the Excise Tax had not been imposed. For purposes Date of this Section 6.4, Termination in accordance with the term “Excise Tax” shall mean terms under the tax imposed by Section 4999 Company pension and welfare benefit plans or any successor of the Code such plan and any similar tax that may hereafter be imposedother plan or agreement relating to retirement benefits; and (iii) the right to exercise and to receive all rights in which the Employee is vested on the Date of Termination, in accordance with the terms of all awards under any Company stock purchase and stock incentive plans or programs, or any successor to any such plans or programs.
Appears in 1 contract
Sources: Executive Severance Agreement (Alerus Financial Corp)
Severance Payments. 6.1 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i1) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason At any time prior to a Change in Control (determined by treating a Potential Change as defined below), in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
that (A) In lieu of Executive's employment hereunder is terminated by the Company at any further time for any reason except (i) for Cause (as defined below) or (ii) due to Executive's death or Disability (as defined below), or (B) Executive terminates his own employment hereunder for Good Reason (as defined below), then, in either such event, Executive shall be entitled to receive, and the Company shall be obligated to pay, Executive's base salary payments under Section 3(a) (without regard to any bonuses or extraordinary compensation) then being paid to him on the Termination Date as salary continuation (pursuant to the Executive Company's normal payroll procedures) for periods subsequent a period equal to six (6) consecutive months following the Date Termination Date. In the event of Termination and in lieu of any severance benefit otherwise payable to the Executive's death during such salary continuation period, the Company shall pay the sum of the present value of all remaining payments (using a 5% discount rate) in a single payment to Executive's surviving spouse, if any, or if there is no surviving spouse, to Executive's estate within 60 days of his death. Such severance payments shall be subject to Sections 10 and 11 hereof. Prior to a Change in Control, in the event that Executive's employment is terminated through notice of non-renewal as of the end of the Initial Term of Employment (pursuant to Section 4) or any one-year Renewal Term, Executive shall be entitled to receive, and the Company shall be obligated to pay, Executive's base salary under Section 3(a) (without regard to any bonuses or extraordinary compensation) then being paid to him on the Termination Date as salary continuation (pursuant to the Company's normal payroll procedures) for each month following his Termination Date, not to exceed six months, that Executive is (A) not in violation of the confidential information, non-competition and other covenants of Sections 10 and 11 hereof and (B) not employed by another employer, as determined by the Company.
(2) At any time after a lump sum severance paymentChange in Control (as defined below), in cashthe event that (A) Executive's employment hereunder is terminated by the Company at any time for any reason except (i) for Cause (as defined below) or (ii) due to Executive's death or Disability (as defined below), or (B) Executive terminates his own employment hereunder for Good Reason (as defined below in this Section 6(c)), then, in either such event, Executive shall be entitled to receive, and the Company shall be obligated to pay, Executive's base salary under Section 3(a) (without regard to any bonuses or extraordinary compensation except as provided below in this paragraph) then being paid to him on the Termination Date as salary continuation (pursuant to the Company's normal payroll procedures) for a period equal to two times twelve (12) consecutive months following the Termination Date, plus an additional single sum payment equal to one-half of Executive’s annual base salary as approved by 's target bonus (pursuant to Section 3(b)) for the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year Bonus Year in which the Date termination occurred, which bonus shall be payable within 30 days from the Termination Date. In the event of Termination occurs.
(B) Notwithstanding any provision of any Bonus PlanExecutive's death during such salary continuation period, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of the present value of all remaining payments in a single payment (iusing a 5% discount rate) any incentive compensation which has been allocated to Executive's surviving spouse, if any, or awarded if there is no surviving spouse, to Executive's estate within 60 days of his death. After a Change in Control, in the Executive for a completed year or other measuring period preceding event that the Date Company terminates Executive's employment through notice of Termination under any such Bonus Plan but has not yet been paid nonrenewal as of the end of the Initial Term of Employment (pursuant to Section 5.2 hereof 4) or otherwise)any one-year Renewal Term, Executive shall be entitled to receive, and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange be obligated to provide pay, Executive's base salary under Section 3(a) (without regard to any bonuses or extraordinary compensation) then being paid to him on the Executive with life, disability, accident and health insurance benefits substantially similar Termination Date as salary continuation (pursuant to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(CCompany's normal payroll procedures) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) consecutive months following the Termination Date.
(3) Except as otherwise specifically provided in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(ithis Section 6(b), in which case the Company shall so advise the Executive, and such severance payments shall be made on in addition to, and shall not reduce or offset, any other payments that are due to Executive from the earlier Company (or any other source) or under any other agreements, except that severance payments hereunder shall offset any severance benefits otherwise due to Executive under any severance pay plan or program maintained by the Company that covers its employees generally. The provisions of (ithis Section 6(b) six (6) months after the Date shall supersede any conflicting provisions of Termination this Agreement but shall not be construed to curtail, offset or (ii) the death of the limit Executive.
6.3 If the Executive’s employment is terminated following 's rights to any other payments, whether contingent upon a Change in Control and during the term (as defined below) or otherwise, under this Agreement or any other agreement, contract, plan or other source of this Agreement, unless such termination is payment.
(i4) by A "CHANGE IN CONTROL" of the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have occurred if any of the following shall have taken place: (A) any "person" (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act")) other than Gordon Cain and his Affiliates (defined below), tak▇▇ ▇▇▇▇▇▇▇▇, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act, or any successor provisions thereto), directly or indirectly, of securities of the Company representing thirty-five percent (35%) or more of the combined voting power of the Company's then-outstanding voting securities; (B) the approval by the stockholders of the Company of a reorganization, merger, or consolidation, in each case with respect to which persons who were stockholders of the Company immediately prior to such reorganization, merger, or consolidation do not, immediately thereafter, own or control more than fifty percent (50%) of the combined voting power entitled to vote generally in the election of directors of the reorganized, merged or consolidated Company's then outstanding securities in substantially the same proportion as their ownership of the Company's outstanding voting securities prior to such reorganization, merger or consolidation; (C) a liquidation or dissolution of the Company or the sale of all or substantially all of the Company's assets; (D) in the event any person is elected by the stockholders of the Company to the Board who has not been terminated nominated for election by a majority of the Board or any duly appointed committee thereof; or (E) following the election or removal of directors, a majority of the Board consists of individuals who were not members of the Board two (2) years before such election or removal, unless the election of each director who is not a director at the beginning of such two-year period has been approved in advance by directors representing at least a majority of the directors then in office who were directors at the beginning of the two-year period. The Board, in its discretion, may deem any other corporate event affecting the Company to be a "Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such PersonControl" hereunder.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Severance Payments. 6.1 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i1) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason At any time prior to a Change in Control (determined by treating a Potential Change as defined below), in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
that (A) In lieu of Executive's employment hereunder is terminated by the Company at any further time for any reason except (i) for Cause (as defined below) or (ii) due to Executive's death or Disability (as defined below), or (B) Executive terminates his own employment hereunder for Good Reason (as defined below), then, in either such event, Executive shall be entitled to receive, and the Company shall be obligated to pay, Executive's base salary payments under Section 3(a) (without regard to any bonuses or extraordinary compensation) then being paid to him on the Termination Date as salary continuation (pursuant to the Executive Company's normal payroll procedures) for periods subsequent a period equal to six (6) consecutive months following the Date Termination Date. In the event of Termination and in lieu of any severance benefit otherwise payable to the Executive's death during such salary continuation period, the Company shall pay the sum of the present value of all remaining payments (using a 5% discount rate) in a single payment to Executive's surviving spouse, if any, or if there is no surviving spouse, to Executive's estate within 60 days of his death. Such severance payments shall be subject to Sections 10 and 11 hereof. Prior to a Change in Control, in the event that Executive's employment is terminated through notice of non-renewal as of the end of the Initial Term of Employment (pursuant to Section 4) or any one-year Renewal Term, Executive shall be entitled to receive, and the Company shall be obligated to pay, Executive's base salary under Section 3(a) (without regard to any bonuses or extraordinary compensation) then being paid to him on the Termination Date as salary continuation (pursuant to the Company's normal payroll procedures) for each month following his Termination Date, not to exceed six months, that Executive is (A) not in violation of the confidential information, non-competition and other covenants of Sections 10 and 11 hereof and (B) not employed by another employer, as determined by the Company.
(2) At any time after a lump sum severance paymentChange in Control (as defined below), in cashthe event that (A) Executive's employment hereunder is terminated by the Company at any time for any reason except (i) for Cause (as defined below) or (ii) due to Executive's death or Disability (as defined below), or (B) Executive terminates his own employment hereunder for Good Reason (as defined below in this Section 6(c)), then, in either such event, Executive shall be entitled to receive, and the Company shall be obligated to pay, Executive's base salary under Section 3(a) (without regard to any bonuses or extraordinary compensation except as provided below in this paragraph) then being paid to him on the Termination Date as salary continuation (pursuant to the Company's normal payroll procedures) for a period equal to two times twelve (12) consecutive months following the Termination Date, plus an additional single sum payment equal to one-half of Executive’s annual base salary as approved by 's target bonus (pursuant to Section 3(b)) for the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year Bonus Year in which the Date termination occurred, which bonus shall be payable within 30 days from the Termination Date. In the event of Termination occurs.
(B) Notwithstanding any provision of any Bonus PlanExecutive's death during such salary continuation period, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of the present value of all remaining payments in a single payment (iusing a 5% discount rate) any incentive compensation which has been allocated to Executive's surviving spouse, if any, or awarded if there is no surviving spouse, to Executive's estate within 60 days of his death.
After a Change in Control, in the Executive for a completed year or other measuring period preceding event that the Date Company terminates Executive's employment through notice of Termination under any such Bonus Plan but has not yet been paid nonrenewal as of the end of the Initial Term of Employment (pursuant to Section 5.2 hereof 4) or otherwise)any one-year Renewal Term, Executive shall be entitled to receive, and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange be obligated to provide pay, Executive's base salary under Section 3(a) (without regard to any bonuses or extraordinary compensation) then being paid to him on the Executive with life, disability, accident and health insurance benefits substantially similar Termination Date as salary continuation (pursuant to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(CCompany's normal payroll procedures) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) consecutive months following the Termination Date.
(3) Except as otherwise specifically provided in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(ithis Section 6(b), in which case the Company shall so advise the Executive, and such severance payments shall be made on in addition to, and shall not reduce or offset, any other payments that are due to Executive from the earlier Company (or any other source) or under any other agreements, except that severance payments hereunder shall offset any severance benefits otherwise due to Executive under any severance pay plan or program maintained by the Company that covers its employees generally. The provisions of (ithis Section 6(b) six (6) months after the Date shall supersede any conflicting provisions of Termination this Agreement but shall not be construed to curtail, offset or (ii) the death of the limit Executive.
6.3 If the Executive’s employment is terminated following 's rights to any other payments, whether contingent upon a Change in Control and during the term (as defined below) or otherwise, under this Agreement or any other agreement, contract, plan or other source of this Agreement, unless such termination is payment.
(i4) by A "CHANGE IN CONTROL" of the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have occurred if any of the following shall have taken place: (A) any "person" (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act")) other than Gord▇▇ ▇▇▇▇ ▇▇▇ his Affiliates (defined below), taken together, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act, or any successor provisions thereto), directly or indirectly, of securities of the Company representing thirty-five percent (35%) or more of the combined voting power of the Company's then-outstanding voting securities; (B) the approval by the stockholders of the Company of a reorganization, merger, or consolidation, in each case with respect to which persons who were stockholders of the Company immediately prior to such reorganization, merger, or consolidation do not, immediately thereafter, own or control more than fifty percent (50%) of the combined voting power entitled to vote generally in the election of directors of the reorganized, merged or consolidated Company's then outstanding securities in substantially the same proportion as their ownership of the Company's outstanding voting securities prior to such reorganization, merger or consolidation; (C) a liquidation or dissolution of the Company or the sale of all or substantially all of the Company's assets; (D) in the event any person is elected by the stockholders of the Company to the Board who has not been terminated nominated for election by a majority of the Board or any duly appointed committee thereof; or (E) following the election or removal of directors, a majority of the Board consists of individuals who were not members of the Board two (2) years before such election or removal, unless the election of each director who is not a director at the beginning of such two-year period has been approved in advance by directors representing at least a majority of the directors then in office who were directors at the beginning of the two-year period. The Board, in its discretion, may deem any other corporate event affecting the Company to be a "Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such PersonControl" hereunder.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Severance Payments. 6.1 (1) If the Executive’s employment this Agreement is terminated following by Company, other than as a Change in Control and during the term result of this Agreement, unless such termination is (i) by the Company death or Permanent Disability of Employee or for Cause, (ii) by reason of death "Termination Without Cause"), or Disability or (iii) by the Executive without Employee terminates this Agreement for Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to Employee, in accordance with this Section 7.4(b), a severance and non-competition payment in an amount equal to (A) the Executive a sum of the Accrued Obligations (as defined below), plus (B) the product of (x) the sum of the lump sum severance payment, Employee's Base Salary and the Bonus Compensation earned by Employee in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee respect of the Board last year immediately preceding the year of termination, multiplied by (y) one and one-half (1.5). Such severance and non-competition payment (other than with respect to the Accrued Obligations, which shall be paid at such time such Accrued Obligations would otherwise be required to be paid to Employee) shall be payable in eighteen (18) equal monthly installments; provided that any such payments of the Executive (orSeverance Payments shall not commence until the first payroll date following the date the General Release is executed and no longer subject to revocation, if with the Executive’s annual base salary is not presented for approval at first such payment being in an amount equal to the Compensation Committee level, then as total amount to which Employee would otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) have been entitled with respect to such Severance Payments during the period following the date of termination if such deferral had not been required. Notwithstanding anything to the contrary herein, (x) Employee shall not be entitled to receive any payments pursuant to this Section 7.4(b(1) (except for the Accrued Obligations) (the "Severance Payments"), and Employee shall forfeit all rights to such payments, unless Employee has executed and delivered to Company a general release in form attached hereto as Exhibit A (the "General Release"), and such General Release remains in full force and effect, has not been revoked and is no longer subject to revocation, within 60 days of the date of termination of Employee's employment and (y) Employee shall be entitled to receive such Severance Payments pursuant to this Section 7.4(b)(1) only so long as Employee has not breached any of the provisions of the General Release or Section 8 or Section 9 hereof. The term "Accrued Obligations" means the sum of (i) Base Salary that is accrued but unpaid as of the date on which the termination of employment becomes effective; (ii) any unpaid Bonus Compensation for any fiscal year which has ended prior to the year in which the Date date of Termination such termination occurs.
, (B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (iiii) any incentive compensation which has been allocated or awarded to the Executive accrued vacation pay for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but vacation that has not yet been paid taken as of the date on which the termination of employment becomes effective, (pursuant to Section 5.2 hereof iv) any other amounts due Employee under any benefit plan or otherwise)in accordance with applicable law as of the date on which the termination of employment becomes effective, and (iiv) a pro rata portion to the Date of Termination of Pro Rata Bonus Amount for the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the fiscal year (or any portion thereof) in which the Date date of Termination termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Sources: Employment Agreement (NPC Restaurant Holdings, LLC)
Severance Payments. 6.1 If the Executive’s employment is terminated following Following a Change in Control and of the Company, if, ------------------ during the term of this Agreementthirty-six (36) months following such Change in Control, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been is terminated following a Change in Control by the Company without Cause or by the (ii) Executive with Good Reason if the Executive’s terminates employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control (or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of its successor or assigns) for Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to and provide Executive each of the following:
(a) Within five (5) business days after the effective date of any such termination of employment (the "Effective Date"), the Company (or its successor or assigns) will pay Executive a lump sum severance payment, in cash, cash payment equal to two one (1) times the average annual compensation that was includible in Executive’s annual base salary as approved 's gross income during each of the lesser of (i) the five (5) full fiscal years immediately prior to the Effective Date and (ii) the number of years Executive was employed by the Compensation Committee of the Board to be paid Company immediately prior to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occursEffective Date.
(Bb) Notwithstanding Executive and her dependents shall continue to be covered for twelve (12) months after the Effective Date by all survivor rights, insurance and benefit programs of the Company (or its successor or assigns) in type and amount at least equivalent to that provided to she and her dependents by the Company immediately prior to the Change of Control; provided that if participation in any provision one or more of any Bonus Plansuch arrangements is not possible under the terms thereof, the Company (or its successor or assigns) will provide substantially identical benefits outside of the programs. The cost of this coverage will be paid by the Company (or its successor or assigns).
(c) If all or any portion of the amounts payable to Executive under this Agreement, either alone or together with other payments which Executive has the right to receive from the Company, constitute "excess parachute payments" (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), that are subject to the excise tax imposed by Section 4999 of the Code (or similar tax and/or assessment), the Company (or its successor or assigns) shall increase the amounts payable pursuant to Section 6(a) above to the extent necessary to place Executive in the same after-tax position as she would have been in had no such excise tax been imposed on the payments hereunder. The determination of the amount of any such excise taxes shall initially be made by the independent accounting firm employed by the Company immediately prior to the Change in Control. If, at a later date, it is determined that the amount of excise taxes payable by Executive is greater than the amount initially so determined, then the Company (or its successor or assigns) shall pay to the Executive a lump sum amount, in cash, an amount equal to the sum of (i) such additional excise taxes, (ii) any incentive compensation which has been allocated interest, fines and penalties resulting from such underpayment, plus (iii) an amount necessary to reimburse Executive for any income, excise or awarded other taxes payable by Executive with respect to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid amount specified in (pursuant to Section 5.2 hereof or otherwise), i) and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occursabove, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator reimbursement provided by this (iii). Upon the occurrence of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by of the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost Company, if, during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months following such Change in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i)Control, in which case Executive terminates employment with the Company shall so advise the Executive, and such payments shall be made on the earlier of (ior its successor or assigns) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by then within five (5) business days after the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined)Effective Date, the Company shall pay to the Executive additional amounts an amount equal to thirty percent (the “Gross Up Amounts”30%) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change described in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed6(a) above.
Appears in 1 contract
Sources: Executive Employment Agreement (Amserv Healthcare Inc)
Severance Payments. 6.1 If The Employer shall pay the ExecutiveEmployee the payments described in this Section 10.1 (the “Severance Payments”) upon the termination of the Employee’s employment is terminated following a Change in Control and during prior to the term end of this Agreementthe Change-in-Control Protective Period, in addition to any payments and benefits to which the Employee is entitled under Sections 5, 6, 7 and 8.1 hereof, unless such termination is (i) by the Company Employer for Cause, (ii) by reason of death or Disability Disability, or (iii) by the Executive Employee without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation . For purposes of the Release and Waiver by the Executivethis Agreement, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The ExecutiveEmployee’s employment shall be deemed to have been terminated by the Employer without Cause following a Change in Control by the Company without Cause or by the Executive Employee with Good Reason following a Change in Control, as the case may be, if (I) the ExecutiveEmployee’s employment is terminated without Cause prior to a Change in Control without Cause and such termination was at the request or direction of a Person who has entered into an agreement with the Company Employer the consummation of which will would constitute a Change in Control or if Control, (II) the Executive Employee terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if and the circumstance or event which constitutes Good Reason occurs at the request or direction of such Person, or (III) the Employee’s employment is terminated by the Employer without Cause prior to a Change in Control (but following a Potential Change in Control) and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. For purposes of any determination regarding the applicability of the immediately preceding sentence, any position taken by the Employee shall be presumed to be correct unless the Employer establishes to the Committee by clear and convincing evidence that such position is not correct.
(A) In lieu of any further salary payments to the Executive Employee for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the ExecutiveEmployee, the Company Employer shall pay to the Executive Employee a lump sum severance payment, in cash, equal to two times (i) the ExecutiveEmployee’s Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based multiplied by three (3), and (ii) the average annual bonus, including but not limited to the Annual Bonus described in Exhibit A, earned by the Employee under the Employer’s annual base salary as approved by incentive plan in the Compensation Committee of Employer’s three fiscal years immediately preceding the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the fiscal year in which the Date of Termination occursoccurs multiplied by three (3). In addition, Employee will be entitled to receive any unpaid compensation and/or compensation attributable to LTIP RS Awards (at the target grant value) that have not been issued as provided in, and pursuant to the terms of, Exhibit A through the remainder of the Term. Of the foregoing payments, an amount equal to one year’s Base Salary plus one year’s Annual Bonus shall be in consideration of and allocated to Employee’s obligations under Section 13.2.
(B) Notwithstanding any provision of any Bonus Plan, For the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to beginning on the Date of Termination and ending at the denominator end of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of TerminationTerm, as it may be extended, the Company Employer shall arrange to provide the Executive Employee with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits those which the Executive Employee is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in amendment to such benefits made subsequent to a Change in Control Control, which reduction constitutes Good Reasonamendment adversely affects in any manner the Employee’s entitlement to or the amount of such benefits); provided, however, that, unless the Employee consents to a different method, such health insurance benefits shall be provided through a third-party insurer. Benefits otherwise receivable by the Executive Employee pursuant to this Section 6.1(C10.1(B) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive Employee without cost during the twenty-four (24) month benefit period following the ExecutiveEmployee’s termination of employment (and any such benefits actually received by or made available to the Executive Employee shall be reported to the Company Employer by the ExecutiveEmployee).
6.2 The . Notwithstanding the foregoing, any benefits or payments provided for in under this Section 6.1 (other than Section 6.1(C)10.1(B) hereof shall be made not later than subject to the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of following: (i) six (6the amount of expenses eligible for reimbursement or benefits provided under this Section 10.1(B) months after during any taxable year of the Date of Termination Employee may not affect the expenses eligible for reimbursement or the benefits to be provided to the Employee in any other taxable year; (ii) the death reimbursement of an eligible expense must be made on or before the last day of the Executive.
6.3 If Employee’s taxable year following the Executive’s employment is terminated following a Change taxable year in Control which the expense was incurred; and during (iii ) the term of this Agreement, unless right to reimbursement or such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees benefits may not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposedliquidation or exchange for another benefit.
Appears in 1 contract
Severance Payments. 6.1 If In the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is event that (i) by the Company for Cause, terminates the Executive's employment without Cause (as defined above) (ii) by reason within six (6) months of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in of Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with the Company for Good Reason prior (as hereinafter defined) or (iii) the Company elects not to a Change in Control (determined by treating a Potential Change in Control continue the Executive's employment following the term hereof, the Executive shall be entitled, subject to the immediately following sentence, to receive as a Change severance benefit periodic payments in Control an amount equal to his Base Salary in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs effect at the direction date of such Person.
(A) In lieu termination divided by the number of any further salary payments payroll periods per year then applicable to the Executive for periods subsequent to the Date executives of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to (hereinafter, "Severance Payments"), for 24 months if employment terminates under the Executive a lump sum severance payment, circumstances described in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of clauses (i) any incentive compensation which has been allocated or awarded (ii) or for 12 months if employment terminates under the circumstances described in clause (iii) . The Executive's right to receive Severance Payments hereunder is conditioned upon (i) the Executive's prior execution and delivery to the Company of a general release of any and all claims and causes of action of the Executive for a completed year or other measuring period preceding against the Date Company and the Company's and its subsidiaries' officers and directors, excepting only the right to any Base Salary and/or reimbursable expenses then accrued and unpaid under Section 4 of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise)this Agreement, and (ii) a pro rata portion to the Date Executive's continued performance of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated those obligations hereunder that continue by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period their express terms after the Date termination of Terminationhis employment, the Company shall arrange including without limitation those set forth in Sections 7 and 8. Any Severance Payments to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) be paid hereunder shall be reduced to payable in accordance with the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination payroll practices of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested its executives generally as in full. The Executive agrees not effect from time to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executivetime, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount all required withholding of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposedtaxes.
Appears in 1 contract
Sources: Employment Agreement (Provant Inc)
Severance Payments. 6.1 (i) If Employee's employment with the Executive’s Company is terminated during the term of this Agreement without Cause or, if following a Change of Control, Employee's employment is terminated as a result of an Involuntary Termination, other than for Cause, following such Change of Control, then the Company shall pay to Employee an amount equal to Employee's compensation under this Agreement, in the same periodic installments that Employee would otherwise receive such salary ("Severance Payments"); provided, however, that the Company may, in its sole discretion, pay to Employee a Change in Control and during lump sum cash payment with the present value of such Severance Payments within thirty (30) days of Employee's termination. In addition, the Company shall pay, so as to provide coverage through the term of this Agreement, unless such termination is or when Employee obtains other employment providing health care coverage, the COBRA insurance premium on behalf of Employee for the group health benefits that he has received while employed by the Company, to the extent permitted under the Company's benefits plans as they may be amended and pursuant to applicable law. This payment of COBRA premiums by the Company does not expand or extend the maximum period of COBRA coverage to which Employee would otherwise be entitled. Employee will not accrue or be entitled to any employee or other benefits, including without limitation, the Company's life insurance coverage, nor shall he accrue vacation under the Company's existing policies or any other arrangements after his termination, other than as expressly set forth in this Agreement.
(ii) If Employee terminates his employment or if the Company terminates Employee for Cause or by reason of Employee's death, then Employee shall not receive the Severance Payments or other payments set forth in (i) by the Company for Cause, (ii) by reason of death or Disability or above.
(iii) by Employee agrees that the Executive without Good ReasonSeverance Payments shall fully compensate him for, and provided that he agrees fully and forever to release any and all claims, if any then exist, arising out of his employment and the seven-day revocation period described in Section 6.6 has expired without revocation termination thereof with the sole exception of any alleged violation of applicable state or federal employment statutes, and upon payment of the Release and Waiver by the Executive, Severance Payments the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition be fully released and discharged as to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof)claims.
