Severance. Subject to the Executive's continued compliance with his obligations under this Agreement, the Company shall have no obligation to the Executive other than: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.
Appears in 4 contracts
Sources: Employment Agreement (Intelsat LTD), Employment Agreement (Intelsat LTD), Employment Agreement (Intelsat LTD)
Severance. Subject Except in circumstances in which the Employee would be entitled to payments and benefits in connection with a Change of Control as provided in Section 4 below, in the event that during the term of this Agreement the Employee has a Separation from Service as a result of the Company terminating the Employee’s employment without Cause or the Employee terminating the Employee’s employment for Good Reason:
(a) The Company shall pay to the Executive's continued compliance with his obligations under this Agreement, the Company shall have no obligation to the Executive other than: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of Employee an amount equal to the sum of (i) eighteen (18) months of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as Employee’s base monthly salary in effect on the date the Employee’s employment terminates, (ii) one hundred fifty percent (150%) of the Employee’s Average Annual Cash Bonus, plus (iii) if approved by the Compensation Committee of the Board, a Pro Rata Portion of the Employee’s Annual Cash Bonus, if any. Subject to Section 9 below, payment shall be made in a lump sum sixty (60) days following the Employee’s Separation from Service.
(b) The Employee and such of the Employee’s dependents as are participating as of the date of termination), 50% of which the Employee’s termination (“Covered Dependents”) shall be paid entitled to continue to participate in the major medical and dental benefit plans sponsored and maintained by the Company from time to time for its employees on the same basis and at the same cost to the Executive upon the first business day following the six month anniversary Employee as active employees of the date of termination of employment Company and the remainder of which shall be paid to the Executive in equal installments each month thereafter their dependents for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount maximum period equal to the product number of (xmonths for which the Company is obligated to pay the Employee’s base salary pursuant to Section 3(a) above. Should the multiple set forth on ATTACHMENT 1 and (y) Employee for himself or herself or his or her Covered Dependents elect to continue participation in the sum Company’s plans, the end of such continued participation, rather than the termination of the Executive's annual base salary Employee’s employment, shall be considered the qualified event for purposes of the Employee’s and the Executive's target bonus amount (eachCovered Dependents’ right to elect COBRA continuation coverage at their own expense. The foregoing notwithstanding, as in effect as of immediately prior to the Closing), (B) in lieu right of the benefit set forth Employee to continue to participate in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares such programs shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect terminate as of the date of termination). In the event that the Executive Employee is first eligible to receive participate in a major medical benefit program maintained by a successor employer, and the severance benefits provided for by right of the Employee’s dependents to participate in such programs shall terminate as of the date that such dependents are first eligible to participate in an alternative employer sponsored major medical benefit program. As a condition to the Employee’s rights under this Section 4.4(a3(b), the Executive shall not be Employee agrees to promptly notify the Company if either the Employee or his or her dependents who continue to participate in the Company’s major medical and dental benefit plans become eligible to receive severance benefits under any other Company plan, policy, or agreementfor alternative employer sponsored major medical benefit coverage.
Appears in 4 contracts
Sources: Severance and Change of Control Agreement (Regency Centers Corp), Severance and Change of Control Agreement (Regency Centers Corp), Severance and Change of Control Agreement (Regency Centers Corp)
Severance. Subject (a) If the Company terminates Employee’s employment with the Company without Cause in accordance with Section 6(c) prior to the Executive's continued compliance with his obligations under this Agreementexpiration of the Initial Term, the Company shall have no obligation to the Executive other than: (i) the pay Employee a severance payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum twelve months of the Executive's annual Employee’s Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of on the date of termination), 50% of which shall be paid subject to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), subsections (c) and (d); .
(vb) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the provisions date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, immediate payout of benefits previously accrued under the Severance Payment will be made on the Company's Supplemental Executive Retirement Plan ’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and (vi) executive outplacement benefits, except agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as otherwise required by law or Exhibit B by the terms of 45th day following the Company's benefit plans Employee’s separation from service and not revoking the release within the seven (excluding severance plans); PROVIDED7) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, that the Severance Payment will be paid in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal second calendar year. Employee’s right to the product Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum this Agreement. If Employee breaches any of the Executive's annual base salary and the Executive's target bonus amount (eachhis obligations in Sections 8-11 of this Agreement, as in effect as of he will immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned return to the Company in exchange for a refund any portion of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect Severance Payment that has been paid to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal him pursuant to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement7.
Appears in 4 contracts
Sources: Employment Agreement (Alpha Modus Holdings, Inc.), Employment Agreement (Alpha Modus Holdings, Inc.), Employment Agreement (Insight Acquisition Corp. /DE)
Severance. Subject to If the Executive terminates this Agreement and his employment with the Company for Good Reason or if the Executive's continued compliance ’s employment with his obligations under this Agreement, the Company shall have no obligation is terminated by the Company for any reason other than for Cause, including non-renewal of this Agreement by the Company (but not including any circumstances that would give rise to a payment to the Executive other than: (ipursuant to Section 3.3(a) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iiihereof), the Company shall pay severance to the Executive a lump sum cash as follows:
(i) severance pay in an amount equal to 1.0 times the product Executive’s then-current annual base salary, such amount to be paid in equal installments over the 12-month period immediately following the date of termination in accordance with the Company’s normal payroll practices with such installments to be no less frequent than monthly and to commence on the first payroll date following the date of termination; and
(xii) all accrued but unpaid bonuses for any completed fiscal year and vacation pay, expense reimbursement and other benefits due to the multiple set forth on ATTACHMENT 1 Executive under any Company-provided benefit plans, policies and arrangements, with such accrued but unpaid bonuses for any completed fiscal year and vacation pay and expense reimbursements payable no later than thirty (y30) days after the sum date of termination (sooner to the extent the bonus is payable prior to such time) and any other benefits payable in accordance with the applicable terms of the Executive's annual base salary benefit plans, policies and arrangements; and
(iii) if the Executive elects continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), then the Company each month will pay for the Executive's target bonus amount ’s COBRA premiums for such coverage (each, as at coverage levels in effect as of immediately prior to the Closing), Executive’s termination) until the earlier of: (A) the expiration of a period of twelve (12) months from the date of termination or (B) in lieu the date upon which the Executive becomes covered under similar plans of the benefit any subsequent employer or is otherwise ineligible for COBRA. All payments set forth in clause the foregoing items (ivi) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned and (iii) hereof are defined as the “Severance Indemnity.” The Executive’s receipt of the foregoing Severance Indemnity is conditioned upon his execution and delivery to the Company in exchange for of a refund separation and release agreement acceptable to the Company governing the termination of the full purchase price within 30 days following such return employment relationship between the Executive and (C) in lieu the Company and the Executive’s release of all claims against all members of the benefit set forth in clause Avadel Group of Companies and their employees, officers, directors and contractors, and allowing the applicable revocation period required by law to expire without revoking or causing revocation of same, within sixty (iv60) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by Executive’s employment. Any Severance Indemnity payments that the Executive with respect would otherwise be entitled to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but receive prior to the first anniversary of time the Closing, aforementioned release becomes effective and irrevocable shall be accumulated and paid in lieu of a lump sum after the benefit set forth in clause (iii) release becomes effective and irrevocable; and if the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay permissible period during which the Executive over a 24-month may execute and deliver the release and during which the applicable revocation period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event could expire spans more than one calendar year, any payments that the Executive is eligible entitled to receive during such period shall be accumulated and paid in a lump sum only in the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementsubsequent calendar year.
Appears in 3 contracts