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Sources: Employment Agreement (Depomed Inc)
Severance Payments. 6.1 If a) In the Executive’s event that Employee's employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is by (i) the Company while this Agreement is in effect without Good Cause as defined in Sections 8(c)(1), (2) or (3) hereof, (ii) by the Company for CauseGood Cause as defined in Section 8(c)(4) hereof, (iiiii) because the Company terminates the Employment Period pursuant to Section 2 of this Employment Agreement, (iv) by reason of incapacity or disability in accordance with Section 4, or (v) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in accordance with Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.5:
(A1) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the The Company shall pay to the Executive a lump sum severance paymentEmployee or his estate, in cashno later than thirty (30) calendar days after such Termination Date, an amount equal to two any unpaid current Annual Base Salary accrued through the Termination Date, his bonus, calculated at one hundred percent (100%) of his Annual Base Salary prorated for the current fiscal year through the Termination Date, plus one (1) times the Executive’s annual base salary as approved by the Compensation Committee sum of the Board his then current Annual Base Salary and bonus, calculated at one hundred percent (100%) of his Annual Base Salary. The Company shall continue to be paid to the Executive (orkeep in full force and effect all plans or policies of medical, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) accident and life insurance benefits with respect to Employee and his dependents with the year in which the Date same level of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made coverage available to employees under the Executive without cost during the twenty-four (24) month period following the Executive’s termination terms of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed those employee benefit plans for a period of six twelve (612) months months, upon the same terms, costs and otherwise to the same extent as such plans are in order to satisfy the requirements effect for employees of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company who were similarly situated to Employee as of the Termination Date.
(2) Any of the restricted shares awarded to Employee on September 9, 1998 but which have not yet vested or been forfeited shall so advise become vested and non-forfeitable as of the ExecutiveTermination Date.
(3) To the extent stock options granted to Employee have not become fully vested and exercisable as of the Termination Date, such options shall become fully vested and such payments all vested stock options shall be made on exercisable until the earlier of (i) six two (62) months after years commencing on the Date of Termination Date, or (ii) the death original term of the Executiveoption grant.
6.3 If b) In the Executive’s event that Employee's employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for CauseGood Cause as defined in Sections 8(c)(1), (ii) by reason of death or Disability or 2), (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.3):
(i1) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the The Company shall pay to Employee, no later than thirty (30) calendar days after the Executive additional amounts Termination Date, an amount equal to his then current Annual Base Salary accrued but unpaid through the Termination Date; and Employee shall have a period of ninety (90) days after such Termination Date in which to exercise any exercisable vested stock options, subject to the “Gross Up Amounts”provisions of any applicable stock option agreement.
(2) such that Any restricted shares or stock options previously granted but still subject to restriction or unvested at the total amount of all Change in Control Payments net of the Excise Tax Termination Date shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposedforfeited.
Appears in 1 contract
Sources: Employment Agreement (Humana Inc)
Severance Payments. 6.1 (a) If the Executive’s 's employment is terminated following a Change for any reason including death, the Executive or spouse of the Executive shall be entitled to receive the greater of:
(i) the total of:
(A) 24 months' salary at the then applicable base salary rate;
(B) the present value, as determined by the Chairman, acting reasonably, of the benefits described in Control and section 4(b) that would be enjoyed by the Executive during the consecutive 24 months assuming his employment was not terminated and assuming the then current level of benefits were continued for those 24 months;
(C) the present value, as determined by the Chairman, acting reasonably, of the amounts that would have been paid by the Corporation or reimbursed to the Executive pursuant to section 8 during the consecutive 24 months assuming that his employment had not been termination; and
(ii) the salary otherwise payable to the Executive for the unexpired term of this Agreementagreement together with the other amounts described in clause 11(b)(i), unless such termination is (i) by the Company for Causemutatis mutandis, (ii) by reason of death or Disability or (iii) by provided that in no case will the Executive without Good Reason, and provided that receive less than the seven-day revocation period amount to which he is entitled under the Employment Standards Act (Ontario). The payment described in Section 6.6 has expired without revocation this subsection 11(b) is the only severance payment the Executive will receive in the event of the Release and Waiver by termination of this agreement for reasons contemplated in this subsection 11(b).
(b) The Executive's employment is terminated as a result of the permanent disability or death of the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment or his estate, as applicable, shall be deemed entitled to have been terminated following a Change in Control by receive, within 30 days of the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction date of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executivetermination, the Company shall pay to balance of the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to that would otherwise be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination remainder of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in fullagreement. The Executive agrees not to exercise reasonably comply with all requirements necessary for the portion Corporation to obtain life insurance for the term of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Personthis agreement.
(ic) If any payment or benefit made available to For the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this section 11, whenever a payment is to be determined with reference to the remaining term of this agreement, if less than six months remain in the term of this agreement and no party has given notice of its intention not to renew this agreement as contemplated by Section 6.41, the "remaining term “Excise Tax” of this agreement" shall mean include the tax imposed by Section 4999 remainder of the Code and any similar tax that may hereafter be imposedthen existing term of this agreement plus the renewal period.
Appears in 1 contract
Severance Payments. 6.1 4.1 If the Executive’s employment is terminated following a Change Qualifying Termination shall occur, in Control addition to any payments and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by benefits to which the Executive without Good Reason, and provided that the seven-day revocation period described in is entitled under Section 6.6 has expired without revocation of the Release and Waiver by the Executive3 hereof, the Company shall pay the Executive the payments described in this Section 6.1 4.1 (the “Severance Payments”); provided, however, that, in the case of clauses (A), (B), (C), (D) and (F) below, the Executive shall have executed and not revoked a release of claims in addition the form set forth in Exhibit A hereto. The Executive shall also be entitled to the Severance Payments (and any payments and benefits described in Sections 5.1 and 5.2 hereof (but not under Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason 3) if the Executive’s employment is terminated prior to by the Company other than (x) for Cause or (y) by reason of death or Disability within the six (6) month period immediately preceding a Change in Control without Cause at and the direction Executive reasonably demonstrates that such termination is otherwise in connection with or in anticipation of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if that actually occurs during the Executive terminates his employment with Good Reason prior to term of the Agreement (a “Pre-Change in Control Termination”) ; provided, however, that, in the case of clauses (determined A), (B), (C), (D) and (F) below, Executive shall have executed and not revoked a release of claims in the form set forth in Exhibit A hereto; and provided further, however, that any such payments shall be offset by treating a Potential Change in Control the amount of severance previously paid to the Executive under the Employment Agreement between the Executive and the Company dated as a Change in Control in applying of the definition date first written above and, to the extent permitted by Section 409A of Good Reason) if the circumstance Code, any other severance policy, plan or event which constitutes Good Reason occurs at program of the direction of such PersonCompany.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times hundred and fifty percent (250%) of the sum of (i) the Executive’s annual base salary as approved by the Compensation Committee of the Board then in effect (or immediately prior to be paid to the Executive (orany reduction resulting in a termination for Good Reason, if applicable) (the “Change in Control Salary”), plus (ii) the Executive’s target annual base salary is not presented bonus for approval at the Compensation Committee levelyear of termination, then or if no target has been set as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect the Date of Termination, the target bonus for the year immediately prior to the year in which the Date of Termination occursoccurs (the “Change in Control Bonus”).
(B) Notwithstanding Provided that the Company actually achieves the criteria requisite to make payments in respect of awards for the plan year during which the Executive’s employment terminates under the Management Achievement Plan (the “MAP”) or any provision of any Bonus Planother incentive compensation plan adopted by the Company in which the Executive participates, the Company Executive shall pay be eligible to receive an award for such plan year, which shall be prorated based on the Date of Termination. Under the MAP, the Executive a lump sum amount, in cash, shall receive an amount equal to the sum product of (i) any incentive compensation which has been allocated or awarded to the Executive Executive’s eligible base salary earnings for a completed year or other measuring the time worked from the start of the performance period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of multiplied by the maximum target bonus award percentage and the Executive’s applicable business unit achievement factor. Such amount payable shall be paid in the calendar year following the plan year to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date payment relates, as soon as practicable following the certification of Termination occurssuch plan year’s performance by the Management Development and Compensation Committee, treating any and all performance goals under such Bonus Plans at the same time as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed payments are made to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof)other MAP participants.
(C) For a twenty-four (24) the thirty month period after immediately following the Date of Termination, the Company shall arrange to provide the Executive (which includes the Executive’s eligible dependents for purposes of this subsection (C)) with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits those which the Executive is was receiving immediately prior to the Notice Date of Termination (without giving effect or immediately prior to any reduction resulting in a termination for Good Reason, if applicable); provided, however, that (i) the Executive’s and his qualified dependents’ COBRA eligibility period shall include the period during which the Company is providing benefits under this subsection (C); (ii) unless the Executive consents to a different method (or elects COBRA coverage at applicable COBRA rates), such health insurance benefits shall be provided through a third-party insurer; and (iii) the Executive shall be responsible for the payment of premiums for such benefits subsequent to a Change in Control which reduction constitutes Good Reason)the same amount as active employees of the Company. Benefits otherwise receivable by the Executive pursuant to this Section 6.1(Csubsection (C) shall be reduced to the extent comparable benefits (including continued coverage for any preexisting medical condition of any person covered by the benefits provided to the Executive and his eligible dependents immediately prior to the Date of Termination) are actually received by or made available to the Executive without cost by a subsequent employer during the twenty-four (24) month period following the Executive’s termination Date of employment Termination (and any such benefits actually received by or made available to the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for . Notwithstanding the foregoing, in Section 6.1 the event of a Pre-Change in Control Termination, on the sixtieth (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th60th) day following the expiration of the seven-day revocation period described Change in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case Control the Company shall so advise pay or reimburse the Executive for any amounts or benefits it would have been responsible to pay or provide to the Executive under this Section 4.1(C) during the period prior to the Change in Control, had the Change in Control occurred on the Date of Termination.
(D) If the Executive would have become entitled to benefits under the Company’s post-retirement health care or life insurance plans (as in effect immediately prior to the Date of Termination (or immediately prior to any reduction resulting in a termination for Good Reason, if applicable)) had the Executive, and such payments shall be made on ’s employment terminated at any time during the earlier period of (i) six (6) thirty months after the Date of Termination Termination, the Company shall provide such post-retirement health care or life insurance benefits to the Executive (subject to any employee contributions required under the terms of such plans in the same amounts as active employees of the Company) commencing on the later of (i) the date that such coverage would have first become available or (ii) the death date that benefits described in subsection (C) of this Section 4.1 terminate.
(E) The Company shall pay the Executive.
6.3 If , at a daily salary rate calculated from the Executive’s employment is terminated following annual base salary in effect immediately prior to the Date of Termination (or immediately prior to any reduction resulting in a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, if applicable), a lump sum amount equal to all outstanding stock options held by earned but unused vacation days through the Date of Termination.
(F) The Company shall pay, no later than the last day of the calendar year in which they are incurred, the reasonable fees and expenses of a full service nationally recognized executive outplacement firm until the earlier of the date the Executive for secures new employment or the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for date which vesting has been accelerated until the sevenis twenty-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated four months following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change Date of Termination; provided that in Control without Cause at no event shall the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction aggregate amount of such Personpayments exceed $30,000.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Sources: Change in Control Agreement (Armstrong World Industries Inc)
Severance Payments. 6.1 If Subject to Section 6.2 hereof, the Company shall pay the Executive the payments described in this Section 6.1 (the "Severance Payments") upon the termination of the Executive’s 's employment is terminated following a Change in Control and during the term of this Agreement, in addition to any payments and benefits to which the Executive is entitled under Section 5 hereof, unless such termination is (i) by the Company for Cause, (ii) by reason of the Executive's death or Disability Disability, or (iii) by the Executive without Good Reason. For purposes of this Agreement, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s 's employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if following a Change in Control if, following a Potential Change in Control, (i) the Executive’s 's employment is terminated without Cause prior to a Change in Control without Cause and such termination was at the request or direction of a Person who has entered into an agreement with the Company the consummation of which will would constitute a Change in Control or if Control, (ii) the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if and the circumstance or event which constitutes Good Reason occurs at the request or direction of such Person, or (iii) the Executive's employment is terminated without Cause prior to a Change in Control and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. For purposes of any determination regarding the applicability of the immediately preceding sentence, any position taken by the Executive shall be presumed to be correct unless the Company establishes to the Board by clear and convincing evidence that such position is not correct. Notwithstanding the foregoing, if the Executive terminates employment with the Company by means of a Discretionary Termination, he shall be entitled to 50% of the Severance Benefits set forth in (A) - (F) below.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two (2) times the sum of (i) the greater of the Executive’s 's annual base salary as approved by in effect immediately prior to the Compensation Committee occurrence of the Board to be paid to event or circumstance upon which the Executive (or, if Notice of Termination is based or the Executive’s 's annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect in effect immediately prior to the year Change in Control, and (ii) the greater of the average of the annual bonuses earned or received by the Executive from the Company or its subsidiaries in respect of the two (2) consecutive fiscal years immediately preceding that in which the Date of Termination occurs or the average of the annual bonuses so earned or received in respect of the two (2) consecutive fiscal years immediately preceding that in which the Change in Control occurs.
(B) Notwithstanding any provision of any Bonus Planannual or long-term incentive plan to the contrary, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed fiscal year or other measuring period preceding the Date of Termination under any such Bonus Plan plan but which, as of the Date of Termination, is contingent only upon the continued employment of the Executive to a subsequent date or otherwise has not yet been paid (pursuant to Section 5.2 hereof or otherwise)paid, and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable aggregate value of all contingent incentive compensation awards to the Executive for all then uncompleted periods under all Bonus Plans any such plan, calculated as to each such award by multiplying the award that the Executive would have earned on the last day of the performance award period, assuming the achievement, at the target level, of the individual and corporate performance goals established with respect to such award, by the year (or fraction obtained by dividing the number of full months and any fractional portion thereof) in which of a month during such performance award period through the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the total number of days months contained in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof)performance award period.
(C) Notwithstanding any provision of the Company's supplemental pension and thrift plans (the "Supplemental Plans") to the contrary, upon the termination of the Executive's employment by the Executive for Good Reason or by the Company, in either case at any time following the occurrence of a Change in Control and during the term of this Agreement, the Executive shall be deemed to have an additional twenty-four (24) months of benefit credit under each of the Supplemental Plans and shall be entitled to receive such additional credit either (1) as part of the benefit otherwise payable under the Supplemental Plan or (2) as a lump sum.
(D) For a the twenty-four (24) month period after immediately following the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits those which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in amendment to such benefits made subsequent to a Change in Control which reduction constitutes Good Reasonamendment adversely affects in any manner the Executive's entitlement to or the amount of such benefits); provided, however, that, unless the Executive consents to a different method (after taking into account the effect of such method on the calculation of "parachute payments" pursuant to Section 6.2 hereof), such health insurance benefits shall be provided though a third-party insurer. Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C6.1(D) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s 's termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 (E) If the Executive would have become entitled to benefits under the Company's post-retirement health care or life insurance plans had the Executive's employment terminated at any time during the period of twenty-four (24) months after the Date of Termination, the Company shall provide such post-retirement health care or life insurance benefits to the Executive commencing on the later of (i) the date that such coverage would have first become available and (ii) the date that like benefits described in subsection (D) of this Section 6.1 terminate.
(F) From and after the occurrence of Change in Control and notwithstanding any provision in the Company's 1995 Stock Option and Retention Stock Plan (or any agreement entered into thereunder or any successor stock compensation plan or agreement thereunder) to the contrary, any Option held by the Executive shall be fully exercisable and any restriction on any Retention Share held by the Executive shall lapse or be deemed fully satisfied, as applicable.
(A) Whether or not the Executive becomes entitled to the Severance Payments, if any payment or benefit received or to be received by the Executive in connection with a Change in Control or the termination of the Executive's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (all such payments and benefits, including the Severance payments, being hereinafter called "Total Payments") will be subject (in whole or part) to the Excise Tax, then the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment tax and Excise Tax upon the Gross-Up- Payment, shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.
(B) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, unless in the opinion of tax counsel (the "Tax Counsel") reasonably acceptable to the Executive and selected by the accounting firm (the "Auditor") which was, immediately prior to the Change in Control, the Company's independent auditor, such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or part) represent reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of section 280G(d)(3) and (4) of the Code. Prior to the payment date set forth in Section 6.3 hereof, the Company shall provide the Executive with its calculation of the amounts referred to in this Section 6.2(B) and such supporting materials as are reasonably necessary for the Executive to evaluate the Company's calculations. If the Executive disputes the Company's calculations (in whole or in part), the reasonable opinion of Tax Counsel with respect to the matter in dispute shall prevail.
(C) In the event that (i) amounts are paid to the Executive pursuant to subsection (A) of this Section 6.2, and (ii) the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment to the Executive in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess and such portion) at the time that the amount of such excess is finally determined.
6.3 The payments provided for in subsections (A), (B) and, if applicable, (C) of Section 6.1 (other than hereof and Section 6.1(C)) 6.2 hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) Termination; provided, however, that if the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion amounts of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executivepayments, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason or, if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (includingapplicable, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined)Tax, cannot be finally determined on or before such day, the Company shall pay to the Executive additional amounts (on such day an estimate, as determined in good faith by the “Gross Executive or, in the case of Gross-Up Amounts”) such that Payments under Section 6.2 hereof, in accordance with Section 6.2 hereof, of the total minimum amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments such payments to which the Executive would have been is clearly entitled if and shall pay the Excise Tax had not been imposed. For purposes remainder of this Section 6.4, such payments (together with interest at the term “Excise Tax” shall mean the tax imposed by Section 4999 rate provided in section 1274(b)(2)(B) of the Code and any similar tax that may hereafter Code) as soon as the amount thereof can be imposed.determined but in no event later than the thirtieth
Appears in 1 contract
Sources: Executive Employment Agreement (Union Pacific Resources Group Inc)
Severance Payments. 6.1 (a) If a Terminating Event occurs within two (2) years after the date on which a Change in Control has occurred, then the Executive shall be entitled to receive the following:
(i) an aggregate amount equal to 1.5 times the Executive’s “Highest Annual Compensation” (as defined in paragraph (c) of this Section 4), such amount to be paid out in equal periodic installments in accordance with the Bank’s ordinary payroll practices over the eighteen-month period commencing on the first payroll payment date after the date on which the Executive’s employment is terminated following a Change in Control and during with the term Bank terminates (the “Date of this Agreement, unless such termination is (i) by the Company for Cause, Termination”);
(ii) by reason of death any base salary, commissions or Disability other compensation accrued or (iii) by the Executive without Good Reasonearned, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction yet paid, as of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and any annual or other bonus actually awarded, but not yet paid, as of the Date of Termination, such amounts to be paid on the Date of Termination;
(iii) reimbursement for all business expenses for which the Executive would ordinarily be reimbursed by the Employers in lieu the ordinary course of business in accordance with the Employers’ policies, programs, procedures or practices incurred, but not yet paid, as of the Date of Termination, such amount to be paid on the Date of Termination;
(iv) payment of the per diem value of any severance benefit otherwise payable unused vacation days, whether deemed to the Executivebe accrued or unaccrued, the Company shall pay that would be available to the Executive a lump sum severance payment, in cash, equal to two times through the Executive’s annual base salary as approved by the Compensation Committee end of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the calendar year (or any portion thereofbut not beyond) in which the Date of Termination occurs;
(v) continuation of the Employers’ employee welfare benefit plans, treating programs and practices in which the Executive and his spouse and any and all performance goals under such Bonus Plans other eligible dependents participate or are eligible to participate as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination or, if more favorable to the Executive, as of the date of a Change in Control, at the levels in effect on, and at the denominator same out-of-pocket costs to the Executive as of, the Date of which Termination or, if more favorable to the Executive, as of the date of a Change in Control, for the eighteen-month period commencing on the Date of Termination (or, if such continuation is not permitted by applicable law or if the number Bank’s Board of days Directors so determines in its sole discretion, the Bank shall pay to the Executive a cash amount equal to the difference between (A) the aggregate amount that would be required to be paid by the Executive in order for the Executive to obtain a continuation of such year benefits and coverages for such eighteen-month period for himself, his spouse and any other eligible dependents under or through one or more plans, programs or other arrangements provided by one or more unaffiliated third parties and (or portion thereofB) the out-of-pocket costs that would be incurred by the Executive in accordance with the terms hereof if such continuation of benefits and coverages were provided under the Employers’ employee welfare benefit plans, programs and practices).;
(Cvi) For reimbursement for the reasonable fees of a twentyprofessional out-four placement service selected by the Executive within ninety (2490) month period days after the Date of Termination, such amount to be paid promptly after the Company shall arrange to provide expense is incurred; and
(vii) any other compensation and benefits as may be provided in accordance with the Executive with lifeterms of any applicable plans, disabilityprograms, accident and health insurance benefits substantially similar to policies, procedures or practices of the life, disability, accident and health insurance benefits which the Executive is receiving immediately Employers.
(b) If a Terminating Event occurs within one (1) year prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to date on which a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by occurs, then the Executive shall be reported entitled to the Company by the Executivereceive, as provided in this paragraph (b).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration , all of the seven-day revocation period described payments and benefits that he would have been entitled to receive under paragraph (a) of this Section 4 if such Terminating Event had occurred within two (2) years after the date on which a Change in Section 6.6 without revocation of the Release and Waiver by the ExecutiveControl has occurred, unless the Company determines such Terminating Event occurs as a result of a termination for Cause (as such term is defined in good faith that such payments are required to be delayed for a period paragraph (f) of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(iSection 8 below), in which case no increase or adjustments to the Company shall so advise amounts paid or benefits provided to the Executive, and Executive in connection with such payments Terminating Event shall be made on the earlier of under this paragraph (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 b). If the Executive’s employment is terminated following a Change required in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement accordance with the Company immediately preceding sentence, the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available amounts paid and benefits provided to the Executive in connection with a Change in Control Terminating Event that occurs within one (including, without limitation, any payment made pursuant 1) year prior to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following date on which a Change in Control occurs shall be increased or otherwise adjusted to ensure that the Executive receives the full payments and benefits contemplated by paragraph (in either categorya) of this Section 4, as if such Terminating Event had occurred within two (2) years after the date on which a “Change in Control Payment”has occurred. If the payments and/or benefits to be received by the Executive in connection with a Terminating Event that has occurred within one (1) is subject year prior to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all date on which a Change in Control Payments net occurs are required to be increased or adjusted under this paragraph (b), then the Executive shall be paid on the first ordinary payroll payment date of the Excise Tax shall equal Bank following the total amount occurrence of all such Change in Control Payments the cash amount necessary to which ensure that as of such date the Executive shall have received the full amounts of the payments and benefits that the Executive would have been entitled received as of such date under paragraph (a) of this Section 4 if such Terminating Event had occurred within two (2) years after the Excise Tax had date on which a Change in Control has occurred (including without limitation the economic equivalent of any noncash benefits that have not been imposed. provided to the Executive during the period from the date on which such Terminating Event occurred and the date on which such Change in Control occurred) and from and after such payroll payment date the Executive shall receive the full amounts of the remaining payments and benefits that the Executive is required to receive under paragraph (a) of this Section 4 in accordance with the terms thereof (including without limitation, to the extent that reimbursement for the reasonable fees of a professional out-placement service selected by the Executive has not already then been paid hereunder, such reimbursement with respect to a professional out-placement service selected by the Executive within ninety (90) days after the occurrence of such Change in Control).
(c) For purposes of this Section 6.44, the term Executive’s “Excise TaxHighest Annual Compensation” shall mean mean, as determined as of any Date of Termination, the tax imposed sum of (i) the highest per annum rate of base salary paid by Section 4999 the Employers to the Executive at any time during the three-year period prior to such Date of Termination, (ii) the highest amount of commission or other compensation (which is not otherwise included in the base salary and bonus amounts referred in clauses (i) and (iii) of this paragraph (c)) paid by the Employers to the Executive with respect to any of the Code three most recently completed fiscal years of the Bank prior to such Date of Termination, and (iii) the highest annual incentive compensation or other bonus amount paid by the Employers to the Executive (or which would have been paid but for an election by the Executive to defer payment to a later period) with respect to any similar tax that may hereafter be imposedof the three most recently completed fiscal years of the Bank prior to such Date of Termination.
Appears in 1 contract
Sources: Change in Control/Noncompetition Agreement (Enterprise Bancorp Inc /Ma/)
Severance Payments. 6.1 If Provided that you have not ceased employment with the Executive’s Company prior to the Termination Date, commenced employment is terminated following a Change with another entity prior to the Termination Date, or are not otherwise in Control and during violation of the term terms of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, Separation Agreement and provided that the seven-day revocation period described there is not cause for termination of your employment as set forth in Section 6.6 has expired without revocation 3(a)(iii) of the Release Employment Agreement, you and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, agree that the Company shall pay to you (or your Beneficiary) the Executive a lump sum severance payments identified in this Section 8. You agree that these payments are in lieu of any and all amounts that you might otherwise claim from the Company, except as to Base Salary and benefits earned through the Termination Date in accordance with Section 6 above, and pursuant to Section 10(c) of the Employment Agreement you hereby waive any claim of right to any payment, right or benefit under the Employment Agreement (including, without limitation, under Section 3(c) thereof) other than those set forth in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid this Separation Agreement. Provided that you have executed and delivered to the Executive (orCompany the General Release and Waiver prescribed herein, if and provided further that the Executive’s annual base salary is not presented for approval at statutory period during which you are entitled to revoke the Compensation Committee level, then as otherwise established by J. General Release and ▇▇▇▇▇▇ or one has expired without revocation by you of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus PlanGeneral Release and Waiver, the Company shall pay to will make these payments on the Executive schedule set forth herein:
a. Four Million Eight Hundred Ninety Four Thousand and no/100 U.S. Dollars ($4,894,000), less tax and payroll withholding required by law, payable in a lump sum amounton the eighth (8th) day following the Termination Date; provided, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus that said amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received specified in paragraph 7 above.
b. Fifty-Three Thousand and no/100 U.S. Dollars ($53,000.00), less tax and payroll withholding required by or made available to law, payable in a lump sum on the Executive without cost during the twenty-four (24) month period date that is six months plus one day following the Executive’s termination of employment Termination Date.
c. Fifty-Three Thousand and no/100 U.S. Dollars ($53,000.00), less tax and any such benefits actually received payroll withholding required by law, payable in a lump sum on the Executive shall be reported date that is twelve months following the Termination Date. If you fail to timely execute and deliver to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the General Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination mentioned above or (ii) the death if you revoke any of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the General Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined)Waiver, the Company shall have no obligation to pay or provide to you the Executive additional amounts (payments set forth in Sections 8.a., 8.b. and 8.c. above in this Agreement or payments required under the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposedEmployment Agreement.
Appears in 1 contract
Severance Payments. 6.1 Subject in all events to the provisions of Section 3(c)(ii)(f) above:
(a) If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause pursuant to Section 4(a)(iv), or by the Executive’s resignation for Good Reason pursuant to Section 4(a)(v), the Company shall provide the Executive with Good Reason if the following payments and benefits, subject to Section 12; provided, however, that payments and benefits provided pursuant to this Agreement shall be contingent upon the Executive’s execution and expiration of the revocation period without revocation, within sixty (60) days following the effective Date of Termination, of a general waiver and release of claims by the Executive against the Company and its affiliates substantially in the form attached hereto as Exhibit B, and such amounts shall be paid or commence to be paid (unless due later pursuant to Section 12(b)) on the sixtieth (60th) day following the Date of Termination (with a lump sum payment of any installments due prior to such date paid as part of the initial payment):
(i) a payment equal to the Benefit Amount; provided, however, that such severance payment shall be in lieu of notice or any other benefits to which the Executive might otherwise be entitled. The payment shall be paid in equal installments over the Severance Period, in accordance with the normal payroll practices of the Company;
(ii) the Annual Bonus for the year in which such termination occurs (based on the Company’s performance in relation to the applicable performance targets, as determined in good faith by the Compensation Committee), multiplied by the Pro-Rate Factor (as applicable to the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company Company) and paid at such time as the consummation of which will constitute Annual Bonus would otherwise have been paid;
(iii) a Change in Control or if monthly amount equal to the applicable COBRA premiums for the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to and dependents including medical, dental and prescription drug coverage for the Executive and dependents for periods subsequent to the period from the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on until the earlier of (i) the end of the Severance Period or (ii) the date on which the Executive becomes eligible to receive comparable benefits from a subsequent employer (the “Covered Period”); provided, however, that if there are any delayed payment requirements for the first sixty (60) days or six (6) months after the Date of Termination or (ii) Termination, the death amounts for such period shall be payable in lump sum immediately after the end of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.delay; and
(ib) If any payment or benefit made available to the Executive in connection with Upon a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following pursuant to Section 4(a)(i) the Executive’s estate will receive payment of the Benefit Amount, paid in a Change in Control lump sum within thirty (in either category30) days after the date of such event. The Company may, a “Change in Control Payment”) is subject at its election and at its own expense, obtain insurance to pay such Benefit Amount. In addition to the Excise Tax foregoing, Executive’s estate will be entitled to the payments described in Sections 5(a)(ii) and (as hereinafter definediii).
(c) Upon a termination of the Executive’s employment pursuant to Section 4(a)(ii), the Company shall pay Executive will receive payment of the Benefit Amount, paid in equal installments over a period of twenty-four (24) months beginning on the date of the Disability, furnished to the Executive additional amounts pursuant to a Disability salary continuation benefit program to be maintained by the Company. In addition to the foregoing, Executive will be entitled to the payments described in Sections 5(a)(ii) and (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposediii).
Appears in 1 contract
Severance Payments. 6.1 If Subject to Section 10.2 hereof, the ExecutiveEmployer shall pay the Employee the payments described in this Section 10.1 (the “Severance Payments”) upon the termination of the Employee’s employment is terminated following a Change in Control and during prior to the term end of this Agreementthe Change-in-Control Protective Period, in addition to any payments and benefits to which the Employee is entitled under Sections 5, 6, 7 and 8.1 hereof, unless such termination is (i) by the Company Employer for Cause, (ii) by reason of death or Disability Disability, or (iii) by the Executive Employee without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation . For purposes of the Release and Waiver by the Executivethis Agreement, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The ExecutiveEmployee’s employment shall be deemed to have been terminated by the Employer without Cause following a Change in Control by the Company without Cause or by the Executive Employee with Good Reason following a Change in Control, as the case may be, if (i) the ExecutiveEmployee’s employment is terminated without Cause prior to a Change in Control without Cause and such termination was at the request or direction of a Person who has entered into an agreement with the Company Employer the consummation of which will would constitute a Change in Control or if Control, (ii) the Executive Employee terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if and the circumstance or event which constitutes Good Reason occurs at the request or direction of such Person, or (iii) the Employee’s employment is terminated by the Employer without Cause prior to a Change in Control (but following a Potential Change in Control) and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. For purposes of any determination regarding the applicability of the immediately preceding sentence, any position taken by the Employee shall be presumed to be correct unless the Employer establishes to the Committee by clear and convincing evidence that such position is not correct.
(A) In lieu of any further salary payments to the Executive Employee for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the ExecutiveEmployee, the Company Employer shall pay to the Executive Employee a lump sum severance payment, in cash, equal to two three (3) times the Executivesum of (i) the higher of the Employee’s Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or the Employee’s Base Salary in effect immediately prior to the Change in Control, and (ii) the higher of the annual base salary as approved bonus earned by the Compensation Committee Employee in respect of the Board to be paid to the Executive (or, if the ExecutiveEmployer’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the fiscal year immediately preceding that in which the Date of Termination occurs or the average annual bonus so earned in respect of the three fiscal years immediately preceding that in which the Change in Control occurs.
(B) Notwithstanding any provision of any Bonus Planannual incentive plan to the contrary, the Company Employer shall pay to the Executive Employee a lump sum amount, in cash, equal to the sum of (i) any annual incentive compensation which has been allocated or awarded to the Executive Employee for a completed fiscal year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant and which, as of the Date of Termination, is contingent only upon the continued employment of the Employee to Section 5.2 hereof or otherwise)a subsequent date, and (ii) a pro rata portion to the Date of Termination of a deemed annual bonus for the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the Employer’s fiscal year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum (i) the higher of the annual bonus amount earned by a fraction, the numerator Employee with respect to the immediately preceding fiscal year or the average annual bonus earned by the Employee with respect to the immediately preceding three fiscal years of which is the Employer by (ii) the fraction obtained by dividing the number of days in such the fiscal year (or portion thereof) of the Employer in which elapsed termination occurs up to and including the Date of Termination and the denominator of which is the number of days in such year (or portion thereof)by 365.
(C) For a twentythe thirty-four six (2436) month period after immediately following the Date of Termination, the Company Employer shall arrange to provide the Executive Employee with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits those which the Executive Employee is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in amendment to such benefits made subsequent to a Change in Control Control, which reduction constitutes Good Reasonamendment adversely affects in any manner the Employee’s entitlement to or the amount of such benefits); PROVIDED, HOWEVER, that, unless the Employee consents to a different method (after taking into account the effect of such method on the calculation of “parachute payments” pursuant to Section 10.2 hereof), such health insurance benefits shall be provided through a third-party insurer. Benefits otherwise receivable by the Executive Employee pursuant to this Section 6.1(C10.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive Employee without cost during the twentythirty-four six (2436) month period following the ExecutiveEmployee’s termination of employment (and any such benefits actually received by or made available to the Executive Employee shall be reported to the Company Employer by the ExecutiveEmployee).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof . If the Severance Payments shall be made not later than decreased pursuant to Section 10.2 hereof, and the fifth (5thSection 10.1(C) day following benefits which remain payable after the expiration application of Section 10.2 hereof are thereafter reduced pursuant to the immediately preceding sentence because of the seven-day revocation period described in Section 6.6 without revocation receipt or availability of comparable benefits, the Employer shall, at the time of such reduction, pay to the Employee the least of (a) the amount of the Release and Waiver by decrease made in the ExecutiveSeverance Payments pursuant to Section 10.2 hereof, unless (b) the Company determines amount of the subsequent reduction in good faith that such payments are required to be delayed for a period of six (6these Section 10.1(C) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i)benefits, in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (iiC) the death of maximum amount which can be paid to the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this AgreementEmployee without being, unless such termination is (i) by the Company for Causeor causing any other payment to be, (ii) nondeductible by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation section 280G of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such PersonCode.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Severance Payments. 6.1 If Subject to Section 6.2 and Section 12(B) hereof, if the Executive’s employment is terminated Executive has a Separation from Service following a Change in Control and during the term Term, and such Separation from Service is an involuntary Separation from Service (within the meaning of this Agreement, unless such termination is (iTreasury Regulation section 1.409A-1(n)(1)) by the Company other than for CauseCause or Disability, (ii) by reason of death or Disability or (iii) is a Separation from Service by the Executive without for Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, then the Company shall pay the Executive the payments amounts, and provide the Executive the benefits, described in this Section 6.1 (the “Severance Payments”) ), in addition to the any payments and benefits described to which the Executive is entitled under Section 5 hereof. Notwithstanding the foregoing, the Executive shall not be eligible to receive any payment or benefit provided for in Sections 5.1 this Section 6.1 unless the Executive shall have executed and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed delivered to have been terminated following a Change in Control by the Company without Cause within 45 days after the Separation from Service a release (substantially in the form of Exhibit A hereto) in favor of the Company and others set forth on said Exhibit A, relating to all claims or by the Executive with Good Reason if liabilities of any kind relating to the Executive’s employment is terminated prior to a Change in Control without Cause at the direction and termination of a Person who has entered into an agreement employment with the Company the consummation of which will constitute a Change in Control or if Company, and the Executive terminates his employment with Good Reason prior shall not have revoked such release within 7 days after executing it. Subject to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying Section 12(B) hereof, any payments and benefits that, but for the definition of Good Reason) if the circumstance preceding sentence, may be paid or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments provided pursuant to the Executive for periods subsequent provisions below of this Section 6.1 before the 56th day following the Separation from Service shall be paid or provided on the 56th day following the Separation from Service, unless such payment or benefit may be paid or provided pursuant to the Date provisions below of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month 6.1 within a designated period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other Separation from Service that ends more than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day 56 days following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i)Separation from Service, in which case the Company shall so advise the Executive, and such payments payment or benefit shall be made on the earlier of (i) six (6) months after the Date of Termination paid or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise provided within the portion of such stock options for which vesting has been accelerated until designated period that begins on the seven56th day following the Separation from Service and ends on the last day of such designated period, provided in each case that the Executive executed the release and delivered it to the Company within the aforementioned 45-day revocation period described in Section 6.6 has expired without revocation of and did not revoke the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Personrelease within 7 days after executing it.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Severance Payments. 6.1 4.1 If the Executive’s employment is terminated following a Change Qualifying Termination shall occur, in Control addition to any payments and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by benefits to which the Executive without Good Reason, and provided that the seven-day revocation period described in is entitled under Section 6.6 has expired without revocation of the Release and Waiver by the Executive3 hereof, the Company shall pay the Executive the payments described in this Section 6.1 4.1 (the “Severance Payments”); provided, however, that, in the case of clauses (A), (B), (C), (D) and (F) below, the Executive shall have executed and not revoked a release of claims in addition the form set forth in Exhibit A hereto. The Executive shall also be entitled to the Severance Payments (and any payments and benefits described in Sections 5.1 and 5.2 hereof (but not under Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason 3) if the Executive’s employment is terminated prior to by the Company other than (x) for Cause or (y) by reason of death or Disability within the six (6) month period immediately preceding a Change in Control without Cause at and the direction Executive reasonably demonstrates that such termination is otherwise in connection with or in anticipation of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if that actually occurs during the Executive terminates his employment with Good Reason prior to term of the Agreement (a “Pre-Change in Control Termination”); provided, however, that, in the case of clauses (determined A), (B), (C), (D) and (F) below, Executive shall have executed and not revoked a release of claims in the form set forth in Exhibit A hereto; and provided further, however, that any such payments shall be offset by treating a Potential Change in Control as a Change in Control in applying the definition amount of Good Reason) if severance previously paid to the circumstance Executive under any employment agreement between the Executive and the Company and, to the extent permitted by Section 409A of the Code, any other severance policy, plan or event which constitutes Good Reason occurs at program of the direction of such PersonCompany.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times one hundred (100%) of the Executive’s annual base salary as approved by the Compensation Committee of the Board then in effect (or immediately prior to be paid to the Executive (orany reduction resulting in a termination for Good Reason, if applicable) (the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year “Change in which the Date of Termination occursControl Salary”).
(B) Notwithstanding any provision of any Bonus Planannual incentive plan to the contrary, the Company shall pay to the Executive a lump sum an amount, in cash, equal to the sum of (i) any unpaid incentive compensation which has been allocated or awarded to the Executive for a completed fiscal year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant plan and which, as of the Date of Termination, is contingent only upon the continued employment of the Executive to Section 5.2 hereof or otherwise)a subsequent date, and (ii) a pro rata portion to the Date of Termination of the maximum Executive’s target bonus amount payable to the Executive under all Bonus Plans with respect to for the year (or any portion thereof) in which the Date of Termination occursoccurs (or the target in effect immediately prior to the first occurrence of an event or circumstance constituting Good Reason), treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum target bonus amount by a fraction, the numerator of which is fraction obtained by dividing the number of days in full months and any fractional portion of a month during such year (or portion thereof) which elapsed to through the Date of Termination and the denominator of which is the number of days in such year by twelve (or portion thereof12).
(C) For a twenty-four (24) the twelve month period after immediately following the Date of Termination, the Company shall arrange to provide the Executive (which includes the Executive’s eligible dependents for purposes of this subsection (C)) with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits those which the Executive is was receiving immediately prior to the Notice Date of Termination (without giving effect or immediately prior to any reduction resulting in a termination for Good Reason, if applicable); provided, however, that (i) the Executive’s and her qualified dependents’ COBRA eligibility period shall include the period during which the Company is providing benefits under this subsection (C); (ii) unless the Executive consents to a different method (or elects COBRA coverage at applicable COBRA rates), such health insurance benefits shall be provided through a third-party insurer; and (iii) the Executive shall be responsible for the payment of premiums for such benefits subsequent to a Change in Control which reduction constitutes Good Reason)the same amount as active employees of the Company. Benefits otherwise receivable by the Executive pursuant to this Section 6.1(Csubsection (C) shall be reduced to the extent comparable benefits (including continued coverage for any preexisting medical condition of any person covered by the benefits provided to the Executive and her eligible dependents immediately prior to the Date of Termination) are actually received by or made available to the Executive without cost by a subsequent employer during the twenty-four (24) month period following the Executive’s termination Date of employment Termination (and any such benefits actually received by or made available to the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for . Notwithstanding the foregoing, in Section 6.1 the event of a Pre-Change in Control Termination, on the sixtieth (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th60th) day following the expiration of the seven-day revocation period described Change in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case Control the Company shall so advise pay or reimburse the Executive for any amounts or benefits it would have been responsible to pay or provide to the Executive under this Section 4.1(C) during the period prior to the Change in Control, had the Change in Control occurred on the Date of Termination.
(D) If the Executive would have become entitled to benefits under the Company’s post-retirement health care or life insurance plans (as in effect immediately prior to the Date of Termination (or immediately prior to any reduction resulting in a termination for Good Reason, if applicable)) had the Executive, and such payments shall be made on ’s employment terminated at any time during the earlier period of (i) six (6) twenty four months after the Date of Termination Termination, the Company shall provide such post-retirement health care or life insurance benefits to the Executive (subject to any employee contributions required under the terms of such plans in the same amounts as active employees of the Company) commencing on the later of (i) the date that such coverage would have first become available or (ii) the death date that benefits described in subsection (C) of this Section 4.1 terminate.
(E) The Company shall pay the Executive.
6.3 If , at a daily salary rate calculated from the Executive’s employment is terminated following annual base salary in effect immediately prior to the Date of Termination (or immediately prior to any reduction resulting in a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, if applicable), a lump sum amount equal to all outstanding stock options held by earned but unused paid time off days through the Date of Termination.
(F) The Company shall pay, no later than the last day of the calendar year in which they are incurred, the reasonable fees and expenses of a full service nationally recognized executive outplacement firm until the earlier of the date the Executive for secures new employment or the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for date which vesting has been accelerated until the sevenis twenty-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated four months following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change Date of Termination; provided that in Control without Cause at no event shall the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction aggregate amount of such Personpayments exceed $5,000.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Sources: Change in Control Agreement (Insignia Systems Inc/Mn)
Severance Payments. 6.1 If In the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change pursuant to Section 4(b) or 4(c) (and, for the avoidance of doubt, under circumstances which the Board in Control its sole discretion has determined would not constitute Cause under any of clauses (in either categoryi) through (ix) of Section 4(a)), a “Change in Control Payment”) is and subject to completion of and continuing compliance with the Excise Tax (as hereinafter definedconditions set forth in Section 5(c), the Company shall will pay the Executive, in addition to Final Compensation, (i) the Base Salary for a period of nine (9) months following the date of termination, payable in the form of salary continuation, and (ii) provided that the Executive timely elects to continue his coverage and that of any eligible dependents in the Company’s group health plans under the federal law known as “COBRA” or similar state law, a monthly amount equal to DOCPROPERTY DOCXDOCID DMS=InterwovenIManage Format=<<NUM>>_<<VER>> PRESERVELOCATION \* MERGEFORMAT the monthly health premiums for such coverage paid by the Company on behalf of the Executive and any eligible dependents immediately prior to the Executive additional amounts (the “Gross Up Amounts”) such date that the total amount Executive’s employment terminates until the earliest of all Change in Control Payments net of (x) the Excise Tax shall equal date that is nine (9) months following the total amount of all Change in Control Payments date that the Executive’s employment terminates, (y) the date that the Executive and the Executive’s eligible dependents cease to be eligible for such COBRA coverage under applicable law or plan terms and (z) the date on which the Executive obtains health coverage from another employer. Notwithstanding the foregoing, in the event that the Company’s payment of the amounts described under subsection (ii) would have been entitled if subject the Excise Tax had not been imposed. For purposes of this Section 6.4Company to any tax or penalty under the Patient Protection and Affordable Care Act (as amended from time to time, the term “Excise Tax” shall mean the tax imposed by ACA”), or Section 4999 105(h) of the Internal Revenue Code of 1986, as amended (“Section 105(h)”), or applicable regulations or guidance issued under the ACA or Section 105(h), the Executive and any similar tax that may hereafter be imposedthe Company agree to work together in good faith, consistent with the requirements for compliance with or exemption from Section 409A, to restructure such benefit.
Appears in 1 contract
Severance Payments. 6.1 If In the event the Executive’s employment is terminated following a Change in Control and during prior to the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation expiration of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control Term by the Company without Cause or by the Executive with for Good Reason Reason, which shall not include any termination by the Company due to the Executive’s death or incapacity that prevents the Executive from performing the essential functions of his position, the Executive shall be entitled to the Termination Payments and the following “Severance Package”, in lieu of any other compensation and benefits whatsoever:
(i) continued payment of the Executive’s Salary for the remainder of the Term;
(ii) continued participation in the Company’s group medical plan pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA”) or if the Executive’s employment is terminated prior COBRA rights have expired, pursuant to a Change in Control without Cause an individual policy at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if no cost to the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying until the definition earlier of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee last day of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year month in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay last payment is made to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C4(a)(i) shall be reduced to above and (B) the extent comparable benefits are actually received by or made available to date on which the Executive without cost during first becomes eligible for coverage provided by any other entity following termination;
(iii) payment of the twenty-four guaranteed bonus of fifteen percent (2415%) month period following of the Executive’s Salary payable pursuant to Section 3(b) of the Letter Agreement, but only for the year of the Term in which the termination of employment (and any occurs, payable at the same time as such benefits actually received by the Executive shall be reported bonuses are paid to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration executives of the seven-day revocation period described Company; and
(iv) (A) in Section 6.6 without revocation the event the termination of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of for Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction , acceleration of such Person.
(i) If vesting of that unvested portion of any payment or benefit made available awards provided to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plansthe ▇▇▇▇▇▇ Gaming, stock option LLC 2011 Long Term Incentive Plan (the “Plan”) that is next scheduled to vest, provided such vesting would have otherwise occurred prior to the expiration of the Term, with the result that such portions of such awards are immediately and fully exercisable, or equity participation right plans(B) or in the event the termination of employment is by the Executive’s employment following a Change in Control Executive for Good Reason within six (in either category, 6) months after a “Change change of control,” as that term is defined in Control Payment”) is subject to the Excise Tax (as hereinafter defined)Plan, the Company shall pay acceleration of vesting of all unvested portions of any awards provided to the Executive additional amounts (pursuant to the “Gross Up Amounts”) such Plan, with the result that all the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code awards provided are immediately and any similar tax that may hereafter be imposedfully exercisable.
Appears in 1 contract
Severance Payments. 6.1 (a) If the Executive’s 's employment is terminated following a Change for any reason including death, the Executive or spouse of the Executive shall be entitled to receive the greater of:
(i) the total of:
(A) 24 months' salary at the then applicable base salary rate;
(B) the present value, as determined by the Chairman, acting reasonably, of the benefits described in Control and section 4(b) that would be enjoyed by the Executive during the consecutive 24 months assuming his employment was not terminated and assuming the then current level of benefits were continued for those 24 months; and
(C) the present value, as determined by the Chairman, acting reasonably, of the amounts that would have been paid by the Corporation or reimbursed to the Executive pursuant to section 8 during the consecutive 24 months assuming that his employment had not been termination; and
(ii) the salary otherwise payable to the Executive for the unexpired term of this Agreementagreement together with the other amounts described in clause 11 (b)(i), unless such termination is (i) by the Company for Causemutatis mutandis, (ii) by reason of death or Disability or (iii) by provided that in no case will the Executive without Good Reason, and provided that receive less than the seven-day revocation period amount to which he is entitled under the Employment Standards Act (Ontario). The payment described in Section 6.6 has expired without revocation this subsection 11(b) is the only severance payment the Executive will receive in the event of the Release and Waiver by termination of this agreement for reasons contemplated in this subsection 11(b).
(b) The Executive's employment is terminated as a result of the permanent disability or death of the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment or his estate, as applicable, shall be deemed entitled to have been terminated following a Change in Control by receive, within 30 days of the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction date of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executivetermination, the Company shall pay to balance of the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to that would otherwise be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination remainder of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in fullagreement. The Executive agrees not to exercise reasonably comply with all requirements necessary for the portion Corporation to obtain life insurance for the term of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Personthis agreement.
(ic) If any payment or benefit made available to For the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this section 11, whenever a payment is to be determined with reference to the remaining term of this agreement, if less than six months remain in the term of this agreement and no party has given notice of its intention not to renew this agreement as contemplated by Section 6.41, the "remaining term “Excise Tax” of this agreement" shall mean include the tax imposed by Section 4999 remainder of the Code and any similar tax that may hereafter be imposedthen existing term of this agreement plus the renewal period.
Appears in 1 contract
Severance Payments. 6.1 If the Executive’s employment is terminated following a Change 3.01. Except as provided in Control and during the term of this AgreementSection 3.03, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reasonbelow, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation Executive’s termination occurs on or after January 1, 2016, regardless of the Release and Waiver by the Executive, reason for his termination the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments or bonuses to the Executive for any periods subsequent to the Date of Termination his termination, and in lieu of any severance benefit benefits otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect any prior agreement or Company-established severance plan, as follows:
(a) An amount equal to the greater of $400,000 or one (1) year of the Executive’s salary at the base salary rate in effect as of the date of his termination; and
(or any portion thereofb) An amount equal to the Executive’s target Non-Plan Award for the calendar year in which the Date of Termination occurshis employment terminates, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount if any, multiplied by a fractionfraction (the “Applicable Fraction”), the numerator of which is the number of days in such calendar year (or portion thereof) which elapsed to that the Date Executive was an employee of Termination the Company, and the denominator of which is 365; and
(c) an amount equal to the number payment, if any, that the Executive would have been paid in respect of days his Plan Award for the calendar year in which his employment terminates had the Executive been employed by the Company for the entire calendar year, multiplied by the Applicable Fraction; provided, however, that the amount payable to the Executive under clauses (b) and (c) of this Section shall not exceed, in the aggregate, the Applicable Fraction multiplied by the maximum aggregate annual incentive award that could have been payable to him for the year in which his employment terminates had he been employed by the Company for the entire calendar year. “Subject to the provisions of Sections 6.04 and 6.05, the amount set forth in clause (a) of this Section shall be payable in advance in four equal quarterly installments commencing with the Date of Termination and on each succeeding 90th day thereafter, subject to Section 21(a); the amount set forth in clause (b) of this Section shall be payable in accordance with Section 21(a); and the amount set forth in clause (c) of this Section shall be payable, if at all, on the later of the date six months after the date of the Executive’s separation from service and the date when similar annual incentive awards under the Company’s Key Executive Incentive Bonus Plan, or if not then in effect, granted under any similar plan, (the “Plan”) are paid to other senior executives of the Company who have remained in its employ throughout such calendar year. Notwithstanding the foregoing, if the Executive’s employment terminates in a termination described in this Section 3.01 during a calendar year before the terms of annual award opportunities for such year shall have been established under the Plan or any other annual incentive program for the year of termination, such year of termination, then for the purposes of this Section 3.01 (or portion thereofa) his target Non-Plan Award for such year of termination shall be deemed to be his target Non-Plan Award for the immediately preceding calendar year, if any (adjusted for his current salary), and (b) his Plan Award for such year of termination shall be determined by assuming the same dollar pay-out opportunities (expressed as a percentage of his then current salary) as the Executive had under his Plan Award for the immediately preceding calendar year, but with performance based on the Company performance goals established under the Plan for the year of termination.
3.02. In addition to the amounts provided for in Section 3.01, above, the Executive will be entitled to the following:
(Ca) For a twenty-four (24) month period after Until 18 months from the Date of Termination, Executive (and, to the extent applicable, Executive’s dependents) shall continue to be covered, at the Company’s expense, under the Company’s medical, dental and hospital insurance plans and until twelve (12) months from the Date of Termination, Executive shall continue to be covered, at the Company’s expense, under the Company’s group life and accidental death and dismemberment insurance plans; provided that if Executive is provided with comparable coverage by a successor employer any such coverage by the Company shall arrange cease;
(b) All payments to provide which the Executive with lifehas vested rights as of the date of his termination under any employee benefit, disability, accident insurance and health insurance similar plans which provide for payments beyond the period of employment, except for any benefits substantially similar to provided under severance plan or program established or maintained by the lifeCompany other than the Executive’s Continuity Agreements, disabilityas amended; and
(c) All unpaid amounts, accident and health insurance benefits as of the Date of Termination, in respect of any Non-Plan Award or Plan Award for any calendar year ending before the calendar year in which the Executive is receiving immediately prior to the Notice Date of Termination occurs, which would have been payable had Executive remained in the Company’s employ until such Bonus would have been paid
3.03. The Executive will be (without giving effect 1) paid an annual base salary of $525,000 for the 2015 calendar year, and (2) entitled to any reduction in such benefits subsequent payment of his Plan Award and Non-Plan Award, if any, for the 2015 year with an aggregate target equal to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced 100% of his 2015 base salary to the extent comparable benefits are actually received by or made available earned and payable under the terms of the Plan and with the actual payment based on the same ratio to target as the other Executive without cost during the twenty-four (24) month period following the ExecutiveVice President’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by actual Bonuses bear to their target Bonus, and such payment for the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall period will be made not later than at the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith same time that such payments are required made generally to be delayed for a period of six other senior executives who participate in the Plan (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i“2015 Incentive Payment”), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall participation in the LTIP beyond December 31, 2015 (that is, for periods beginning in calendar year 2016 and beyond), if any, must be deemed to have been terminated following a Change in Control approved by the Company without Cause Company’s Board of Directors or by the Compensation Committee thereof. In the event the Board (or Compensation Committee) in its discretion does not grant the Executive with Good Reason if an award in 2016 under the LTIP for the performance period 2016-2018 based on the Executive’s employment 2015 rate of salary (notwithstanding any different rate of salary in 2016) and salary multiplier in effect during 2015 (it being understood that whether or not to make such in award is terminated prior to a Change in Control without Cause at the direction sole discretion of a Person who has entered into an agreement with the Company Board of Directors or the consummation of which will constitute a Change in Control or if Compensation Committee thereof), the Executive terminates may elect to terminate his employment with Good Reason prior to a Change the Company. In the event the Company does not pay the Executive the 2015 annual base salary described above, the Board does not grant the Executive the LTIP restricted stock unit award in Control (determined by treating a Potential Change January 2016 and performance based cash award in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available respect to the Executive period commencing January 1, 2016 as described above (it being understood that whether or not to make such in connection with a Change award is in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination the sole discretion of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to Board of Directors or the Excise Tax (as hereinafter definedCompensation Committee thereof), or the Board does not cause the Company shall to pay to the Executive additional amounts the 2015 Incentive Payment, as described above, the Executive may elect to terminate his employment with the Company. If such election is made prior to April 1, 2016, or if later at the time the 2015 Bonus payment is made (and only if such election is made prior to April 1, 2016 or if later at the “Gross Up Amounts”) such that time the total amount of 2015 Incentive Payment is made), this Third Amended Severance Agreement will have no force and effect and, instead, all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 provisions of the Code Amended Severance Agreement, as amended prior to January 1, 2016, shall apply, including, but not limited to Articles 3, 4 and any similar tax that may hereafter be imposed5.” “4 INTENTIONALLY OMITTED” “5 INTENTIONALLY OMITTED”
Appears in 1 contract
Severance Payments. 6.1 If The Employer shall pay the ExecutiveEmployee the payments described in this Section 10.1 (the “Severance Payments”) upon the termination of the Employee’s employment is terminated following a Change in Control and during prior to the term end of this Agreementthe Change-in-Control Protective Period, in addition to any payments and benefits to which the Employee is entitled under Sections 5, 6, 7 and 8.1 hereof, unless such termination is (i) by the Company Employer for Cause, (ii) by reason of death or Disability Disability, or (iii) by the Executive Employee without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation . For purposes of the Release and Waiver by the Executivethis Agreement, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The ExecutiveEmployee’s employment shall be deemed to have been terminated by the Employer without Cause following a Change in Control by the Company without Cause or by the Executive Employee with Good Reason following a Change in Control, as the case may be, if (I) the ExecutiveEmployee’s employment is terminated without Cause prior to a Change in Control without Cause and such termination was at the request or direction of a Person who has entered into an agreement with the Company Employer the consummation of which will would constitute a Change in Control or if Control, (II) the Executive Employee terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if and the circumstance or event Exhibit 10.3 which constitutes Good Reason occurs at the request or direction of such Person, or (III) the Employee’s employment is terminated by the Employer without Cause prior to a Change in Control (but following a Potential Change in Control) and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. For purposes of any determination regarding the applicability of the immediately preceding sentence, any position taken by the Employee shall be presumed to be correct unless the Employer establishes to the Committee by clear and convincing evidence that such position is not correct.
(A) In lieu of any further salary payments to the Executive Employee for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the ExecutiveEmployee, the Company Employer shall pay to the Executive Employee a lump sum severance payment, in cash, equal to two (2) times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded the greater of the Employee’s Base Salary in effect immediately prior to the Executive for a completed year occurrence of the event or other measuring period preceding circumstance upon which the Date Notice of Termination under any such Bonus Plan but has not yet been paid (pursuant is based or the Employee’s Base Salary in effect immediately prior to Section 5.2 hereof or otherwise)the Change in Control, and (ii) a pro rata portion to the Date greater of Termination (x) the annual Bonus earned by the Employee in respect of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the Employer’s fiscal year (or any portion thereof) immediately preceding that in which the Date of Termination occurs, treating any (y) the average annual Bonus so earned in respect of the three fiscal years immediately preceding that in which the Change in Control occurs, or (z) $322,000. Of the foregoing payments, one-half of such payments shall be in consideration of and all performance goals allocated to Employee’s obligations under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof)Section 13.2.
(CB) For a twenty-four (24) month period 18 months after the Employee’s Date of Termination, the Company shall arrange to provide will maintain in full force and effect, for the Executive with Employee’s continued benefit (and that of all family members and other dependents who were enrolled in the programs on the Employee’s Date of Termination) all life, disabilitymedical and dental insurance programs in which the Employee (and members of the Employee’s family or other dependents) were participating or by which such individuals were covered immediately before the Employee’s Date of Termination. If the terms of any of such programs do not allow the continued participation described in the preceding sentence, accident and health insurance the Company will: (i) provide benefits that are substantially similar (including eligibility conditions, conditions on benefits, the value of benefits and the scope of coverage) to those provided by the life, disability, accident medical and health dental insurance benefits programs in which the Executive is receiving Employee, members of the Employee’s family and dependents were participating immediately prior to before the Notice Employee’s Date of Termination Termination; and (without giving effect to ii) ensure that any reduction eligibility or other conditions on benefits under these programs, including deductibles and co-payments, will be administered by applying the Employee’s experience under any predecessor program in such benefits subsequent to a Change in Control which reduction constitutes Good Reason)the Employee (and members of the Employee’s family and dependents) were participating before Termination. Benefits otherwise receivable by the Executive pursuant With respect to this Section 6.1(C) 10.1(B), any benefits or payments relating to medical and dental insurance that are provided after completion of the applicable continuation period permitted under the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended, and any benefits or payments relating to life insurance shall be reduced subject to the extent comparable following: (A) the amount of expenses eligible for reimbursement or the benefits are actually received by or made available payments provided under this Section 10.1(B) during any taxable year of the Employee may not affect the expenses eligible for reimbursement or the benefits or payments to be provided to the Executive without cost during Employee in any other taxable year; (B) the twenty-four (24) month period following the Executive’s termination reimbursement of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall an eligible expense must be made on or before the earlier last day of the Employee’s taxable year following the taxable year in which the expense was incurred; and (i) six (6) months after the Date of Termination or (iiC) the death of right to reimbursement or to such benefits or payments is not subject to Exhibit 10.3 liquidation or exchange for another benefit. To the Executive.
6.3 If the Executive’s employment is terminated following a Change extent that any benefit extended under this Section 10.1(B) would result in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive taxable compensation for the purchase of shares of Common Stock of J. ▇▇▇▇ Employee, the Employee shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options be solely responsible for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Persontaxes.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Severance Payments. 6.1 If the Executive’s employment is terminated following a Change in Control (a) Effective as of January 1, 2002, but subject to Sections 4(b) and during the term 4(c) of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that shall waive his right to payment on a current basis of any compensation or benefits under the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such PersonEmployment Agreement.
(Ab) In lieu of any further salary payments Immediately after the Effective Time and subject to the Executive for periods subsequent to the Date of Termination and Section 7(d) hereof, except as provided in lieu of any severance benefit otherwise payable to the ExecutiveSection 2(c) hereof, the Company shall pay to the Executive a cash lump sum severance payment, in cash, payment equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to all amounts owing the Executive under the Employment Agreement from January 1, 2002 through December 31, 2003; provided that, (ori) the portion of such amount attributable to payments under the Employment Agreement with respect to periods after the Termination Date and through December 31, if 2003 shall be discounted to present value at an annual discount rate of 7% and (ii) the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one portion of its Subsidiaries) such amount attributable to payments with respect to the year period beginning on January 1, 2002 and ending on the Termination Date shall be increased by interest at an annual rate of 7% (such payment, the "Severance Payment"). After receiving the Severance Payment, the Executive will not thereafter be entitled to any additional wages, compensation or benefits from the Company or any of its subsidiaries or affiliates pursuant to or in which connection with the Date of Termination occursEmployment Agreement.
(Bc) Notwithstanding If the Merger is not consummated for any provision reason, (i) the Company shall not pay the Severance Payment to the Executive, (ii) the Executive's waiver of any Bonus Planthe current payment of compensation and benefits pursuant to Section 4(a) shall lapse and the terms and conditions of the Employment Agreement shall again become effective with respect to the Executive from and after such time, (iii) the Company shall pay to the Executive a lump sum amount, in cash, cash amount equal to the sum of (i) any incentive all compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable foregone by the Executive pursuant to Section 4(a) hereof, increased by interest at an annual rate of 7% and (iv) the terms and provisions of this Section 6.1(CAgreement shall become null and void and of no further force or effect.
(d) This Agreement shall supersede the Employment Agreement and the Employment Agreement shall be reduced terminated from and after the date of the Termination Date, without any remaining obligation of any party under such agreements, except to the extent comparable benefits are actually received by or made available otherwise specifically referred to the Executive in this Agreement, including without cost during the twenty-four (24limitation Sections 4(c) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term 5 of this Agreement, unless such termination is .
(ie) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation that payment of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation amounts set forth in this Section 4 is conditioned upon his satisfaction of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes terms of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposedAgreement.
Appears in 1 contract
Sources: Termination and Release Agreement (Gotham Golf Corp)
Severance Payments. 6.1 If Subject to Section 6.2 hereof, the Company shall pay the Executive the payments described in this Section 6.1 (the "Severance Payments") upon the termination of the Executive’s 's employment is terminated following a Change in Control and during the term of this Agreement, in addition to any payments and benefits to which the Executive is entitled under Section 5 hereof, unless such termination is (i) by the Company for Cause, (ii) by reason of the Executive's death or Disability Disability, or (iii) by the Executive without Good Reason. For purposes of this Agreement, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s 's employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.Cause
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two (2) times the sum of (i) the greater of the Executive’s 's annual base salary as approved by in effect immediately prior to the Compensation Committee occurrence of the Board to be paid to event or circumstance upon which the Executive (or, if Notice of Termination is based or the Executive’s 's annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect in effect immediately prior to the year Change in Control, and (ii) the greater of the average of the annual bonuses earned or received by the Executive from the Company or its subsidiaries in respect of the two (2) consecutive fiscal years immediately preceding that in which the Date of Termination occurs or the average of the annual bonuses so earned or received in respect of the two (2) consecutive fiscal years immediately preceding that in which the Change in Control occurs.
(B) Notwithstanding any provision of any Bonus Planannual or long-term incentive plan to the contrary, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed fiscal year or other measuring period preceding the Date of Termination under any such Bonus Plan plan but which, as of the Date of Termination, is contingent only upon the continued employment of the Executive to a subsequent date or otherwise has not yet been paid (pursuant to Section 5.2 hereof or otherwise)paid, and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable aggregate value of all contingent incentive compensation awards to the Executive for all then uncompleted periods under all Bonus Plans any such plan, calculated as to each such award by multiplying the award that the Executive would have earned on the last day of the performance award period, assuming the achievement, at the target level, of the individual and corporate performance goals established with respect to such award, by the year (or fraction obtained by dividing the number of full months and any fractional portion thereof) in which of a month during such performance award period through the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the total number of days months contained in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof)performance award period.
(C) Notwithstanding any provision of the Company's supplemental pension and thrift plans (the "Supplemental Plans") to the contrary, upon the termination of the Executive's employment by the Executive for Good Reason or by the Company, in either case at any time following the occurrence of a Change in Control and during the term of this Agreement, the Executive shall be deemed to have an additional twenty-four (24) months of benefit credit under each of the Supplemental Plans and shall be entitled to receive such additional credit either (1) as part of the benefit otherwise payable under the Supplemental Plan or (2) as a lump sum.
(D) For a the twenty-four (24) month period after immediately following the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits those which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by giving
(E) If the Executive pursuant would have become entitled to this Section 6.1(C) shall be reduced to benefits under the extent comparable benefits are actually received by Company's post-retirement health care or made available to life insurance plans had the Executive without cost Executive's employment terminated at any time during the period of twenty-four (24) month period following months after the Executive’s termination Date of employment Termination, the Company shall provide such post-retirement health care or life insurance benefits to the Executive commencing on the later of (i) the date that such coverage would have first become available and (ii) the date that like benefits described in subsection (D) of this Section 6.1 terminate.
(F) From and after the occurrence of Change in Control and notwithstanding any such benefits actually received provision in the Company's 1995 Stock Option and Retention Stock Plan (or any agreement entered into thereunder or any successor stock compensation plan or agreement thereunder) to the contrary, any Option held by the Executive shall be reported fully exercisable and any restriction on any Retention Share held by the Executive shall lapse or be deemed fully satisfied, as applicable.
(A) Whether or not the Executive becomes entitled to the Company Severance Payments, if any payment or benefit received or to be received by the Executive in connection with a Change in Control or the termination of the Executive's employment (whether pursuant to
(B) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, unless in the opinion of tax counsel (the "Tax Counsel") reasonably acceptable to the Executive and selected by the accounting firm (the "Auditor") which was, immediately prior to the Change in Control, the Company's independent auditor, such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or part) represent reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of section 280G(d)(3) and (4) of the Code. Prior to the payment
(C) In the event that (i) amounts are paid to the Executive pursuant to subsection (A) of this Section 6.2, and (ii) the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment to the Executive in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess and such portion) at the time that the amount of such excess is finally determined.
6.2 6.3 The payments provided for in subsections (A), (B) and, if applicable, (C) of Section 6.1 (other than hereof and Section 6.1(C)) 6.2 hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) Termination; provided, however, that if the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion amounts of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executivepayments, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason or, if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (includingapplicable, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined)Tax, cannot be finally determined on or before such day, the Company shall pay to the Executive additional amounts (on such day an estimate, as determined in good faith by the “Gross Executive or, in the case of Gross-Up Amounts”) such that Payments under Section 6.2 hereof, in accordance with Section 6.2 hereof, of the total minimum amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments such payments to which the Executive would have been is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth
6.4 The Company also shall pay to the Executive all legal fees and expenses incurred by the Executive in disputing in good faith any issue relating to the termination of the Executive's employment following a Change in Control (including a termination of employment following a Potential Change in Control if the Excise Tax had not been imposed. For purposes Executive alleges in good faith that such termination will be deemed to have occurred following a Change in Control pursuant to the second sentence of Section 6.1 hereof) or in seeking in good faith to obtain or enforce any benefit or right provided by this Section 6.4, Agreement or in connection with any tax audit or proceeding to the term “Excise Tax” shall mean extent attributable to the tax imposed by Section application of section 4999 of the Code to any payment or benefit provided hereunder. Such payments shall be made as such fees and any similar tax that expenses are incurred by the Executive, but in no event later than five (5) business days after delivery of the Executive's written requests for payment accompanied with such evidence of fees and expenses incurred as the Company reasonably may hereafter be imposedrequire.
Appears in 1 contract
Sources: Executive Employment Agreement (Union Pacific Resources Group Inc)
Severance Payments. 6.1 If In the Executive’s employment is terminated following event of a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period Termination described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive6 above, the Company Employee shall pay the Executive the payments described in this Section 6.1 be entitled to receive (the “Severance Payments”) in addition to the payments Employee’s unpaid salary, accrued vacation pay and benefits described unreimbursed business expenses through and including the date of Termination) whichever of the following, A. or B., that the Employee shall select (which selection shall be by written notice from the Employee to the Employer, and in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment the event the Employee fails to so select, the Employee shall be deemed to have been terminated following selected B.):
A. For a Change period of twelve (12) consecutive calendar months after the Employee’s Termination, he will not, without the Employer’s written consent, either directly or indirectly engage in, make any investment in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change have any interest in Control without Cause at the direction of a Person who has entered into an agreement any business in competition with the Company Employer’s business that is located or conducting business in any county in which the consummation Employer conducted business on the date of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) Termination. In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executiveconsideration thereof, the Company Employee shall pay be entitled to the Executive receive a lump sum severance payment, payment in cash, cash no later than thirty (30) business days after the date of Termination equal to two the sum of:
i. an amount equal to one (1) times (a) the ExecutiveEmployee’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving effect immediately prior to the Notice date of Termination, plus (b) the cash value of all other compensation (determined by the full amount or face value of the compensation award without reduction due to any restrictions, vesting periods or possible unasserted future clawbacks that may apply to the compensation), other the annual base salary, awarded to the Employee during the year immediately preceding the date of Termination; and
ii. an amount equal to eighteen (18) multiplied by the amount of the monthly COBRA premium for family coverage in effect under the Employer’s group health plan on the date of Termination (without giving effect to any reduction in such benefits subsequent to provided, however, if upon the issuance of future regulatory or other guidance, the foregoing formula would constitute or create a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration discriminatory insured plan of the seven-day revocation period described Employer in Section 6.6 without revocation violation of Sections 2716(a) and 2716(b) of the Release and Waiver Public Health Service Act (as added by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6Section 1001(5) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control Patient Protection and during the term of this AgreementAffordable Care Act, unless such termination is as amended by Section 10101(d) thereof) (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control PaymentDiscriminatory Insured Plan”) is subject to the Excise Tax (as hereinafter defined), the Company Employer and the Employee agree to amend such formula in a manner that shall pay provide substantially the same economic benefit to the Executive additional amounts (the “Gross Up Amounts”) such Employee but shall not be a Discriminatory Insured Plan. The parties recognize that the total Employer will have no adequate remedy at law for breach by the Employee of the restrictions imposed by this Section 7A. and that the Employer could suffer substantial and irreparable damage if he breaches any of these restrictions. For this reason, the Employee agrees that, if the Employee breaches any of the restrictions imposed under this Section 7A, the Employer may seek a temporary and/or permanent injunction to restrain any breach or threatened breach of these restrictions or a decree of specific performance, mandamus, or other appropriate remedy to enforce compliance with the restrictions imposed under this Section 7A.
B. The amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposedOne Dollar ($1.00).
Appears in 1 contract
Sources: Change in Control Agreement (Civista Bancshares, Inc.)
Severance Payments. 6.1 If Subject to Section 6.2 hereof, the Company shall pay the Executive the payments described in this Section 6.1 (the "Severance Payments") upon the termination of the Executive’s 's employment is terminated following a Change in Control and during the term of this Agreement, in addition to any payments and benefits to which the Executive is entitled under Section 5 hereof, unless such termination is (i) by the Company for Cause, (ii) by reason of the Executive's death or Disability Disability, or (iii) by the Executive without Good Reason. For purposes of this Agreement, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s 's employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.Cause
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two three (3) times the sum of (i) the greater of the Executive’s 's annual base salary as approved by in effect immediately prior to the Compensation Committee occurrence of the Board to be paid to event or circumstance upon which the Executive (or, if Notice of Termination is based or the Executive’s 's annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect in effect immediately prior to the year Change in Control, and (ii) the greater of the average of the annual bonuses earned or received by the Executive from the Company or its subsidiaries in respect of the two (2) consecutive fiscal years immediately preceding that in which the Date of Termination occurs or the average of the annual bonuses so earned or received in respect of the two (2) consecutive fiscal years immediately preceding that in which the Change in Control occurs.
(B) Notwithstanding any provision of any Bonus Planannual or long-term incentive plan to the contrary, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed fiscal year or other measuring period preceding the Date of Termination under any such Bonus Plan plan but which, as of the Date of Termination, is contingent only upon the continued employment of the Executive to a subsequent date or otherwise has not yet been paid (pursuant to Section 5.2 hereof or otherwise)paid, and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable aggregate value of all contingent incentive compensation awards to the Executive for all then uncompleted periods under all Bonus Plans any such plan, calculated as to each such award by multiplying the award that the Executive would have earned on the last day of the performance award period, assuming the achievement, at the target level, of the individual and corporate performance goals established with respect to such award, by the year (or fraction obtained by dividing the number of full months and any fractional portion thereof) in which of a month during such performance award period through the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the total number of days months contained in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof)performance award period.
(C) Notwithstanding any provision of the Company's supplemental pension and thrift plans (the "Supplemental Plans") to the contrary, upon the termination of the Executive's employment by the Executive for Good Reason or by the Company, in either case at any time following the occurrence of a Change in Control and during the term of this Agreement, the Executive shall be deemed to have an additional thirty-six (36) months of benefit credit under each of the Supplemental Plans and shall be entitled to receive such additional credit either (1) as part of the benefit otherwise payable under the Supplemental Plan or (2) as a lump sum.
(D) For a twentythe thirty-four six (2436) month period after immediately following the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits those which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any
(E) If the Executive would have become entitled to benefits under the Company's post-retirement health care or life insurance plans had the Executive's employment terminated at any reduction time during the period of thirty-six (36) months after the Date of Termination, the Company shall provide such post-retirement health care or life insurance benefits to the Executive commencing on the later of (i) the date that such coverage would have first become available and (ii) the date that like benefits described in such benefits subsequent to a subsection (D) of this Section 6.1 terminate.
(F) From and after the occurrence of Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by and notwithstanding any provision in the Executive pursuant to this Section 6.1(CCompany's 1995 Stock Option and Retention Stock Plan (or any agreement entered into thereunder or any successor stock compensation plan or agreement thereunder) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and contrary, any such benefits actually received Option held by the Executive shall be reported fully exercisable and any restriction on any Retention Share held by the Executive shall lapse or be deemed fully satisfied, as applicable.
(A) Whether or not the Executive becomes entitled to the Company Severance Payments, if any payment or benefit received or to be received by the Executive in connection with a Change in Control or the termination of the Executive's employment (whether pursuant to
(B) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, unless in the opinion of tax counsel (the "Tax Counsel") reasonably acceptable to the Executive and selected by the accounting firm (the "Auditor") which was, immediately prior to the Change in Control, the Company's independent auditor, such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or part) represent reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of section 280G(d)(3) and (4) of the Code. Prior to the payment
(C) In the event that (i) amounts are paid to the Executive pursuant to subsection (A) of this Section 6.2, and (ii) the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment to the Executive in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess and such portion) at the time that the amount of such excess is finally determined.
6.2 6.3 The payments provided for in subsections (A), (B) and, if applicable, (C) of Section 6.1 (other than hereof and Section 6.1(C)) 6.2 hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) Termination; provided, however, that if the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion amounts of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executivepayments, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason or, if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (includingapplicable, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined)Tax, cannot be finally determined on or before such day, the Company shall pay to the Executive additional amounts (on such day an estimate, as determined in good faith by the “Gross Executive or, in the case of Gross-Up Amounts”) such that Payments under Section 6.2 hereof, in accordance with Section 6.2 hereof, of the total minimum amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments such payments to which the Executive would have been is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth
6.4 The Company also shall pay to the Executive all legal fees and expenses incurred by the Executive in disputing in good faith any issue relating to the termination of the Executive's employment following a Change in Control (including a termination of employment following a Potential Change in Control if the Excise Tax had not been imposed. For purposes Executive alleges in good faith that such termination will be deemed to have occurred following a Change in Control pursuant to the second sentence of Section 6.1 hereof) or in seeking in good faith to obtain or enforce any benefit or right provided by this Section 6.4, Agreement or in connection with any tax audit or proceeding to the term “Excise Tax” shall mean extent attributable to the tax imposed by Section application of section 4999 of the Code to any payment or benefit provided hereunder. Such payments shall be made as such fees and any similar tax that expenses are incurred by the Executive, but in no event later than five (5) business days after delivery of the Executive's written requests for payment accompanied with such evidence of fees and expenses incurred as the Company reasonably may hereafter be imposedrequire.
Appears in 1 contract
Sources: Executive Employment Agreement (Union Pacific Resources Group Inc)
Severance Payments. 6.1 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (ia) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the ExecutiveAs severance, the Company shall pay Executive an amount equal to the amount of salary that it would have paid to Executive had Executive remained an employee of the Company through December 14, 2013. Such amount shall be paid in the increments and at the times that such salary would have been paid and shall assume that Executive’s current rate of salary would have continued through December 14, 2013. Notwithstanding the foregoing, if, before December 14, 2013, Executive obtains other full or part-time employment or engagement as a consultant, advisor or independent contractor, the Company shall only be obligated to pay Executive an amount equal to the excess, if any, of (i) the amount that it would have otherwise paid to Executive pursuant to this Paragraph 2(a), less (ii) the gross amount of compensation that Executive earns through such employment or engagement. Executive shall be required to notify the Company promptly upon obtaining such employment or engagement, and failure to do so shall constitute a breach of this agreement and shall entitle the Company to cease any and all payments hereunder and to recoup any payments previously made after the date on which Executive obtained such employment or engagement. Such amount shall be paid in equal installments at the times that Executive’s Company salary would have been paid and only if Executive furnishes the Company with evidence reasonably satisfactory to the Company of the compensation associated with such employment or engagement. All payments pursuant to this Paragraph 2 shall be subject to applicable tax and other withholdings. Notwithstanding any other provision of this Paragraph 2, no amounts shall be paid prior to the end of the revocation period described in Paragraph 15 below, and any amounts that would otherwise have been paid prior to the end of such revocation period shall be paid as soon as practicable after the end of such revocation period. Executive agrees that the payments described in this Section 6.1 (Paragraph 2(a) satisfy the “Severance Payments”) in addition Company’s obligations to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed pay severance or other compensation to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, including the Company shall pay to obligations set forth in the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by Unanimous Written Consent of the Compensation Committee of the Board to be paid to the Executive (orEZCORP dated March 10, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise)2011, and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith acknowledges that such payments are required to be delayed constitute adequate and sufficient consideration for a period of six (6) months the release described in order to satisfy Paragraph 5, as well as the requirements of Internal Revenue Code §409A(a)(2)(B)(i), other covenants and agreements made by Executive in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement. Executive also acknowledges that, unless such termination except as expressly set forth in this Agreement or in the Company’s stock or benefit plans, Executive is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not entitled to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with receive from the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (includingdistribution of any amounts of pay, without limitationbonus, any payment made pursuant to any long-term incentive plansbenefits, cash, stock, stock option options or equity participation right plans) or termination other type of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposedproperty.
Appears in 1 contract
Sources: Separation Agreement (Ezcorp Inc)
Severance Payments. 6.1 If Subject to Section 6.2 and Section 12(B) hereof, if the Executive’s employment is terminated Executive has a Separation from Service following a Change in Control and during the term Term, and such Separation from Service is an involuntary Separation from Service (within the meaning of this Agreement, unless such termination is (iTreasury Regulation section 1.409A- 1(n)(1)) by the Company other than for CauseCause or Disability, (ii) by reason of death or Disability or (iii) is a Separation from Service by the Executive without for Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, then the Company shall pay the Executive the payments amounts, and provide the Executive the benefits, described in this Section 6.1 (the “Severance Payments”) ), in addition to the any payments and benefits described to which the Executive is entitled under Section 5 hereof. Notwithstanding the foregoing, the Executive shall not be eligible to receive any payment or benefit provided for in Sections 5.1 this Section 6.1 unless the Executive shall have executed and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed delivered to have been terminated following a Change in Control by the Company without Cause within 45 days after the Separation from Service a release (substantially in the form of Exhibit A hereto) in favor of the Company and others set forth on said Exhibit A, relating to all claims or by the Executive with Good Reason if liabilities of any kind relating to the Executive’s employment is terminated prior to a Change in Control without Cause at the direction and termination of a Person who has entered into an agreement employment with the Company the consummation of which will constitute a Change in Control or if Company, and the Executive terminates his employment with Good Reason prior shall not have revoked such release within 7 days after executing it. Subject to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying Section 12(B) hereof, any payments and benefits that, but for the definition of Good Reason) if the circumstance preceding sentence, may be paid or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments provided pursuant to the Executive for periods subsequent provisions below of this Section 6.1 before the 56th day following the Separation from Service shall be paid or provided on the 56th day following the Separation from Service, unless such payment or benefit may be paid or provided pursuant to the Date provisions below of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month 6.1 within a designated period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other Separation from Service that ends more than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day 56 days following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i)Separation from Service, in which case the Company shall so advise the Executive, and such payments payment or benefit shall be made on the earlier of (i) six (6) months after the Date of Termination paid or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise provided within the portion of such stock options for which vesting has been accelerated until designated period that begins on the seven56th day following the Separation from Service and ends on the last day of such designated period, provided in each case that the Executive executed the release and delivered it to the Company within the aforementioned 45-day revocation period described in Section 6.6 has expired without revocation of and did not revoke the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Personrelease within 7 days after executing it.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Severance Payments. 6.1 If Subject to Section 10.2 hereof, the Executive’s Employer shall pay the Employee the payments described in this Section 10.1 (the "Severance Payments") upon the termination of the Employee's employment is terminated following a Change in Control and during prior to the term end of this Agreementthe Change-in-Control Protective Period, in addition to any payments and benefits to which the Employee is entitled under Sections 5, 6, 7 and 8.1 hereof, unless such termination is (i) by the Company Employer for Cause, (ii) by reason of death or Disability Disability, or (iii) by the Executive Employee without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation . For purposes of the Release and Waiver by the Executivethis Agreement, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s Employee's employment shall be deemed to have been terminated by the Employer without Cause following a Change in Control by the Company without Cause or by the Executive Employee with Good Reason following a Change in Control, as the case may be, if (i) the Executive’s Employee's employment is terminated without Cause prior to a Change in Control without Cause and such termination was at the request or direction of a Person who has entered into an agreement with the Company Employer the consummation of which will would constitute a Change in Control or if Control, (ii) the Executive Employee terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying and the definition of Good Reason) if the circumstance circum- stance or event which constitutes Good Reason occurs at the request or direction of such Person, or (iii) the Employee's employment is terminated by the Employer without Cause prior to a Change in Control (but following a Potential Change in Control) and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. For purposes of any determination regarding the applica bility of the immediately preceding sentence, any position taken by the Employee shall be presumed to be correct unless the Employer establishes to the Committee by clear and convincing evidence that such position is not correct.
(A) In lieu of any further salary payments to the Executive Employee for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the ExecutiveEmployee, the Company Employer shall pay to the Executive Employee a lump sum severance payment, in cash, equal to two three (3) times the Executive’s sum of (i) the higher of the Em ployee's Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or the Employee's Base Salary in effect immediately prior to the Change in Control, and (ii) the higher of the annual base salary as approved bonus earned by the Compensation Committee Employee in respect of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the Employer's fiscal year immediately preceding that in which the Date of Termination Termina tion occurs or the average annual bonus so earned in respect of the three fiscal years immediately preceding that in which the Change in Control occurs.
(B) Notwithstanding any provision of any Bonus Planannual incentive plan to the contrary, the Company Employer shall pay to the Executive Employee a lump sum amount, in cash, equal to the sum of (i) any annual incentive compensation which has been allocated or awarded to the Executive Employee for a completed fiscal year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant and which, as of the Date of Termination, is contingent only upon the continued employment of the Employee to Section 5.2 hereof or otherwise)a subsequent date, and (ii) a pro rata portion to the Date of Termination of a deemed annual bonus for the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the Employer's fiscal year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum (i) the higher of the annual bonus amount earned by a fraction, the numerator Employee with respect to the immediately preceding fiscal year or the average annual bonus earned by the Employee with respect to the immediately preceding three fiscal years of which is the Employer by (ii) the fraction obtained by dividing the number of days in such the fiscal year (or portion thereof) of the Employer in which elapsed termination occurs up to and including the Date of Termination and the denominator of which is the number of days in such year (or portion thereof)by 365.
(C) For a twentythe thirty-four six (2436) month period after immediately following the Date of Termination, the Company Employer shall arrange to provide the Executive Employee with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits those which the Executive Employee is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in amendment to such benefits made subsequent to a Change in Control Control, which reduction constitutes Good Reasonamendment adversely affects in any manner the Employee's entitlement to or the amount of such benefits); PROVIDED, HOWEVER, that, unless the Employee consents to a different method (after taking into account the effect of such method on the calculation of "parachute payments" pursuant to Section 10.2 hereof), such health insurance benefits shall be provided through a third-party insurer. Benefits otherwise other wise receivable by the Executive Employee pursuant to this Section 6.1(C10.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive Employee without cost during the twentythirty-four six (2436) month period following fol lowing the Executive’s Employee's termination of employment (and any such benefits actually received by or made available to the Executive Employee shall be reported to the Company Employer by the ExecutiveEmployee).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof . If the Severance Payments shall be made not later than decreased pursuant to Section 10.2 hereof, and the fifth (5thSection 10.1(C) day following benefits which remain payable after the expiration application of Section 10.2 hereof are thereafter reduced pursuant to the immediately preceding sentence because of the seven-day revocation period described in Section 6.6 without revocation receipt or availability of comparable benefits, the Employer shall, at the time of such reduction, pay to the Employee the least of (a) the amount of the Release and Waiver by decrease made in the ExecutiveSever ance Payments pursuant to Section 10.2 hereof, unless (b) the Company determines amount of the subsequent reduction in good faith that such payments are required to be delayed for a period of six (6these Section 10.1(C) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i)benefits, in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (iic) the death of maximum amount which can be paid to the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this AgreementEmployee without being, unless such termination is (i) by the Company for Causeor causing any other payment to be, (ii) nondeductible by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation section 280G of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such PersonCode.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Severance Payments. 6.1 If Subject to Section 6.2 hereof, if (i) the Executive’s employment 's employment is terminated following a Change in Control and during the term of this AgreementTerm, unless such termination is other than (iA) by the Company for Cause, (iiB) by reason of death or Disability Disability, or (iiiC) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, then the Company shall pay the Executive the payments amounts, and provide the Executive the benefits, described in this Section 6.1 (the “"Severance Payments”) "), in addition to the any payments and benefits described in Sections 5.1 and 5.2 hereof (but not to which the Executive is entitled under Section 5.3 5 hereof). The For purposes of this Agreement, the Executive’s 's employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason Reason, if (i) the Executive’s 's employment is terminated by the Company without Cause prior to a Change in Control without Cause (but only if a Change in Control occurs no later than six (6) months following the Executive’s termination of employment) and such termination was at the request or direction of a Person who has entered into an agreement with the Company the consummation of which will would constitute a Change in Control or if Control, (ii) the Executive terminates his employment with for Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as but only if a Change in Control in applying occurs no later than six (6) months following the definition Executive’s termination of Good Reasonemployment) if and the circumstance or event which constitutes Good Reason occurs at the request or direction of such Person, or (iii) the Executive's employment is terminated by the Company without Cause or by the Executive for Good Reason and such termination or the circumstance or event which constitutes Good Reason is otherwise in connection with or in anticipation of a Change in Control (but only if a Change in Control occurs no later than six (6) months following the Executive’s termination of employment).
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two «multiple» times the sum of (i) the Executive’s annual 's base salary as approved by the Compensation Committee of the Board in effect immediately prior to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occursor, if higher, in effect immediately prior to the first occurrence of an event or circumstance constituting Good Reason, and (ii) the Executive’s target annual bonus under any annual bonus or incentive plan maintained by the Company in respect of the fiscal year in which occurs the Date of Termination or, if higher, the fiscal year in which occurs the first event or circumstance constituting Good Reason.
(B) For the «benefits» month period immediately following the Date of Termination, the Company shall arrange to provide the Executive and his dependents life, disability, accident and health insurance benefits substantially similar to those provided to the Executive and his dependents immediately prior to the Date of Termination or, if more favorable to the Executive, those provided to the Executive and his dependents immediately prior to the first occurrence of an event or circumstance constituting Good Reason, at no greater after-tax cost to the Executive than the after-tax cost to the Executive immediately prior to such date or occurrence. Benefits otherwise receivable by the Executive pursuant to this Section 6.1(B) shall be reduced to the extent benefits of the same type are received by or made available to the Executive during the «benefits» month period following the Executive's termination of employment (and any such benefits received by or made available to the Executive shall be reported to the Company by the Executive); provided, however, that the Company shall reimburse the Executive for the excess, if any, of the after tax cost of such benefits to the Executive over such cost immediately prior to the Date of Termination or, if more favorable to the Executive, the first occurrence of an event or circumstance constituting Good Reason.
(C) Notwithstanding any provision of any Bonus Planannual incentive plan to the contrary, the Company shall pay to the Executive a lump sum an amount, in cash, equal to the sum of (i) any unpaid incentive compensation which has been allocated or awarded to the Executive for a completed fiscal year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant plan and which, as of the Date of Termination, is contingent only upon the continued employment of the Executive to Section 5.2 hereof or otherwise)a subsequent date, and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to Amount the Executive under all Bonus Plans would have earned with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying the award that the Executive would have earned for such maximum bonus amount year, based upon the actual level of achievement of the performance goals established with respect to such award, by a fraction, the numerator of which is fraction obtained by dividing the number of days in full months and any fractional portion of a month during such year (or portion thereof) which elapsed to through the Date of Termination by twelve (12).
6.2 (A) Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the termination of the Executive's employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the Severance Payments, being hereinafter referred to as the "Total Payments") would be subject (in whole or part), to the Excise Tax, then, after taking into account any reduction in the Total Payments provided by reason of section 280G of the Code in such other plan, arrangement or agreement, the portion of the Total Payments that does not constitute deferred compensation within the meaning of section 409A of the Code shall first be reduced and the denominator portion of the Total Payments that does constitute deferred compensation within the meaning of section 409A of the Code shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (A) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (B) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments).
(B) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which is the number of days Executive shall have waived at such time and in such year manner as not to constitute a "payment" within the meaning of section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to the Executive, does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code (including by reason of section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the Base Amount allocable to such reasonable compensation, and (iii) the value of any non-cash benefit or portion thereof)any deferred payment or benefit included in the Total Payments shall be determined in accordance with the principles of sections 280G(d)(3) and (4) of the Code.
(C) For a twenty-four (24) month period after At the Date of Terminationtime that payments are made under this Agreement, the Company shall arrange to provide the Executive with lifea written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, disabilitywithout limitation, accident and health insurance benefits substantially similar to any opinions or other advice the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually Company has received by from Tax Counsel or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment other advisors or consultants (and any such benefits actually received by opinions or advice which are in writing shall be attached to the statement). If the Executive shall be reported objects to the Company's calculations, the Company by shall pay to the Executive)Executive such portion of the Severance Payments (up to 100% thereof) as the Executive determines is necessary to result in the proper application of subsection A of this Section 6.2.
6.2 The payments 6.3 Subject to the provisions of Section 15 hereof, the payment provided for in subsections (A) and (C) of Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration Date of Termination. Notwithstanding the seven-day revocation period described in Section 6.6 without revocation of above, to the Release and Waiver by extent the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of Executive is terminated (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term but prior to a change in ownership or effective control of this Agreement, unless such termination is (i) by the Company for Cause, or in the ownership of a substantial portion of the assets of the Company (within the meaning of section 409A of the Code) or (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at in a manner described in Section 6.1, to the direction extent required to avoid accelerated or additional tax under section 409A of a Person who has entered into an agreement the Code, amounts payable to the Executive hereunder, to the extent not in excess of the amount that the Executive would have received under any other pre-Change in Control severance plan or arrangement with the Company the consummation of which will constitute a Change in Control had such plan or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs arrangement been applicable, shall be paid at the direction of time and in the manner provided by such Person.
(i) If any payment plan or benefit made available arrangement and the remainder shall be paid to the Executive in connection accordance with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination the provisions of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the this Section 6.3.
6.4 The Company also shall pay to the Executive additional amounts (all legal fees and expenses incurred by the “Gross Up Amounts”) such that Executive in disputing in good faith any issue hereunder relating to the total amount of all Change in Control Payments net termination of the Excise Tax shall equal Executive's employment, in seeking in good faith to obtain or enforce any benefit or right provided by this Agreement or in connection with any tax audit or proceeding to the total amount extent attributable to the application of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section section 4999 of the Code to any payment or benefit provided hereunder. Such payments shall be made within five (5) business days after delivery of the Executive's written requests for payment accompanied with such evidence of fees and any similar tax expenses incurred as the Company reasonably may require; provided that may hereafter in no event will payment be imposedmade for requests that are submitted later than December 15th of the year following the year in which the expense is incurred.
Appears in 1 contract
Sources: Severance Agreement (Compuware Corp)
Severance Payments. 6.1 If (a) Upon any termination of the Executive’s employment by the Company without Cause or by the Executive for Good Reason, the Company shall pay as severance to the Executive an amount (the “Cash Severance Amount”) equal to the greater of (i) the sum of nine (9) months of the Executive’s Base Salary in effect immediately prior to the Date of Termination or (ii) the product of (x) one (1) month of the Executive’s Base Salary in effect immediately prior to the Date of Termination, multiplied by (y) the number of years that the Executive has been employed by the Company (such number, the “Employment Years”); provided that the aggregate Cash Severance Amount shall not exceed the sum of twelve (12) months of the Executive’s Base Salary in effect immediately prior to the Date of Termination. The Company shall pay the Cash Severance Amount over a number of months immediately following the Date of Termination equal to the Employment Years (the “Severance Period”), in equal installments as nearly as practicable, on the normal payroll dates for employees of the Company generally but in no event less frequently than monthly. Any amounts payable pursuant to this Section 6(a) shall not be paid until the first scheduled payment date following the date the release contemplated in Section 6(d) is terminated following a Change executed and no longer subject to revocation, with the first such payment being in Control and an amount equal to the total amount to which the Executive would otherwise have been entitled during the term period following the Date of this AgreementTermination if such deferral had not been required; provided, unless however, that any such amounts that constitute nonqualified deferred compensation within the meaning of Code Section 409A shall not be paid until the sixtieth (60th) day following such termination to the extent necessary to avoid adverse tax consequences under Code Section 409A, and, if such payments are required to be so deferred, the first payment shall be in an amount equal to the total amount to which the Executive would otherwise have been entitled during the period following the Date of Termination if such deferral had not been required; provided, further, that, if the Executive is a “specified employee” within the meaning of Code Section 409A, any amounts payable to the Executive under this Section 6(a) during the first six (6) months and one (1) day following the Date of Termination that constitute nonqualified deferred compensation within the meaning of Code Section 409A shall not be paid until the date that is six (6) months and one (1) day following such termination to the extent necessary to avoid adverse tax consequences under Code Section 409A, and, if such payments are required to be so deferred, the first payment shall be in an amount equal to the total amount to which the Executive would otherwise have been entitled to during the period following the Date of Termination if such deferral had not been required.
(b) In the event of any termination of the Executive’s employment (i) by the Company for Cause, or (ii) by reason of due to the Executive’s death or Disability or (iii) by Disability, the Executive without Good Reasonshall not be entitled to any severance or other payments or benefits as of the Date of Termination (except as required by applicable law) and all rights to receive a salary, and provided that benefits or other compensation shall termination as of the seven-day revocation period described Date of Termination except as set forth in Section 6.6 has expired without revocation 7.
(c) If the Executive breaches any provision of the Release and Waiver by the ExecutiveSections 8 through 11 hereof, the Company shall pay no longer be obligated to make any payments or reimbursements or provide any benefits pursuant to this Section 6.
(d) The Company’s obligations under this Section 6 shall be contingent upon (i) the delivery by the Executive of a complete release in favor of the Company, its subsidiaries, affiliates, and respective officers, directors, employees, principals, managers, partners, members, attorneys and representatives, in substantially the form attached hereto as Annex A, within twenty-one (21) days after the Date of Termination and (ii) the Executive not revoking such release.
(e) In the event that the Company fails to pay any of the amounts set forth in Section 6(a) within five (5) business days after the date when due, the overdue amounts shall accrue interest at a rate equal to five (5%) per year until such overdue amounts and interest are paid. If the Executive dies during the postponement period prior to the payment in full of amounts set forth in Section 6(a), the unpaid amounts shall be paid to the personal representative of the Executive's estate when due.
(f) The payments described provided in this Section 6.1 (the “Severance Payments”6(a) shall be in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for set forth in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive7 hereof.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Severance Payments. 6.1 If the Executive’s (a) Subject to paragraphs 4 and 9 hereof, if Employee's employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company or any Subsidiary is terminated during the consummation Term on account of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executivewithout Cause, the Company shall pay to the Executive Employee a lump sum severance payment, in cash, payment equal to two twelve (12) times the Executive’s annual Employee's monthly base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee leveltime of such termination. In addition, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect subject to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Planparagraphs 4 and 9 hereof, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding of twelve (12) months following the Date termination of Employee's employment on account of a Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to without Cause during the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of TerminationTerm, the Company shall arrange to provide Employee and Employee's dependents and beneficiaries, at the Executive Company's cost, with life, disability, accident and health insurance those welfare benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive Employee or any of his dependents or beneficiaries is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive entitled pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i)Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended, as in which case the Company shall so advise the Executive, and such payments shall be made effect on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term date of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4paragraph 3, Employee shall not be deemed to have ceased to be an employee of the Company and any Subsidiary by reason of the transfer of Employee's employment between the Company and any Subsidiary, or among any Subsidiaries.
(b) Without limiting the rights of Employee at law or in equity, if the Company fails to make any payment or provide any benefit required to be made or provided hereunder on a timely basis, the term “Excise Tax” shall mean Company will pay interest on the tax imposed by Section 4999 amount or value thereof at an annualized rate of interest equal to the Code and any similar tax that may hereafter be imposed.so-called composite "prime rate" as quoted from time to
Appears in 1 contract
Sources: Severance Agreement (Gliatech Inc)
Severance Payments. 6.1 If (a) Subsequent to the Executive’s employment is terminated following a Change in Control Termination Date, and during on the term of express condition that Employee has not revoked this Agreement, unless such termination is (i) by the Parent shall cause the Company for Cause, (ii) by reason of death or Disability or (iii) by to provide Employee with the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the severance payments described in this Section 6.1 (the “Severance Payments”) in addition to accordance with the schedule attached hereto as Annex I, due and payable within thirty (30) days following the Termination Date; provided however, that no payments and benefits described in Sections 5.1 and 5.2 hereof (but not under this Section 5.3 hereof). The Executive’s employment 2 shall be deemed to made until the Parent’s receipt of the stock certificates set forth on Annex II attached hereto. Such amounts when paid in full shall constitute complete and full payment of any and all amounts due under the Employment Agreement, including salary and bonus amounts that have been terminated following a Change in Control by the Company without Cause or earned by the Executive with Good Reason if but have not yet been paid as of the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such PersonTermination Date.
(Ab) In lieu The Company shall issue an IRS Form W-2 to Employee reflecting the Severance Payments made pursuant to this Section 2. For purposes of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executiveclarity, the Company shall withhold amounts for payment of taxes as required by local, state and federal law. Employee shall be solely responsible for payment of taxes as required by local, state and federal law. If a claim is made against the Company for any tax or withholding in connection with or arising out of the Severance Payments pursuant to Section 2, Employee shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved any such claim within thirty (30) days of being notified by the Compensation Committee of Company and agrees to indemnify the Board Company and hold it harmless against such claims, including but not limited to be paid to any taxes, attorneys’ fees, penalties or interest, which are or become due from the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occursCompany.
(Bc) Notwithstanding any provision of any Bonus Plan, the Company Parent shall pay to the Executive Employee a lump sum amount, in cash, equal amount equivalent to the sum cost of (i) any incentive compensation which has been allocated or awarded to maintaining continuous medical and dental coverage for the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed Employee for a period of six two (62) months in order to satisfy years from the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Termination Date of Termination or (ii) the death of the Executive.
6.3 If the Executiveunder Parent’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in fullcurrent medical plan . The Executive agrees not current payment for Employee under the Parent’s current medical plan is approximately $520 per month, for an aggregate amount of $12,480 (the “Medical Payments”). The Medical Payment shall due and payable within thirty (30) days following the Termination Date subject to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described conditions set forth in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason2(a) if the circumstance or event which constitutes Good Reason occurs at the direction of such Personabove.
(id) If any payment or benefit made available to Employee understands and agrees that he would not receive the Executive monies and/or benefits specified in connection with a Change in Control (includingthis Section 2, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination except for Employee’s execution of this Agreement and General Release and the fulfillment of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposedpromises contained herein.
Appears in 1 contract
Sources: Severance Agreement (Cellular Biomedicine Group, Inc.)
Severance Payments. 6.1 If a. Upon the occurrence of a Severance Event, and in consideration of and contingent upon the execution and delivery by Executive of a mutually agreeable general release of all claims and expiration of any applicable revocation period in connection therewith, Executive shall be entitled to a severance payment as follows:
(i) Subject to ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, an amount equal to Executive’s employment is terminated following then current Base Salary; and
(ii) In full substitution for Executive’s rights under the Company’s annual incentive bonus plan, a Change in Control substitute incentive award equal to the average amount of the annual incentive award earned and paid to the Executive with respect to the preceding three (3) fiscal years. Notwithstanding the foregoing, to the extent that Executive has not been employed by the Company for at least three (3) years, such substitute incentive award will be equal to the average amount of the annual incentive award earned and paid to the Executive for the fiscal years that have been completed during the term of his employment.
b. The severance payment shall be made in a lump sum within thirty (30) days after the effective date of the termination of employment.
c. If applicable, the severance amount provided for in Paragraph 3a(i) above will be offset by any income protection benefits payable to Executive during the first twelve months of a qualifying disability under the Company’s group short-term and long-term disability insurance plans.
d. Notwithstanding the foregoing to the contrary, in no event shall the amount due and payable hereunder constitute a “Parachute Payment” within the meaning of the Section 280G(b)(2) of the Code. In the event that any portion of the severance payment would be deemed a Parachute Payment, the amount of the severance payment shall be reduced only to the extent necessary to eliminate any such treatment or characterization.
e. It is the intent of the parties that payments under this Agreement comply with Section 409A of the Code, and, accordingly, to interpret, to the maximum extent permitted, this Agreement to be in compliance therewith. If the Executive notifies the Company in writing (with specificity as to the reason therefore) that the Executive believes that any provision of this Agreement (or of any payment of compensation under this Agreement) would cause the Executive to incur any additional tax or interest under Section 409A of the Code, unless and the Company concurs with such termination belief or the Company (without any obligation whatsoever to do so) independently makes such determination, the parties shall, in good faith, reform such provision to try to comply with Section 409A through good faith modifications to the minimum extent reasonably appropriate to conform with Section 409A. To the extent that any provision hereof is (i) modified by the Company for Causeparties to try to comply with Section 409Aof the Code, (ii) by reason of death or Disability or (iii) by such modification shall be made in good faith and shall, to the Executive without Good Reasonmaximum extent reasonably possible, and provided that maintain the seven-day revocation period described in Section 6.6 has expired without revocation original intent of the Release and Waiver by applicable provision without violating the Executiveprovisions of Section 409A. Notwithstanding the foregoing, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and assume any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive economic burden in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option compliance or equity participation right plans) or termination noncompliance with Section 409A of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposedCode.
Appears in 1 contract
Severance Payments. 6.1 If (a) Upon termination of the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is 's employment: (i) by the Company for Cause, cause; or (ii) by reason the voluntary termination of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation employment of the Release and Waiver by the Executive, the Company Executive shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition not be entitled to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or any severance payment other than compensation earned by the Executive with Good Reason if before the date of termination calculated pro rata up to and including the date of termination.
(b) If the Executive’s 's employment is terminated prior to a Change for any other reason other than the reasons set forth in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if subsection 9(a), the Executive terminates his employment with Good Reason prior shall be entitled to a Change in Control receive the lesser of:
(determined by treating a Potential Change in Control as a Change in Control in applying i) the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.total of:
(A) In lieu 2 months' salary at the then applicable base salary rate;
(B) the present value, as determined by the Chairman and/or the President, acting reasonably, of any further the benefits described in section 4(b) that would be enjoyed by the Executive during the next 3 months assuming his employment was not terminated and assuming the then current level of benefits were continued for those 3 months; and
(C) the present value, as determined by the Chairman and/or the President, acting reasonably, of the amount that the Chairman and/or the President estimates would be the amount payable to the Executive out of the Plan assuming that the Executive's employment was not terminated until the end of the current fiscal year and all other participants of the Plan continued in the employment of the Corporation for the full then current fiscal year; and
(ii) the salary payments otherwise payable to the Executive for periods subsequent to the Date unexpired term of Termination and this agreement together with the other amounts described in lieu clause 9(b)(i), mutatis mutandis. The payment described in this subsection 9(b) is the only severance payment the Executive will receive in the event of any severance benefit otherwise payable to the termination of this agreement for reasons contemplated in this subsection 9(b).
(c) If the Executive's employment is terminated as a result of the permanent disability or death of the Executive, the Company Executive or his estate, as applicable, shall pay be entitled to receive, within 30 days of the Executive a lump sum severance paymentdate of such termination, in cash, equal to two times the Executive’s annual balance of the base salary as approved by the Compensation Committee of the Board to that would otherwise be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination remainder of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by agreement. The Executive agrees to reasonably comply with all requirements necessary for the Company for Cause, (ii) by reason Corporation to obtain life insurance on the life of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposedagreement.
Appears in 1 contract
Severance Payments. 6.1 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed terminated due to have been terminated following a Change in Control death pursuant to Section 4(a)(i), due to Disability pursuant to Section 4(a)(ii), by the Company without Cause or pursuant to Section 4(a)(iv), by the Executive with Good Reason if the Executive’s employment is terminated prior resignation for Good Reason pursuant to a Change in Control without Cause at Section 4(a)(v), or due to the direction Company’s non-extension of a Person who has entered into an agreement with the Term pursuant to Section 4(a)(vii), the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable shall, subject to the Executive’s execution of a general waiver and release of claims agreement substantially in the form attached hereto as Exhibit D, and subject to Section 11, provide the Company shall pay to the Executive Executive:
(a) a lump sum cash severance payment, in cash, payment equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation the Executive’s Annual Base Salary, as in effect for the year in which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise)termination occurs, and (ii) a pro rata portion $2,000,000; provided, however, that such severance payment shall be in lieu of notice or any other severance benefits to which the Executive might otherwise be entitled. The cash severance payment shall be paid in equal installments, in accordance with the normal payroll practices of the Company, during the Severance Period;
(b) the Annual Bonus for the year in which such termination occurs (based on the Company’s performance in relation to the applicable performance targets, as determined in good faith by the Compensation Committee), multiplied by the Pro-Rate Factor (as applicable to the Executive’s employment with the Company) and paid at such time as the Executive’s Annual Bonus would otherwise have been paid; and
(c) continuation of the Executive’s coverage under the Company’s health and welfare benefit plans and programs in which the Executive was entitled to participate immediately prior to the Date of Termination, to the extent permitted under the terms of such plans and programs, until the earlier to occur of (i) the end of the Severance Period and (ii) the date on which the Executive receives comparable health and welfare benefits from any subsequent employer; provided that, to the extent that the Company is unable to continue such benefits because of underwriting on the applicable plan term, or if such continuation would violate Section 105(h) of the Code, the Company shall provide the Executive with an economically equivalent benefit or payment determined on an after-tax basis (to the extent health and welfare benefit plans and programs in which the Executive was entitled to participate immediately prior to the Date of Termination of the maximum bonus amount payable were non-taxable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Severance Payments. 6.1 If The Employer shall pay the ExecutiveEmployee the payments described in this Section 10.1 (the “Severance Payments”) upon the termination of the Employee’s employment is terminated following a Change in Control and during prior to the term end of this Agreementthe Change-in-Control Protective Period, in addition to any payments and benefits to which the Employee is entitled under Sections 5, 6, 7 and 8.1 hereof, unless such termination is (i) by the Company Employer for Cause, (ii) by reason of death or Disability Disability, or (iii) by the Executive Employee without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation . For purposes of the Release and Waiver by the Executivethis Agreement, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The ExecutiveEmployee’s employment shall be deemed to have been terminated by the Employer without Cause following a Change in Control by the Company without Cause or by the Executive Employee with Good Reason following a Change in Control, as the case may be, if (I) the ExecutiveEmployee’s employment is terminated without Cause prior to a Change in Control without Cause and such termination was at the request or direction of a Person who has entered into an agreement with the Company Employer the consummation of which will would constitute a Change in Control or if Control, (II) the Executive Employee terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if and the circumstance or event which constitutes Good Reason occurs at the request or direction of such Person, or (III) the Employee’s employment is terminated by the Employer without Cause prior to a Change in Control (but following a Potential Change in Control) and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. For purposes of any determination regarding the applicability of the immediately preceding sentence, any position taken by the Employee shall be presumed to be correct unless the Employer establishes to the Committee by clear and convincing evidence that such position is not correct.
(A) In lieu of any further salary payments to the Executive Employee for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the ExecutiveEmployee, the Company Employer shall pay to the Executive Employee a lump sum severance payment, in cash, equal to two times (i) the ExecutiveEmployee’s annual base salary as approved Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based divided by twelve (12) and multiplied by the Compensation Committee number of full months remaining in the Board to be paid Term, and (ii) the average annual bonus, including but not limited to the Executive (orAnnual Bonus described in Exhibit A, if earned by the ExecutiveEmployee under the Employers’ annual incentive plan in the Employer’s annual base salary is not presented for approval at fiscal years immediately preceding the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the fiscal year in which the Date of Termination occurs.occurs multiplied by the number of fiscal years that a bonus, including but not limited to the Annual Bonus described in Exhibit A, has not been paid to the Employee provided, however, that in the event that the Date of Termination occurs prior to the date on which Employee is first entitled to receive a bonus under the Employers’ annual incentive plan, the average annual bonus shall be deemed to be $490,000. In addition, Employee will be entitled to receive any unpaid Cash Bonus described in Section 5 and any unpaid compensation and/or compensation attributable to RSU Award(s) that has not been issued and or/or LTIP RS Awards as provided in Exhibit A.
(B) Notwithstanding any provision of any Bonus Plan, For the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to beginning on the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Terminationending on December 31, 2010, the Company Employer shall arrange to provide the Executive Employee with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits those which the Executive Employee is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in amendment to such benefits made subsequent to a Change in Control Control, which reduction constitutes Good Reasonamendment adversely affects in any manner the Employee’s entitlement to or the amount of such benefits); PROVIDED, HOWEVER, that, unless the Employee consents to a different method, such health insurance benefits shall be provided through a third-party insurer. Benefits otherwise receivable by the Executive Employee pursuant to this Section 6.1(C10.1(B) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive Employee without cost during the twenty-four (24) month benefit period following the ExecutiveEmployee’s termination of employment (and any such benefits actually received by or made available to the Executive Employee shall be reported to the Company Employer by the ExecutiveEmployee).
6.2 The . Notwithstanding the foregoing, any benefits or payments provided for in under this Section 6.1 (other than Section 6.1(C)10.1(B) hereof shall be made not later than subject to the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of following: (i) six (6the amount of expenses eligible for reimbursement or benefits provided under this Section 10.1(B) months after during any taxable year of the Date of Termination Employee may not affect the expenses eligible for reimbursement or the benefits to be provided to the Employee in any other taxable year; (ii) the death reimbursement of an eligible expense must be made on or before the last day of the Executive.
6.3 If Employee’s taxable year following the Executive’s employment is terminated following a Change taxable year in Control which the expense was incurred; and during (iii ) the term of this Agreement, unless right to reimbursement or such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees benefits may not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposedliquidation or exchange for another benefit.
Appears in 1 contract
Severance Payments. 6.1 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the ExecutiveAs severance, the Company shall pay Executive an amount equal to the amount of salary that it would have paid to Executive had Executive remained an employee of the Company through September 12, 2015. Such amount shall be paid in the increments and at the times that such salary would have been paid and shall assume that Executive’s current rate of salary would have continued through September 12, 2015. Notwithstanding the foregoing, if, before September 12, 2015, Executive obtains other full or part-time employment or engagement as a consultant, advisor or independent contractor, the Company shall only be obligated to pay Executive an amount equal to the excess, if any, of (a) the amount that it would have otherwise paid to Executive pursuant to this Paragraph 2, less (b) the gross amount of compensation that Executive earns through such employment or engagement. Executive shall be required to notify the Company promptly upon obtaining such employment or engagement, and failure to do so shall constitute a breach of this agreement and shall entitle the Company to cease any and all payments hereunder and to recoup any payments previously made after the date on which Executive obtained such employment or engagement. Such amount shall be paid in equal installments at the times that Executive’s Company salary would have been paid and only if Executive furnishes the Company with evidence reasonably satisfactory to the Company of the compensation associated with such employment or engagement. In addition, the Company will make an incremental cash payment to Executive in the amount of $50,000, such payment to be made as soon as practicable following the end of the revocation period described in Paragraph 15 below. All payments pursuant to this Paragraph 2 shall be subject to applicable tax and other withholdings. Notwithstanding any other provision of this Paragraph 2, no amounts shall be paid prior to the end of the revocation period described in Paragraph 15 below, and any amounts that would otherwise have been paid prior to the end of such revocation period shall be paid as soon as practicable after the end of such revocation period. Executive agrees that the payments described in this Section 6.1 (Paragraph 2 satisfy the “Severance Payments”) in addition Company’s obligations to pay severance or other compensation to Executive, and acknowledges that such payments constitute adequate and sufficient consideration for the payments and benefits release described in Sections 5.1 Paragraph 5, as well as the other covenants and 5.2 hereof (but agreements made by Executive in this Agreement. Executive also acknowledges that, except as expressly set forth in this Agreement or in the Company’s stock or benefit plans, Executive is not Section 5.3 hereof). The Executive’s employment shall be deemed entitled to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with receive from the Company the consummation of which will constitute a Change in Control payment or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu distribution of any further salary payments to the Executive for periods subsequent to the Date amounts of Termination and in lieu of any severance benefit otherwise payable to the Executivepay, the Company shall pay to the Executive a lump sum severance paymentbonus, in benefits, cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (orstock, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year stock options or other measuring period preceding the Date type of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof)property.
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Sources: Separation Agreement (Ezcorp Inc)
Severance Payments. 6.1 If the Executive’s 's employment is terminated terminates following a Change in Control and during the term of this AgreementTerm, unless such termination is other than (iA) by the Company for Cause, (iiB) by reason of death or Disability Disability, or (iiiC) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, then the Company shall pay the Executive the payments described in this Section 6.1 (the “"Severance Payments”") and Section 6.2, in addition to the any payments and benefits described in Sections 5.1 and 5.2 hereof (but not to which the Executive is entitled under Section 5.3 5 hereof). The For purposes of this Agreement, the Executive’s 's employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason Reason, if (i) the Executive’s 's employment is terminated by the Company without Cause prior to a Change in Control without Cause which actually occurs during the term of this Agreement and such termination was at the request or direction of a Person who has entered into an agreement with the Company the consummation of which will would constitute a Change in Control or if Control, (ii) the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying which actually occurs during the definition term of Good Reason) if this Agreement and the circumstance or event which constitutes Good Reason occurs at the request or direction of such Person, or (iii) the Executive's employment is terminated by the Company without Cause prior to a Change in Control and the Executive reasonably demonstrates that such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs during the term of this Agreement. For purposes of any determination regarding the applicability of the immediately preceding sentence, any position taken by the Executive shall be presumed to be correct unless the Company establishes to the Committee by clear and convincing evidence that such position is not correct.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two three times the sum of (i) the higher of the Executive’s 's annual base salary as approved by in effect immediately prior to the Compensation Committee occurrence of the Board to be paid to event or circumstance upon which the Executive (or, if Notice of Termination is based and the Executive’s 's annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect in effect immediately prior to the year Change in Control, and (ii) the product of (a) the amount determined under clause (i) above and (b) the higher of the average percentage of base salary paid to or earned by the Executive pursuant to any annual bonus or incentive plan maintained by the Company in respect of the three years immediately preceding that in which the Date of Termination occurs or the average percentage of base salary paid to or earned by the Executive in respect of the three years immediately preceding that in which the Change in Control occurs.
(B) For the thirty-six (36) month period immediately following the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits and Company-provided perquisites (including, but not limited to a Company car and club membership dues), in each case substantially similar to those which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any amendment to such benefits or perquisites made subsequent to a Change in Control which amendment adversely affects in any manner the Executive's entitlement to or the amount of such benefits); PROVIDED, HOWEVER, that, such health insurance benefits shall be provided through a third-party insurer. Benefits and perquisites otherwise receivable by the Executive pursuant to this Section 6.1(B) shall be reduced to the extent comparable benefits or perquisites are actually received by or made available to the Executive without cost during the thirty-six (36) month period following the Executive's termination of employment (and any such benefits and perquisites actually received by or made available to the Executive shall be reported to the Company by the Executive).
(C) Notwithstanding any provision of any Bonus Planannual or long-term incentive plan to the contrary, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed fiscal year or other measuring period preceding the Date of Termination under any such Bonus Plan but plan and which, as of the Date of Termination, is contingent only upon the continued employment of the Executive to a subsequent date or otherwise has not yet been paid (pursuant to Section 5.2 hereof or otherwise)paid, and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable aggregate value of all contingent incentive compensation awards to the Executive for all then uncompleted periods under all Bonus Plans any such plan, calculated as to each such award by multiplying the award that the Executive would have earned on the last day of the performance award period, assuming the achievement, at the target level, of the individual and corporate performance goals established with respect to such award, by the year (or fraction obtained by dividing the number of full months and any fractional portion thereof) in which of a month during such performance award period through the Date of Termination occurs, treating any and all by the total number of months contained in such performance goals award period.
(D) In addition to the retirement benefits to which the Executive is entitled under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fractioneach Pension Plan, the numerator Company shall pay the Executive a lump sum amount, in cash, equal to the excess of (i) the actuarial equivalent of the aggregate retirement pension (taking into account any early retirement subsidies associated therewith and determined as a straight life annuity commencing at the date (but in no event earlier than the third anniversary of the Date of Termination) as of which the actuarial equivalent of such annuity is the number of days in such year (or portion thereofgreatest) which elapsed the Executive would have accrued under the terms of all Pension Plans (without regard to any amendment to any Pension Plan made subsequent to a Change in Control and on or prior to the Date of Termination, which amendment adversely affects in any manner the computation of retirement benefits thereunder), determined as if the Executive were fully vested thereunder and had accumulated (after the Date of Termination) thirty-six (36) additional months of service credit thereunder and had been credited under each Pension Plan during such period with compensation at the higher of (i) the Executive's compensation (as defined in such Pension Plan) during the twelve (12) months immediately preceding the Date of Termination or (ii) the Executive's compensation (as defined in such Pension Plan) during the twelve (12) months immediately preceding the Change in Control, over (ii) the actuarial equivalent of the aggregate retirement pension (taking into account any early retirement subsidies associated therewith and determined as a straight life annuity commencing at the denominator date (but in no event earlier than the Date of Termination) as of which the actuarial equivalent of such annuity is greatest) which the number Executive had accrued pursuant to the provisions of days in such year (or portion thereofthe Pension Plans as of the Date of Termination. For purposes of this Section 6.1(D), "actuarial equivalent" shall be determined using the same assumptions utilized under the Stone Container Corporation Salaried Employees Retirement Plan immediately prior to the Date of Termination.
(CE) For a twentyIf the Executive would have become entitled to benefits under the Company's post-four retirement health care or life insurance plans, as in effect immediately prior to the Change in Control or the Date of Termination (24whichever is more favorable to the Executive), had the Executive's employment terminated at any time during the period of thirty-six (36) month period months after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and such post-retirement health care or life insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following and the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made 's dependents commencing on the earlier later of (i) six (6) months after the Date of Termination or date on which such coverage would have first become available and (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for date on which vesting has been accelerated until the seven-day revocation period benefits described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control subsection (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good ReasonB) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.6.1
Appears in 1 contract
Severance Payments. 6.1 If In the Executive’s employment is terminated following a Change in Control event of an Involuntary Termination, and during after the term of this Agreement, unless such termination is (i) timely signing by the Employee or his estate of a release of all claims against the Company for Cause, (ii) by reason of death or Disability or (iii) by and its Affiliates that is in form and substance satisfactory to the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the ExecutiveCompany, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition provide to the payments and benefits described in Sections 5.1 and 5.2 hereof Employee or his estate a severance benefit (but not Section 5.3 hereof). The Executive’s employment shall be deemed subject to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reasonapplicable withholding requirements) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.equal to:
(Aa) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum an aggregate amount, payable in cashsix (6) equal monthly installments, subject to applicable withholdings, equal to the sum of (i) any incentive compensation which has been allocated or awarded an amount equal to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months months’ Base Salary (at such Employee’s then effective Base Salary) plus (ii) an amount equal to the average bonus paid to the Employee for the three year period prior to date of such Involuntary Termination; and
(b) all of the Employee’s accrued but unpaid vacation, sick and personal days to the extent that Company policy provides for payment of such accrued but unpaid amounts. provided, however, that in order to satisfy the requirements event of Internal Revenue Code §409A(a)(2)(B)(i)a breach by the Employee of any provision of Section 3, 4, or 5 hereof that, in which the case of any such breach that is capable of being cured, is not cured within 30 days after receipt of written notice from the Company, the Employee or his estate, as applicable, shall have no right to receive any form of compensation, remuneration, payment under any note issued by the Company in respect of any equity repurchase, severance or other benefit hereunder, except that the Employee or his estate shall so advise be entitled (subject to applicable withholding requirements) to receive any unpaid Base Salary earned up through the Executivedate of the Employee’s termination of employment, subject to applicable withholdings, and all accrued but unpaid vacation, sick and personal days to the extent that the Company’s policy provides for payment of such accrued and unpaid amounts; and provided, further, however, that in the event the Employee obtains alternative employment while receiving severance payments shall be made on hereunder, the earlier Employee will promptly notify the Company of such alternative employment and the Company will have no further obligation to pay, and the Employee will have no further right to receive, any severance payments hereunder from and after the date the Employee commenced such alternative employment. Notwithstanding anything contained in this Section 7 to the contrary, (i) six the first payment of any amounts payable to the Employee under Section 7(a) will be paid to the Employee or his estate on the first payroll date that occurs on or following the sixtieth (6601h) months day after Employee’s Involuntary Termination, and will include a catch-up of any missed monthly installment payments that would have otherwise been made prior to such date had Employee executed the Date release of Termination or all claims against the Company and its Affiliates referred to above in this Section 7 on the date of his Involuntary Termination, (ii) the death payment of any amounts under Section 7(a) shall be subject to (A) the Employee or his estate (as applicable) delivering to the Company the release of all claims against the Company and its Affiliates referred to above in this Section 7 (the form of which shall be provided to the Employee or his estate within seven (7) days following the Employee’s Involuntary Termination) and (B) such release having become effective and irrevocable by the Employee under its terms and all applicable law prior to the sixtieth (601h) day following his Involuntary Termination, and (iii) the Employee’s commencement of alternative employment shall not affect his right to receive any installment payments that are missed merely by reason of the Executive.
6.3 If the Executive’s employment is terminated following a Change sixty-day delay in Control and during the term of this Agreement, unless such termination is payment provided for in clause (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Personabove.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Sources: Non Disclosure, Non Competition, Non Hiring, Non Solicitation and Severance Agreement (CIFC Corp.)
Severance Payments. 6.1 If a. Except as provided in Section 5(b), upon the Executivetermination of Employee’s employment by the Company other than for Cause prior to a Change in Control, the Employee shall be entitled to an amount equal to the aggregate of one times: (i) the annual rate of base salary then being paid to the Employee, plus (ii) the average of the past three years short term bonus pay, plus (iii) the Company’s portion of 12 months’ premiums under any health, disability and life insurance plan or program in which the Employee was entitled to participate immediately prior to the Termination Date (the aggregated amount, the “Severance Pay”), which shall be paid to Employee by the Company over a period of 12 months from the Termination Date in accordance with the Company’s regular payroll cycle, commencing on the first regular payroll date of the Company that occurs more than 60 days after the Termination Date (and including any installment that would have otherwise been paid on regular payroll dates during the period of 60 days following the Termination Date), provided the conditions specified in Section 5(c) have been satisfied.
b. Notwithstanding Section 5(a) and subject to the limitation in Section 5(e), if (i) the Employee’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Employee for Good Reason if Reason, and (ii) the Executive’s employment is terminated prior to Termination Date occurs within 24 months immediately following a Change in Control Control, the Employee shall receive two times the Severance Pay calculated in accordance with Section 5(a), which shall be paid to Employee by the Company in a lump sum on the later of 60th day following the Termination Date or the closing on the event constituting the Change in Control, provided the conditions specified in Section 5(c) have been satisfied.
c. Notwithstanding the foregoing provisions of Section 5(a) and (b), the Company will not be obligated to make any payments to or on behalf of Employee under Section 5(a) and (b), as applicable, unless (i) Employee signs a release of claims in favor of the Company in a form as prepared by the Company (the “Release”) and delivered to Employee no later than five business days after the Termination Date, (ii) all applicable consideration periods and rescission periods provided by law with respect to the Release have expired without Cause at Employee rescinding the direction of a Person who has entered into an agreement Release, and (iii) Employee is in strict compliance with the Company terms of this Agreement as of the consummation dates of which the payments. The cessation of these payments will constitute be in addition to, and not as an alternative to, any other remedies at law or in equity available to the Company, including without limitation the right to seek specific performance or an injunction,
d. If, when the Employee’s termination of employment occurs, the Employee is a Change in Control or specified employee within the meaning of section 409A of the Code, and if the Executive terminates his employment Severance Pay would be considered deferred compensation under section 409A of the Code, and finally if an exemption from the six-month delay requirement of section 409A(a)(2)(B)(i) of the Code is not available, the Employee’s Severance Pay payments for the first six months following separation from service shall be paid to the Employee in a single lump sum on the first day of the seventh month after the month in which the Employee’s separation from service occurs.
e. In the event that the vesting, acceleration and payment of any equity awards or other compensation or benefits, together with Good Reason prior all other payments and the value of any benefit received or to be received by the Employee under this Agreement would result in all or a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction portion of such Person.
(Apayment being subject to excise tax under Section 4999 of the Code, then the amounts due under Section 5(b) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, that the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to Employee shall be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of either (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination full payment or (ii) such lesser amount determined by the death Company in accordance with this Section 5(e) that would result in no portion of the Executive.
6.3 If payment being subject to excise tax under Section 4999 of the Executive’s Code (the “Excise Tax”), whichever of the foregoing amounts, taking into account the applicable Federal, state, and local employment is terminated taxes, income taxes, and the Excise Tax, results in the receipt by the Employee, on an after-tax basis, of the greatest amount of the payment notwithstanding that all or some portion of the payment may be taxable under Section 4999 of the Code. In the event the amounts due under Section are reduced, the amounts shall be reduced in the following order of priority: first, with respect to any amount that does not constitute the “deferral of compensation” under Section 409A of the Code and regulations promulgated thereunder, disregard the acceleration in the time of payment and then disregard the acceleration of vesting as a result of a Change in Control and during second, with respect to any amount that constitutes the term “deferral of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in compensation” under Section 6.6 has expired without revocation 409A of the Release Code and Waiver by regulations promulgated thereunder, disregard the Executive, acceleration in the time of payment and any such exercise before then disregard the seven-day revocation period has expired without revocation acceleration of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following vesting as a result of a Change in Control first with respect to Company funded amounts and then the Employee’s deferrals, in each case only to the extent necessary to satisfy (ii) above. All determinations required to be made under this Section 5(e) shall be made by a nationally recognized accounting firm that is the Company without Cause or by the Executive with Good Reason if the ExecutiveCompany’s employment is terminated outside auditor immediately prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with event triggering the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is payments that are subject to the Excise Tax (the “Accounting Firm”). The Company shall cause the Accounting Firm to provide detailed supporting calculations of its determinations to the Company and Employee. Notice must be given to the Accounting Firm within 15 business days after an event entitling Employee to an amount due under this Agreement. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The Accounting Firm’s determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). For the purposes of all calculations under Section 280G of the Code and the application of this Section 5.1, all determination as hereinafter definedto present value shall use 120 percent of the applicable Federal rate (determined under Section 1274(d) of the Code) compounded based on the nature of the payment, as in effect on the Date of Termination, but if not otherwise specified, compounded on a semiannual basis. The determination by the Accounting Firm shall be final and binding on the Company and the Employee.
f. If Employee’s employment with the Company is terminated by the Company for Cause or for any reason not covered by Section 5(a) or 5(b), then the Company shall pay to Employee only his base salary and any accrued but unused vacation or PTO earned through the Executive additional amounts Termination Date.
g. In addition to the benefits otherwise provided in Section 5, the Employee shall be entitled to the following benefits and payments upon the Employee’s termination of employment: (i) the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net payment of the Excise Tax shall equal Employee’s base salary and any other form or type of compensation earned, vested and payable through the total amount Date of Termination; (ii) the right to receive all Change in Control Payments benefits to which the Executive would have been entitled if Employee is vested on the Excise Tax had not been imposed. For purposes Date of this Section 6.4, Termination in accordance with the term “Excise Tax” shall mean terms under the tax imposed by Section 4999 Company pension and welfare benefit plans or any successor of the Code such plan and any similar tax that may hereafter be imposedother plan or agreement relating to retirement benefits; and (iii) the right to exercise and to receive all rights in which the Employee is vested on the Date of Termination, in accordance with the terms of all awards under any Company stock purchase and stock incentive plans or programs, or any successor to any such plans or programs.
Appears in 1 contract
Sources: Executive Severance Agreement (Alerus Financial Corp)
Severance Payments. 6.1 If (i) In the Executive’s event of termination of the Employee by the Company without cause or termination of this Agreement by Employee pursuant to Section 4(b)(i) hereof, the Company shall: (A) pay to Employee an amount equal to one times the Employee's annual salary in effect at the time of termination (not giving effect to any salary reduction giving rise to such termination) and (B) either continue the Employee's health (medical and dental) insurance as provided in Section 5(c) for one year following the date of such termination to the extent permitted under applicable law and the Company's group health insurance policies or reimburse the Employee for her cost for comparable coverage to the extent such coverage cannot be provided under such policies. Such severance pay shall be payable in equal monthly installments over the one-year period beginning on the date of termination of this Agreement and shall be subject to tax withholding to the extent required under applicable law. Notwithstanding anything herein to the contrary, the Company shall not be required to continue to provide Employee with health benefits under this paragraph if Employee becomes entitled to receive benefits substantially similar to those which Employee otherwise would have been entitled to receive hereunder. This severance pay and continuation of health benefits contemplated by this paragraph are agreed by the parties hereto to be in full satisfaction and compromise of any claim arising out of any termination of Employee's employment is terminated without cause or pursuant to Section 4(b)(i).
(ii) Notwithstanding anything herein to the contrary, in the event of termination of the Employee by the Company without cause within the two-year period following a Change in Control and during the term or termination by Employee under Section 4(b)(i) or (ii) of this Agreement, unless then in lieu of the severance pay and benefit continuation provided in Section 4(d)(i) above, the Company shall: (A) pay to Employee an amount equal to one and one-half times the Employee's annual salary in effect at the time of termination (not giving effect to any salary reduction giving rise to such termination), and (B) either continue the Employee's health (medical and dental) insurance as provided in Section 5(c) for one and one-half years following the date of such termination is (i) by to the Company extent permitted under applicable law and the Company's group health insurance policies or reimburse the Employee for Cause, (ii) by reason her cost for comparable coverage to the extent such coverage cannot be provided under such policies. Such severance pay shall be payable in equal monthly installments over the one and one-half year period beginning on the date of death or Disability or (iii) by termination of this Agreement and shall be subject to tax withholding to the Executive without Good Reason, and provided that extent required under applicable law. Notwithstanding anything herein to the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executivecontrary, the Company shall pay the Executive the payments described in not be required to continue to provide employee with health benefits under this Section 6.1 (the “Severance Payments”) in addition paragraph if Employee becomes entitled to receive benefits substantially similar to those which Employee otherwise would have been entitled to receive hereunder. Notwithstanding anything herein to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executivecontrary, the Company shall not be required to pay to any amount (the Executive a lump sum severance payment"Excess Amount") that, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee upon advice of the Board to Company's independent tax advisor or counsel, would be paid to the Executive (orin excess of 2.99 times Employee's Base Amount, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiariesdefined in Section 280G(b)(3) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(iof 1986, as amended (the "Code"), in which case and, therefore, would trigger the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts tax (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “"Excise Tax” shall mean the tax ") imposed by Section 4999 of the Code Code, unless Employee agrees to be bound by the noncompetition provisions of Section 7 hereof for one additional year following the termination. Payment of the Excess Amount shall be consideration for the Employee agreeing to be bound by such noncompetition provision for such additional year. Election by the Employee to receive the Excess Amount and any similar tax to be bound by the noncompetition provision shall be given in writing to the Company not later than five days after the date on which the Company notifies Employee in writing that an Excess Amount may hereafter be imposedpayable absent such agreement and, upon receipt of such notice, the Company shall be obligated to pay the Excess Amount to Employee.
Appears in 1 contract
Severance Payments. 6.1 If Subject to Section 10.2 hereof, the Executive’s Employer shall pay the Employee the payments described in this Section 10.1 (the "Severance Payments") upon the termination of the Employee's employment is terminated following a Change in Control and during prior to the term end of this Agreementthe Change-in-Control Protective Period, in addition to any payments and benefits to which the Employee is entitled under Sections 5, 6, 7 and 8.1 hereof, unless such termination is (i) by the Company Employer for Cause, (ii) by reason of death or Disability Disability, or (iii) by the Executive Employee without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation . For purposes of the Release and Waiver by the Executivethis Agreement, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s Employee's employment shall be deemed to have been terminated by the Employer without Cause following a Change in Control by the Company without Cause or by the Executive Employee with Good Reason following a Change in Control, as the case may be, if (i) the Executive’s Employee's employment is terminated without Cause prior to a Change in Control without Cause and such termination was at the request or direction of a Person who has entered into an agreement with the Company Employer the consummation of which will would constitute a Change in Control or if Control, (ii) the Executive Employee terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if and the circumstance or event which constitutes Good Reason occurs at the request or direction of such Person, or (iii) the Employee's employment is terminated by the Employer without Cause prior to a Change in Control (but following a Potential Change in Control) and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. For purposes of any determination regarding the applicability of the immediately preceding sentence, any position taken by the Employee shall be presumed to be correct unless the Employer establishes to the Committee by clear and convincing evidence that such position is not correct.
(A) In lieu of any further salary payments to the Executive Employee for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the ExecutiveEmployee, the Company Employer shall pay to the Executive Employee a lump sum severance payment, in cash, equal to two three (3) times the Executive’s sum of (i) the higher of the Employee's Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or the Employee's Base Salary in effect immediately prior to the Change in Control, and (ii) the higher of the annual base salary as approved bonus earned by the Compensation Committee Employee in respect of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the Employer's fiscal year immediately preceding that in which the Date of Termination occurs or the average annual bonus so earned in respect of the three fiscal years immediately preceding that in which the Change in Control occurs.
(B) Notwithstanding any provision of any Bonus Planannual incentive plan to the contrary, the Company Employer shall pay to the Executive Employee a lump sum amount, in cash, equal to the sum of (i) any annual incentive compensation which has been allocated or awarded to the Executive Employee for a completed fiscal year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant and which, as of the Date of Termination, is contingent only upon the continued employment of the Employee to Section 5.2 hereof or otherwise)a subsequent date, and (ii) a pro rata portion to the Date of Termination of a deemed annual bonus for the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the Employer's fiscal year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum (i) the higher of the annual bonus amount earned by a fraction, the numerator Employee with respect to the immediately preceding fiscal year or the average annual bonus earned by the Employee with respect to the immediately preceding three fiscal years of which is the Employer by (ii) the fraction obtained by dividing the number of days in such the fiscal year (or portion thereof) of the Employer in which elapsed termination occurs up to and including the Date of Termination and the denominator of which is the number of days in such year (or portion thereof)by 365.
(C) For a twentythe thirty-four six (2436) month period after immediately following the Date of Termination, the Company Employer shall arrange to provide the Executive Employee with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits those which the Executive Employee is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in amendment to such benefits made subsequent to a Change in Control Control, which reduction constitutes Good Reasonamendment adversely affects in any manner the Employee's entitlement to or the amount of such benefits); PROVIDED, HOWEVER, that, unless the Employee consents to a different method (after taking into account the effect of such method on the calculation of "parachute payments" pursuant to Section 10.2 hereof), such health insurance benefits shall be provided through a third-party insurer. Benefits otherwise receivable by the Executive Employee pursuant to this Section 6.1(C10.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive Employee without cost during the twentythirty-four six (2436) month period following the Executive’s Employee's termination of employment (and any such benefits actually received by or made available to the Executive Employee shall be reported to the Company Employer by the ExecutiveEmployee).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof . If the Severance Payments shall be made not later than decreased pursuant to Section 10.2 hereof, and the fifth (5thSection 10.1(C) day following benefits which remain payable after the expiration application of Section 10.2 hereof are thereafter reduced pursuant to the immediately preceding sentence because of the seven-day revocation period described in Section 6.6 without revocation receipt or availability of comparable benefits, the Employer shall, at the time of such reduction, pay to the Employee the least of (a) the amount of the Release and Waiver by decrease made in the ExecutiveSeverance Payments pursuant to Section 10.2 hereof, unless (b) the Company determines amount of the subsequent reduction in good faith that such payments are required to be delayed for a period of six (6these Section 10.1(C) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i)benefits, in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (iiC) the death of maximum amount which can be paid to the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this AgreementEmployee without being, unless such termination is (i) by the Company for Causeor causing any other payment to be, (ii) nondeductible by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation section 280G of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such PersonCode.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Severance Payments. 6.1 If (a) In the Executive’s event that Employee's employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is by (i) the Company while this Agreement is in effect without Good Cause as defined in Sections 8(c)(1), (2) or (3) hereof, (ii) by the Company for CauseGood Cause as defined in Section 8(c)(4) hereof, (iiiii) because the Company terminates the Employment Period pursuant to Section 2 of this Employment Agreement, (iv) by reason of incapacity or disability in accordance with Section 4, or (v) by reason of death or Disability or in accordance with Section 5:
(iii1) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the The Company shall pay to Employee or his estate, no later than thirty (30) calendar days after such Termination Date, an amount equal to any unpaid current Annual Base Salary accrued through the Executive Termination Date, his bonus, calculated at one hundred percent (100%) of his Annual Base Salary prorated for the payments described current fiscal year through the Termination Date, plus one (1) times the sum of his then current Annual Base Salary and bonus, calculated at one hundred percent (100%) of his Annual Base Salary. The Company shall continue to keep in this Section 6.1 full force and effect all plans or policies of medical, accident and life insurance benefits with respect to Employee and his dependents with the same level of coverage available to employees under the terms of those employee benefit plans for a period of twelve (12) months, upon the “Severance Payments”) in addition same terms, costs and otherwise to the payments and benefits described same extent as such plans are in Sections 5.1 and 5.2 hereof effect for employees of the Company who were similarly situated to Employee as of the Termination Date.
(2) All restricted shares previously awarded to Employee but not Section 5.3 hereof). The Executive’s employment yet vested shall become vested and non-forfeitable as of the Termination Date.
(3) To the extent stock options granted to Employee have not become fully vested and exercisable as of the Termination Date, such options shall become fully vested and all vested stock options shall be deemed to have been exercisable for two (2) years commencing on the Termination Date.
(b) In the event that Employee's employment is terminated following a Change in Control by the Company for Good Cause as defined in Sections 8(c)(1), (2) or (3):
(1) The Company shall pay to Employee, no later than thirty (30) calendar days after the Termination Date, an amount equal to his then current Annual Base Salary accrued but unpaid through the Termination Date; and Employee shall have a period of ninety (90) days after such Termination Date in which to exercise any exercisable vested stock options, subject to the provisions of any applicable stock option agreement.
(2) Any restricted shares or stock options previously granted but still subject to restriction or unvested at the Termination Date shall be forfeited.
(c) Good Cause shall mean the Company's Board has determined in good faith, without Cause or being bound by the Executive with Good Reason if Company's progressive discipline policy for employees:
(1) that Employee has engaged in acts or omissions against the Executive’s employment Company or any of its subsidiaries constituting dishonesty, intentional breach of fiduciary obligation or intentional wrongdoing or misfeasance; or
(2) that Employee has been arrested or indicted in a possible criminal violation involving fraud or dishonesty; or
(3) that Employee has intentionally and in bad faith acted in a manner which results in a material detriment to the assets, business or prospects of the Company or any of its subsidiaries; or
(4) that Employee has failed to perform on a prolonged basis, where such failure is terminated prior considered to a Change in Control without Cause at the direction of a Person who has entered into an agreement be substantial and where corporate performance expectations have been previously agreed upon with the Company Employee on an annual basis. Further, the consummation failure to perform must be because of which will constitute a Change in Control things considered to be within the reasonable control of the Employee, generally of an operating or if strategic nature, and excluding performance primarily resulting from things clearly beyond the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control reasonable control of Employee, such as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.following:
(A) In lieu a drop in the Company's stock share price as a result of any further salary payments an overall market correction, (B) severe national economic conditions, or (C) adverse problems intrinsic to the Executive for periods subsequent Company's industry.
(d) In the event that Employee's employment is terminated (i) because the Employee terminates the Employment Period pursuant to Section 2 of this Employment Agreement or (ii) because Employee voluntarily leaves the Date employ of Termination and in lieu of any severance benefit otherwise payable to the ExecutiveCompany during the Employment Period, then the Company shall pay to the Executive a lump sum severance paymentEmployee, in cashno later than thirty (30) calendar days after such Termination Date, an amount equal to two any unpaid current Annual Base Salary accrued through the Termination Date, plus one (1) times his then current Annual Base Salary. Any bonus finally determined to be payable at the Executive’s annual base salary as approved by the Compensation Committee end of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the fiscal year in which the Termination Date is included shall be prorated for the period up to and including the Termination Date and shall be promptly paid to Employee at the same time any other similar bonuses are paid to any other employee of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company for such fiscal year. The Company shall pay continue to the Executive a lump sum amountkeep in full force and effect all plans or policies of medical, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), accident and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans life insurance benefits with respect to Employee and his dependents with the year (or any portion thereof) in which the Date same level of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made coverage available to employees under the Executive without cost during the twenty-four (24) month period following the Executive’s termination terms of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed those employee benefit plans for a period of six twelve (612) months months, upon the same terms, costs and otherwise to the same extent as such plans are in order effect for employees of the Company who were similarly situated to satisfy Employee as of the requirements Termination Date.
(e) Following the Employment Period, Employee shall be eligible for continuation of Internal Revenue Code §409A(a)(2)(B)(ihealth and dental insurance coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act (COBRA) for eighteen (18) months. For the first twelve (12) months, Employee's cost will be an amount equal to the normal employee contribution. Thereafter, the cost will be an amount equal to the COBRA cost of such coverage. During the first eighteen (18) months, Employee may elect any of the coverages available to Humana employees. Thereafter, Humana agrees that Employee may elect coverage under any of the insured products offered by Humana's health insurance or HMO subsidiaries for Employee, his spouse as of the date hereof ("Spouse"), in which case and any eligible dependent until the Company shall so advise the Executive, and such payments shall be made on later of Employee's age sixty-five (65) or eligibility for Medicare coverage (hereinafter "Extended Coverage"). At the earlier of Employee attaining Medicare eligibility or death, Employee's Spouse and any now current eligible dependent of Employee and Spouse will be eligible for Extended Coverage until the later of Spouse's age sixty-five (i65) six (6) months after or Medicare coverage eligibility. If at any time during which the Date Extended Coverage is in effect Employee or his Spouse obtains Medicare or becomes eligible for other employee group health insurance coverage which does not exclude a pre-existing condition of Termination Employee, Spouse or (ii) dependent, Humana's obligation will cease as to the death one who has obtained Medicare or, in the case of other employee group health coverage, as to that person and their eligible dependents. Employee's premium for the Extended Coverage and Spouse's premium, if she retains Extended Coverage, will be amount equal to the COBRA cost of such coverage. If Humana hereafter adopts a retiree health insurance program and Humana still has obligations under this provision, Employee will be offered the option of participating in that program in lieu of the Executive.
6.3 If Extended Coverage described herein. The health and dental insurance benefits hereunder shall be administered in conjunction with any other similar benefits which the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by Employee has from the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested but in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive no case shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Personduplicative.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Sources: Employment Agreement (Humana Inc)
Severance Payments. 6.1 If the Executive’s With respect to any Transferred Employee whose employment is terminated following a Change by Purchaser for any reason other than cause on or before the first anniversary of the applicable Transfer Date, Purchaser shall pay to such Transferred Employee the greater of (a) the amount of cash severance pay such Transferred Employee would have received if he or she separated from Seller as of June 30, 2012 under the applicable severance plan or policy maintained by Seller and its Affiliates as described in Control Schedule 8.7(c) of the Seller Disclosure Schedule, or (b) the amount of cash severance pay payable to such Transferred Employee under any applicable severance plan or policy of Purchaser and during its Affiliates in effect at the term time of this Agreement, unless such termination is (i) by the Company of employment; provided, however, that in each case such Transferred Employee shall be credited for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period service as described in Section 6.6 has expired without revocation 8.7(d) of the Release Agreement. In addition and Waiver notwithstanding any provision herein to the contrary, if a Branch Employee does not receive an offer from Purchaser in compliance with Sections 8.7(a) and (b) of this Agreement and such Branch Employee’s employment with Seller is terminated by Seller during the Executivethree (3) month-period following the Closing Date (or, in the Company case of Leave Employees, following the date upon which the Leave Recipient is able to return to active status; provided that such return occurs within six months of the Closing Date or such longer period as required by applicable law), then Purchaser shall reimburse Seller, within thirty (30) days of receipt of an invoice from Seller, for the costs of any severance benefits (including the costs incurred during any notice period or pay the Executive the payments described in lieu of notice) payable by Seller to such Branch Employee as provided in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof8.7(c). The Executive’s However, if a Branch Employee receives an offer of employment from Purchaser in compliance with Sections 8.7(a) and (b) of this Agreement and fails to accept such offer of employment, the foregoing sentence shall not be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior applicable to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction termination of such PersonBranch Employee.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Eagle Bancorp Montana, Inc.)
Severance Payments. 6.1 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (iA) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company Employee shall pay the Executive the payments described in this Section 6.1 be entitled to receive an amount (the “Severance PaymentsRelease Amount”) equal to ten percent (10%) of the Aggregate Separation Payment (as defined in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof3(A) below). The Executive’s employment shall be deemed Subject to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the ExecutiveSection 2(E), the Company shall pay to Release Amount will be paid on the Executive next business day following the Release Deadline (as defined in Section 2(E) below) in a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurssum.
(B) Notwithstanding any provision Employee shall be entitled to receive an amount (the “Severance Amount”) equal to ninety percent (90%) of any Bonus Planthe Aggregate Separation Payment, such amount to be paid in six (6) equal monthly installments. Subject to Section 2(D), the Company shall pay to first installment will be paid on the Executive a lump sum amount, in cash, equal to next business day following the sum of (i) any incentive compensation which has been allocated or awarded to Release Deadline and the Executive for a completed year or other measuring period preceding remaining payments will begin on the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination first business day of the maximum bonus amount payable to month following the Executive under all Bonus Plans with respect to the year (or any portion thereof) month in which the Date of Termination Release Deadline occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four All payments shall be subject to applicable taxes, and shall be capped at an amount such that the aggregate present value of all “parachute payments” (24computed as of the date of the Change in Control) month period after does not exceed 2.99 times Employee's ”base amount” determined for purposes of Internal Revenue Service Code Section 280G.
(D) Notwithstanding anything to the Date of Terminationcontrary contained herein, the Company shall arrange Company's obligations to provide the Executive with life, disability, accident and health insurance benefits substantially similar make any payments to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive Employee pursuant to this Section 6.1(C2(C)(2)(B) above shall be reduced to immediately cease without any required notice or further action on the extent comparable benefits are actually received by Company's part if at any time Employee engages in a Conflicting Activity (as defined in Section 3(F) below) following his or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s her termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such PersonCompany.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Severance Payments. 6.1 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the The Company shall pay Executive $350,625.00 in severance payments, paid in monthly payments of $19,479.17 for a period of eighteen (18) months (equal to 150% of Executive’s annual base salary plus a pro rata portion of his target bonus for 2001, less 25%, as of the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 date hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by Notwithstanding the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executiveforegoing, the Company shall pay to Executive, in accordance with its customary payroll practices (but not later than July 13, 2001) and to the extent not previously paid, Executive’s base salary accrued through the Separation Date (“Accrued Base Salary”), and such payment or payments of Accrued Base Salary shall not reduce or offset the Company’s obligation to make the Severance Payments. If a Change in Control (as defined below) occurs after the Separation Date, the Company shall use its best efforts to pay the remaining Severance Payments due to Executive under this paragraph (i) in a lump sum severance paymentas soon as practicable and, if reasonably feasible, before consummation of the Change in cashControl, equal but in any event not later than within thirty (30) days after the Change in Control. For purposes of this paragraph (i), a “Change in Control” shall be deemed to two times have occurred if (A) a tender offer shall be made and consummated for the Executive’s annual base salary ownership of more than 50% of the outstanding voting securities of the Company, (B) the Company shall be merged or consolidated with another corporation and as approved a result of such merger or consolidation less than 50% of the outstanding voting securities of the surviving or resulting corporation shall be owned in the aggregate by the Compensation Committee former shareholders of the Company, as the same shall have existed immediately prior to such merger or consolidation, (C) the Company shall sell all or substantially all of its assets to another corporation which is not a wholly-owned subsidiary or affiliate, (D) as the result of, or in connection with, any contested election for the Board, or any tender or exchange offer, merger or business combination or sale of assets, or any combination of the foregoing (a “Transaction”), the persons who were Directors of the Company before the Transaction shall cease to constitute a majority of the Board to be paid or the board of directors of any successor to the Executive Company or (orE) a person, if within the Executive’s annual base salary is meaning of Section 3(a)(9) or of Section 13(d)(3) (as in effect on the date hereof) of the Securities and Exchange Act of 1934 (“Exchange Act”), other than any employee benefit plan then maintained by the Company, shall acquire more than 50% of the outstanding voting securities of the Company (whether directly, indirectly, beneficially or of record). For purposes hereof, ownership of voting securities shall take into account and shall include ownership as determined by applying the provisions of Rule 13d-3(d)(1)(i) (as in effect on the date hereof) pursuant to the Exchange Act. Notwithstanding the foregoing, (x) a Change in Control will not presented occur for approval at purposes of this Agreement merely due to the Compensation Committee leveldeath of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, then or as otherwise established a result of the acquisition by J. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, alone or with one or more affiliates or associates, as defined in the Exchange Act, of securities of the Company, as part of a going-private transaction or otherwise, unless ▇▇. ▇▇▇▇▇▇▇▇ or one his affiliates, associates, family members or trusts for the benefit of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
family members (B) Notwithstanding any provision of any Bonus Plancollectively, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. “▇▇▇▇▇▇▇▇ shall immediately become vested in full. The Executive agrees Entities”) do not to exercise the portion of such stock options for which vesting has been accelerated until the sevencontrol, directly or indirectly, at least twenty-day revocation period described in Section 6.6 has expired without revocation seven percent (27%) of the Release and Waiver by the Executiveresulting entity, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reasony) if the circumstance ▇▇▇▇▇▇▇▇ Entities control, directly or event which constitutes Good Reason occurs at indirectly, less than twenty-seven percent (27%) of the direction Company’s voting securities while it is a public company, then “33-1/3%” shall be substituted for “50%” in clauses (A), (B) and (E) of such Person.
this paragraph (i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Sources: Separation and General Release Agreement (Apac Customer Service Inc)
Severance Payments. 6.1 If (a) Upon any termination of the Executive’s employment by the Company without Cause or by the Executive for Good Reason, the Company shall pay as severance to the Executive an amount (the “Cash Severance Amount”) equal to the sum of eighteen (18) months of the Executive’s Base Salary in effect immediately prior to the Date of Termination. The Company shall pay the Cash Severance Amount over the twelve (12)-month period immediately following the Date of Termination (the “Severance Period”), in equal installments as nearly as practicable, on the normal payroll dates for employees of the Company generally but in no event less frequently than monthly. Any amounts payable pursuant to this Section 6(a) shall not be paid until the first scheduled payment date following the date the release contemplated in Section 6(d) is terminated following a Change executed and no longer subject to revocation, with the first such payment being in Control and an amount equal to the total amount to which the Executive would otherwise have been entitled during the term period following the Date of this AgreementTermination if such deferral had not been required; provided, unless however, that any such amounts that constitute nonqualified deferred compensation within the meaning of Code Section 409A shall not be paid until the sixtieth (60th) day following such termination to the extent necessary to avoid adverse tax consequences under Code Section 409A, and, if such payments are required to be so deferred, the first payment shall be in an amount equal to the total amount to which the Executive would otherwise have been entitled during the period following the Date of Termination if such deferral had not been required; provided, further, that, if the Executive is a “specified employee” within the meaning of Code Section 409A, any amounts payable to the Executive under this Section 6(a) during the first six (6) months and one (1) day following the Date of Termination that constitute nonqualified deferred compensation within the meaning of Code Section 409A shall not be paid until the date that is six (6) months and one (1) day following such termination to the extent necessary to avoid adverse tax consequences under Code Section 409A, and, if such payments are required to be so deferred, the first payment shall be in an amount equal to the total amount to which the Executive would otherwise have been entitled to during the period following the Date of Termination if such deferral had not been required.
(b) In the event of any termination of the Executive’s employment (i) by the Company for Cause, or (ii) by reason of due to the Executive’s death or Disability or (iii) by Disability, the Executive without Good Reasonshall not be entitled to any severance or other payments or benefits as of the Date of Termination (except as required by applicable law) and all rights to receive a salary, and provided that benefits or other compensation shall termination as of the seven-day revocation period described Date of Termination except as set forth in Section 6.6 has expired without revocation 7.
(c) If the Executive breaches any provision of the Release and Waiver by the ExecutiveSections 8 through 11 hereof, the Company shall pay no longer be obligated to make any payments or reimbursements or provide any benefits pursuant to this Section 6.
(d) The Company’s obligations under this Section 6 shall be contingent upon (i) the delivery by the Executive of a complete release in favor of the Company, its subsidiaries, affiliates, and respective officers, directors, employees, principals, managers, partners, members, attorneys and representatives, in substantially the form attached hereto as Annex A, within twenty-one (21) days after the Date of Termination and (ii) the Executive not revoking such release.
(e) In the event that the Company fails to pay any of the amounts set forth in Section 6(a) within five (5) business days after the date when due, the overdue amounts shall accrue interest at a rate equal to five (5%) per year until such overdue amounts and interest are paid. If the Executive dies during the postponement period prior to the payment in full of amounts set forth in Section 6(a), the unpaid amounts shall be paid to the personal representative of the Executive’s estate when due.
(f) The payments described provided in this Section 6.1 (the “Severance Payments”6(a) shall be in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for set forth in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive7 hereof.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code and any similar tax that may hereafter be imposed.
Appears in 1 contract
Severance Payments. 6.1 (a) If the Executive’s 's employment is terminated following a Change for any reason including death, the Executive or spouse of the Executive shall be entitled to receive the greater of:
(i) the total of:
(A) 24 months' salary at the then applicable base salary rate;
(B) the present value, as determined by the Chairman, acting reasonably, of the benefits described in Control and section 4(b) that would be enjoyed by the Executive during the consecutive 24 months assuming his employment was not terminated and assuming the then current level of benefits were continued for those 24 months; and
(C) the present value, as determined by the Chairman, acting reasonably, of the amounts that would have been paid by the Corporation or reimbursed to the Executive pursuant to section 8 during the consecutive 24 months assuming that his employment had not been termination; and
(ii) the salary otherwise payable to the Executive for the unexpired term of this Agreementagreement together with the other amounts described in clause 11(b)(i), unless such termination is (i) by the Company for Causemutatis mutandis, (ii) by reason of death or Disability or (iii) by provided that in no case will the Executive without Good Reason, and provided that receive less than the seven-day revocation period amount to which he is entitled under the Employment Standards Act (Ontario). The payment described in Section 6.6 has expired without revocation this subsection 11(b) is the only severance payment the Executive will receive in the event of the Release and Waiver by termination of this agreement for reasons contemplated in this subsection 11(b).
(b) The Executive's employment is terminated as a result of the permanent disability or death of the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment or his estate, as applicable, shall be deemed entitled to have been terminated following a Change in Control by receive, within 30 days of the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction date of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executivetermination, the Company shall pay to balance of the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to that would otherwise be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination remainder of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in fullagreement. The Executive agrees not to exercise reasonably comply with all requirements necessary for the portion Corporation to obtain life insurance for the term of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Personthis agreement.
(ic) If any payment or benefit made available to For the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposed. For purposes of this section 11, whenever a payment is to be determined with reference to the remaining term of this agreement, if less than six months remain in the term of this agreement and no party has given notice of its intention not to renew this agreement as contemplated by Section 6.41, the "remaining term “Excise Tax” of this agreement" shall mean include the tax imposed by Section 4999 remainder of the Code and any similar tax that may hereafter be imposedthen existing term of this agreement plus the renewal period.
Appears in 1 contract
Severance Payments. 6.1 If 2.1 Provided that Employee has signed the Executive’s employment is terminated following a Change Release attached hereto as Exhibit A (the "Release"), the Company shall pay the Employee the payments described in Control and during this Section 2.1 (the term "Severance Payments") upon the termination of this Agreementthe Employee's employment, unless such termination is (ia) by the Company for Cause, (iib) by reason of death or Disability Disability, or (iiic) by the Executive Employee without Good Reason. Notwithstanding the foregoing, and provided that the seven-day revocation period described Company's obligation to pay Employee the Severance Payments or to provide any other benefit to Employee hereunder shall immediately cease (i) upon Employee's breach of any of the provisions set forth in Section 6.6 has expired without revocation of the Release and Waiver by the Executive3 below, the Company shall pay the Executive the payments described in this Section 6.1 or (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reasonii) if Employee revokes or attempts to revoke the circumstance or event which constitutes Good Reason occurs at the direction of such PersonRelease.
(Aa) In lieu of any further salary payments to the Executive Employee for periods subsequent to after the Date of Termination and in lieu of any severance benefit otherwise payable to the ExecutiveEmployee (other than any such benefit that may accrue under the Company's Stock Option Plan), the Company shall pay to the Executive a lump sum severance paymentEmployee, in cash, within thirty (30) days after the first day of each of four consecutive six month periods the first of which shall begin on the first of the month following the Date of Termination, for a total of twenty-four (24) months, an amount equal to two times 1/2 of the Executive’s Employee's annual base salary as approved by in effect immediately prior to the Compensation Committee occurrence of the Board to event or circumstance upon which the Notice of Termination is based. In no event shall the total payments made under this Section 2.1(a) be paid to more than 200% of the Executive (or, if the Executive’s Employee's annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect in effect immediately prior to the year in occurrence of the event or circumstance upon which the Date Notice of Termination occursis based.
(Bb) Notwithstanding any provision of any short-term incentive bonus arrangement applicable to the Employee, if any (the "Bonus Plan"), the Company shall pay to the Executive Employee a lump sum amount, in cash, equal to the sum of (i) any incentive compensation bonus amount which has been allocated or awarded to the Executive Employee for a completed fiscal year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise)paid, and (ii) a pro rata portion to the Date of Termination of the maximum aggregate value of all contingent bonus amount payable awards to the Executive Employee for all uncompleted periods under all the Bonus Plans Plan calculated as to each such award by assuming the achievement of the target performance level within the performance range established with respect to such award and basing such pro-rata portion upon the portion of the award period that has elapsed as of the Date of Termination.
(c) For the one-year (or any portion thereof) in which period starting on the Date of Termination occurs(in the case of an Early Termination), treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, or for the numerator of which is the number of days in such two-year (or portion thereof) which elapsed to period starting on the Date of Termination and (in the denominator case of which is a Later Termination), as the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Terminationcase may be, the Company shall arrange to provide the Executive Employee with life, disability, disability and accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits those which the Executive Employee is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent if such reduction constitutes Good Reason). For the entire period beginning on the Date of Termination and ending on the earlier of the Employee's death or the Employee's 65th birthday, Company shall arrange to a Change provide the Employee with health insurance benefits substantially similar to those which the Employee is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in Control which such benefits if such reduction constitutes Good Reason). Benefits otherwise receivable by the Executive Employee pursuant to this Section 6.1(C2.1(c) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive Employee without cost during the twentyabove-four (24) month period following the Executive’s termination of employment (and referenced period. In addition, any such benefits actually received by the Executive Employee shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such PersonEmployee.
(ia) If any payment Whether or benefit made available not the Employee becomes entitled to the Executive in connection with a Change in Control (includingSeverance Payments, without limitation, if any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change Total Payments (as defined in Control subsection (in either category, a “Change in Control Payment”b) is below) will be subject to an excise tax under Section 4999 of the Code (the "Excise Tax (as hereinafter definedTax"), the Company shall pay to the Executive Employee an additional amounts amount (the “Gross "Gross-Up Amounts”Payment") such that the total net amount retained by the Employee, after deduction of all Change in Control any Excise Tax on the Total Payments net and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 2.2, shall be equal to the excess of the Total Payments over the payment provided for by this Section 2.2.
(b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax shall equal and the total amount of such Excise Tax, (i) any payments or benefits received or to be received by the Employee in connection with a Change of Control or the Employee's termination of employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company (the "Total Payments"), shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel selected by the Company's independent auditors and reasonably acceptable to the Employee, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, and all Change in Control Payments "excess parachute payments" (within the meaning of section 280G(b)(1) of the Code) shall be treated as subject to which the Executive would have been entitled if the Excise Tax had unless, in the opinion of such tax counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4)(B) of the Code), or are otherwise not been imposedsubject to the Excise Tax, and (ii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made, FICA taxes at the highest rate applicable with respect to wages in excess of the Social Security taxable wage base in effect for the year of payment, and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Employee's residence on the Date of Termination (or such other time as is hereinafter described), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.
(c) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Employee's employment (or such other time as is hereinafter described), the Employee shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Employee to the extent that such repayment results in a reduction in Excise Tax or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Employee's employment (or such other time as is hereinafter described) (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or addition payable by the Employee with respect to such excess) at the time that the amount of such excess is finally determined. The Employee and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. If an Employee who remains in the employ of the Company becomes entitled to the payment provided for by this paragraph, such payment shall be made no later than the later of (i) the fifth day following the date on which the Employee notifies the Company that he is subject to the Excise Tax and (ii) twenty days prior to the date on which the Excise Tax is initially due.
(d) The payments provided for in this Section 6.42.2 shall be made as soon as practicable prior to the date that Employee is obligated to pay the Excise tax; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the term “Excise Tax” Company shall mean pay to the tax imposed Employee on such day an estimate, as determined in good faith by Section 4999 the Company of the Code minimum amount of such payments to which the Employee is clearly entitled and any similar tax shall pay the remainder of such payments (together with interest at the rate provided in section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that may hereafter be imposedthe amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Employee, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in section 1274(b)(2)(B) of the Code). At the time that payments are made under this section, the Company shall provide the Employee with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including.
Appears in 1 contract
Sources: Severance Agreement (Viropharma Inc)
Severance Payments. 6.1 If 10.1 The Company shall pay the Executive the payments described in this Section 10.1 (the "Severance Payments") upon the termination of the Executive’s 's employment is terminated following a Change in Change- in-Control and during prior to the term end of this Agreementthe Change-in-Control Protective Period, in addition to the payments and benefits described in Sections 6 and 7 hereof, unless such termination is (i) by the Company for Cause, (ii) by reason of death death, Disability or Disability Retirement, or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation . For purposes of the Release and Waiver by immediately preceding sentence, if a termination of the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s 's employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated occurs prior to a Change Change-in-Control, but following a Potential Change-in-Control in Control without Cause at the direction of which a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Change-in-Control, such termination shall be deemed to have followed a Change-in-Control and to have been (i) by the Company without Cause, if the Executive's employment is terminated without Cause at the direction of such Person, or (ii) by the Executive with Good Reason, if the Executive terminates his employment with Good Reason prior and the act (or failure to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reasonact) if the circumstance or event which constitutes Good Reason occurs following such Potential Change-in-Control and at the direction of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination Termination, in lieu of any lump sum payment with respect to aggregate Base Salary otherwise payable pursuant to Section 8 hereof, and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two three (3) times the Executive’s annual base salary as approved by sum of:
(i) the Compensation Committee higher of the Board to be paid Executive's annual Base Salary in effect immediately prior to the Executive (or, if occurrence of the event or circumstance upon which the Notice of Termination is based or the Executive’s 's annual base salary is not presented Base Salary in effect immediately prior to the Change-in-Control, and
(ii) the incentive compensation award the Executive would have received under the Annual Executive Incentive Plan for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occursoccurs calculated by assuming that the Target Performance goals of such plan for that year have been met, and
(iii) the amount the Company agreed to pay in connection with the Life Insurance Policy referred to in the third paragraph of Section 5.2 hereof.
(B) Notwithstanding any provision of any Bonus the Company's Annual Executive Incentive Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed fiscal year or other measuring period preceding the Date of Termination under any such Bonus Plan the Annual Executive Incentive Plan, but has not yet been either (x) paid (pursuant to Section 5.2 6.2 hereof or otherwise)) or (y) deferred pursuant to the Deferred Compensation Plan for Salaried Employees, and (ii) a pro pro-rata portion to the Date of Termination of the maximum bonus amount payable aggregate value of any contingent incentive compensation award to the Executive for any uncompleted fiscal year under all Bonus Plans with respect the Annual Executive Incentive Plan calculated as to each such award by assuming the year Target Performance goals of such plan have been met.
(or any portion thereofC) in In determining the retirement benefits to which the Date of Termination occurs, treating any and all performance goals Executive is entitled under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fractionthe Company's Supplemental Executive Retirement Plan, the numerator Executive shall be given an additional two (2) years of which is service credit at the number Executive's highest annual rate of days in such year compensation during the twelve (or portion thereof12) which elapsed to months immediately preceding the Date of Termination and shall be deemed to be two (2) years older than he is; provided that if the denominator Executive does not have at least ten (10) years of service credit under the Company's Supplemental Executive Retirement Plan after such additional two (2) years of service credit, the Executive shall be deemed to have at least ten (10) years of service credit under the Supplemental Executive Retirement Plan; such benefits shall be determined without regard to any amendment to the Supplemental Executive Retirement Plan made subsequent to a Change-in-Control and on or prior to the Date of Termination, which is amendment adversely affects in any manner the number computation of days in such year (or portion thereof)retirement benefits thereunder.
(CD) For a twentythirty-four six (2436) month period after the Date of Termination, the Company shall arrange to provide the Executive with lifelife (other than the Life Insurance Policy), disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits those which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Change-in-Control which reduction constitutes if the Executive terminated his employment for Good ReasonReason or was terminated without Cause). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C10.1(D) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twentythirty-four six (2436) month period following the Executive’s 's termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive). If the benefits provided to the Executive under this Section 10.1(D) shall result in a Gross-Up Payment pursuant to Section 10.2, and these Section 10.1(D) benefits are thereafter reduced pursuant to the immediately preceding sentence because of the receipt of comparable benefits, the Gross-Up Payment shall be recalculated so as to reflect that reduction, and the Executive shall refund to the Company an amount equal to any calculated reduction in the Gross-Up Payment.
6.2 (A) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive on account of a Change-in-Control, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a "Payment"), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then the Executive shall be entitled to receive an additional payment ("Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
(B) Subject to the provisions of Section 10.2(C) hereof, all determinations required to be made under this Section 10.2, including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be used in arriving at such determinations, shall be made by the Company's principal outside accounting firm (the "Accounting Firm") which shall provide detailed supporting calculations both to the Board and the Executive within fifteen (15) business days of the Date of Termination. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The initial Gross-Up Payment, if any, as determined pursuant to this Section 10.2(B), shall be paid by the Company to the Executive within five (5) days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm under this Section 10.2(B) shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 10.2(C) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive.
(C) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of an Underpayment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall:
(i) give the Company any information reasonably requested by the Company relating to such claim,
(ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order effectively to contest such claim, and
(iv) permit the Company to participate in any proceeding relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.2(C), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissi▇▇▇ manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue for a refund, the Company shall advance the amoun▇ ▇f such payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a Gross- Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.
(D) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.2(C) hereof, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of Section 10.2(C) hereof) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.2(C) hereof, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid.
10.3 The payments provided for in Section 6.1 10.1 hereof (other than Section 6.1(C10.1(C) and (D)) hereof shall be made not later than the fifth (5th) day following the expiration Date of Termination, provided, however, that if the seven-day revocation period described in Section 6.6 without revocation amounts of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to cannot be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and finally determined on or before such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined)day, the Company shall pay to the Executive additional amounts (on such day an estimate, as determined by the “Gross Up Amounts”) such that Executive, of the total minimum amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments such payments to which the Executive would is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been entitled due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code).
10.4 The Company also shall pay to the Executive all legal fees and expenses incurred by the Executive as a result of a termination which entitles the Executive to the Severance Payments (including all such fees and expenses, if any, incurred in disputing any such termination or in seeking in good faith to obtain or enforce any benefit or right provided by this Agreement or in connection with any tax audit or proceeding to the Excise Tax had not been imposed. For purposes extent attributable to the application of this Section 6.4, the term “Excise Tax” shall mean the tax imposed by Section 4999 of the Code to any payment or benefit provided hereunder). Such payments shall be made within five (5) business days after delivery of the Executive's written requests for payment accompanied with such evidence of fees and any similar tax that expenses incurred as the Company reasonably may hereafter be imposedrequire.
Appears in 1 contract
Sources: Employment Agreement (New York State Electric & Gas Corp)
Severance Payments. 6.1 If The Company shall make the following payments (the "Severance Payments") to the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is :
(i) by The Company shall pay the Company for Cause, Executive in one lump sum amount on the day that is eight (8) days after the date hereof US$67,500 (representing one-quarter of the Executive's base salary as of the Resignation Date); and
(ii) by reason of death or Disability or (iii) by Subject to the Executive without Good Reason, and acceleration provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executivebelow, the Company shall pay the Executive a total of US $202,500 (representing three-quarters of the payments described Executive's base salary as of the Resignation Date) in this Section 6.1 installments for a period of 12 months commencing with the Resignation Date (the “"Severance Payments”) Period"), such payments to be made on the 15th and 30th day of each month in addition the manner paid to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof)Executive immediately prior to the Resignation Date. The Executive’s employment Severance Payments shall be deemed less all applicable withholding for income and employment taxes. The parties agree that the Severance Payments shall be in lieu of any compensation or benefits otherwise payable to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if for periods following the Executive’s employment is terminated prior to a Change Resignation Date under the Employment Arrangements. Notwithstanding the foregoing, in Control without Cause at the direction of a Person who has entered into an agreement with event that during the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to Severance Period, (x) a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying defined below) shall occur or (y) the definition Company, through the sale of Good Reason) if the circumstance debt or event which constitutes Good Reason occurs equity at the direction one of such Person.
(A) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination more closings and in lieu of any severance benefit otherwise payable to the Executiveone or more financings, raises at least CDN $2,000,000 in gross proceeds, then upon either such event the Company shall promptly pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee all of the Board Severance Payments remaining to be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or in cash in one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination or (ii) the death of the Executive.
6.3 If the Executive’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, and any such exercise before the seven-day revocation period has expired without revocation of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is subject to the Excise Tax (as hereinafter defined), the Company shall pay to the Executive additional amounts (the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net of the Excise Tax shall equal the total amount of all Change in Control Payments to which the Executive would have been entitled if the Excise Tax had not been imposedsum. For purposes of this Section 6.43(a), the term “Excise Tax” a "Change in Control shall mean (I) the tax imposed acquisition by Section 4999 an individual, entity or group (a "Person") of beneficial ownership of any common shares of the Code Company if, after such acquisition, such Person beneficially owns 50% or more of the combined voting power of the then outstanding securities of the Company entitled to vote generally in the election of directors (the "Outstanding Company Voting Securities"); or (II) the consummation of a merger, amalgamation, consolidation, reorganization, recapitalization or share exchange involving the Company or a sale or other disposition of all or substantially all of the assets of the Company (a "Business Combination"), unless, immediately following such Business Combination, all or substantially all of the individuals and any similar tax that may hereafter be imposedentities who were the beneficial owners of the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the combined voting power of the then outstanding securities entitled to vote generally in the election of directors of the resulting or acquiring corporation in such Business Combination (which shall include, without limitation, a corporation which as a result of such transaction owns the Company or substantially all of the Company's assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership of the Outstanding Company Voting Securities immediately prior to such Business Combination.
Appears in 1 contract
Sources: Severance Agreement (Altarex Corp)
Severance Payments. 6.1 If a. Except as provided in Section 5(b), upon the Executivetermination of Employee’s employment by the Company other than for Cause prior to a Change in Control, the Employee shall be entitled to an amount equal to the aggregate of one times: (i) the annual rate of base salary then being paid to the Employee, plus (ii) the average of the past three years short term bonus pay, plus (iii) the Company’s portion of 12 months’ premiums under any health, disability and life insurance plan or program in which the Employee was entitled to participate immediately prior to the Termination Date (the aggregated amount, the “Severance Pay”), which shall be paid to Employee by the Company over a period of 12 months from the Termination Date in accordance with the Company’s regular payroll cycle, commencing on the first regular payroll date of the Company that occurs more than 60 days after the Termination Date (and including any installment that would have otherwise been paid on regular payroll dates during the period of 60 days following the Termination Date), provided the conditions specified in Section 5(c) have been satisfied.
b. Notwithstanding Section 5(a) and subject to the limitation in Section 5(e), if (i) the Employee’s employment is terminated following a Change in Control and during the term of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, and provided that the seven-day revocation period described in Section 6.6 has expired without revocation of the Release and Waiver by the Executive, the Company shall pay the Executive the payments described in this Section 6.1 (the “Severance Payments”) in addition to the payments and benefits described in Sections 5.1 and 5.2 hereof (but not Section 5.3 hereof). The Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Employee for Good Reason if Reason, and (ii) the Executive’s employment is terminated prior to Termination Date occurs within 24 months immediately following a Change in Control Control, the Employee shall receive 2.99 times the Severance Pay calculated in accordance with Section 5(a), which shall be paid to Employee by the Company in a lump sum on the [later of] 60th day following the Termination Date [or the closing on the event constituting the Change in Control], provided the conditions specified in Section 5(c) have been satisfied.
c. Notwithstanding the foregoing provisions of Section 5(a) and (b), the Company will not be obligated to make any payments to or on behalf of Employee under Section 5(a) and (b), as applicable, unless (i) Employee signs a release of claims in favor of the Company in a form as prepared by the Company (the “Release”) and delivered to Employee no later than five business days after the Termination Date, (ii) all applicable consideration periods and rescission periods provided by law with respect to the Release have expired without Cause at Employee rescinding the direction of a Person who has entered into an agreement Release, and (iii) Employee is in strict compliance with the Company terms of this Agreement as of the consummation dates of which the payments. The cessation of these payments will constitute be in addition to, and not as an alternative to, any other remedies at law or in equity available to the Company, including without limitation the right to seek specific performance or an injunction.
d. If, when the Employee’s termination of employment occurs, the Employee is a Change in Control or specified employee within the meaning of section 409A of the Code, and if the Executive terminates his employment Severance Pay would be considered deferred compensation under section 409A of the Code, and finally if an exemption from the six-month delay requirement of section 409A(a)(2)(B)(i) of the Code is not available, the Employee’s Severance Pay payments for the first six months following separation from service shall be paid to the Employee in a single lump sum on the first day of the seventh month after the month in which the Employee’s separation from service occurs.
e. In the event that the vesting, acceleration and payment of any equity awards or other compensation or benefits, together with Good Reason prior all other payments and the value of any benefit received or to be received by the Employee under this Agreement would result in all or a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction portion of such Person.
(Apayment being subject to excise tax under Section 4999 of the Code, then the amounts due under Section 5(b) In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any severance benefit otherwise payable to the Executive, that the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two times the Executive’s annual base salary as approved by the Compensation Committee of the Board to Employee shall be paid to the Executive (or, if the Executive’s annual base salary is not presented for approval at the Compensation Committee level, then as otherwise established by J. ▇▇▇▇ or one of its Subsidiaries) with respect to the year in which the Date of Termination occurs.
(B) Notwithstanding any provision of any Bonus Plan, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of either (i) any incentive compensation which has been allocated or awarded to the Executive for a completed year or other measuring period preceding the Date of Termination under any such Bonus Plan but has not yet been paid (pursuant to Section 5.2 hereof or otherwise), and (ii) a pro rata portion to the Date of Termination of the maximum bonus amount payable to the Executive under all Bonus Plans with respect to the year (or any portion thereof) in which the Date of Termination occurs, treating any and all performance goals under such Bonus Plans as having been met and calculated by multiplying such maximum bonus amount by a fraction, the numerator of which is the number of days in such year (or portion thereof) which elapsed to the Date of Termination and the denominator of which is the number of days in such year (or portion thereof).
(C) For a twenty-four (24) month period after the Date of Termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to the life, disability, accident and health insurance benefits which the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 6.1(C) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twenty-four (24) month period following the Executive’s termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
6.2 The payments provided for in Section 6.1 (other than Section 6.1(C)) hereof shall be made not later than the fifth (5th) day following the expiration of the seven-day revocation period described in Section 6.6 without revocation of the Release and Waiver by the Executive, unless the Company determines in good faith that such payments are required to be delayed for a period of six (6) months in order to satisfy the requirements of Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so advise the Executive, and such payments shall be made on the earlier of (i) six (6) months after the Date of Termination full payment or (ii) such lesser amount determined by the death Company in accordance with this Section 5(e) that would result in no portion of the Executive.
6.3 If payment being subject to excise tax under Section 4999 of the Executive’s Code (the “Excise Tax”), whichever of the foregoing amounts, taking into account the applicable Federal, state, and local employment is terminated taxes, income taxes, and the Excise Tax, results in the receipt by the Employee, on an after-tax basis, of the greatest amount of the payment notwithstanding that all or some portion of the payment may be taxable under Section 4999 of the Code. In the event the amounts due under Section are reduced, the amounts shall be reduced in the following order of priority: first, with respect to any amount that does not constitute the “deferral of compensation” under Section 409A of the Code and regulations promulgated thereunder, disregard the acceleration in the time of payment and then disregard the acceleration of vesting as a result of a Change in Control and during second, with respect to any amount that constitutes the term “deferral of this Agreement, unless such termination is (i) by the Company for Cause, (ii) by reason of death or Disability or (iii) by the Executive without Good Reason, all outstanding stock options held by the Executive for the purchase of shares of Common Stock of J. ▇▇▇▇ shall immediately become vested in full. The Executive agrees not to exercise the portion of such stock options for which vesting has been accelerated until the seven-day revocation period described in compensation” under Section 6.6 has expired without revocation 409A of the Release Code and Waiver by regulations promulgated thereunder, disregard the Executive, acceleration in the time of payment and any such exercise before then disregard the seven-day revocation period has expired without revocation acceleration of the Release and Waiver by the Executive shall be null and void. The Executive’s employment shall be deemed to have been terminated following vesting as a result of a Change in Control first with respect to Company funded amounts and then the Employee’s deferrals, in each case only to the extent necessary to satisfy (ii) above. All determinations required to be made under this Section 5(e) shall be made by a nationally recognized accounting firm that is the Company without Cause or by the Executive with Good Reason if the ExecutiveCompany’s employment is terminated outside auditor immediately prior to a Change in Control without Cause at the direction of a Person who has entered into an agreement with event triggering the Company the consummation of which will constitute a Change in Control or if the Executive terminates his employment with Good Reason prior to a Change in Control (determined by treating a Potential Change in Control as a Change in Control in applying the definition of Good Reason) if the circumstance or event which constitutes Good Reason occurs at the direction of such Person.
(i) If any payment or benefit made available to the Executive in connection with a Change in Control (including, without limitation, any payment made pursuant to any long-term incentive plans, stock option or equity participation right plans) or termination of the Executive’s employment following a Change in Control (in either category, a “Change in Control Payment”) is payments that are subject to the Excise Tax (the “Accounting Firm”). The Company shall cause the Accounting Firm to provide detailed supporting calculations of its determinations to the Company and Employee. Notice must be given to the Accounting Firm within 15 business days after an event entitling Employee to an amount due under this Agreement. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The Accounting Firm’s determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). For the purposes of all calculations under Section 280G of the Code and the application of this Section 5.1, all determination as hereinafter definedto present value shall use 120 percent of the applicable Federal rate (determined under Section 1274(d) of the Code) compounded based on the nature of the payment, as in effect on the Date of Termination, but if not otherwise specified, compounded on a semiannual basis. The determination by the Accounting Firm shall be final and binding on the Company and the Employee.
f. If Employee’s employment with the Company is terminated by the Company for Cause or for any reason not covered by Section 5(a) or 5(b), then the Company shall pay to Employee only his base salary and any accrued but unused vacation or PTO earned through the Executive additional amounts Termination Date.
g. In addition to the benefits otherwise provided in Section 5, the Employee shall be entitled to the following benefits and payments upon the Employee’s termination of employment: (i) the “Gross Up Amounts”) such that the total amount of all Change in Control Payments net payment of the Excise Tax shall equal Employee’s base salary and any other form or type of compensation earned, vested and payable through the total amount Date of Termination; (ii) the right to receive all Change in Control Payments benefits to which the Executive would have been entitled if Employee is vested on the Excise Tax had not been imposed. For purposes Date of this Section 6.4, Termination in accordance with the term “Excise Tax” shall mean terms under the tax imposed by Section 4999 Company pension and welfare benefit plans or any successor of the Code such plan and any similar tax that may hereafter be imposedother plan or agreement relating to retirement benefits; and (iii) the right to exercise and to receive all rights in which the Employee is vested on the Date of Termination, in accordance with the terms of all awards under any Company stock purchase and stock incentive plans or programs, or any successor to any such plans or programs.
Appears in 1 contract
Sources: Executive Severance Agreement (Alerus Financial Corp)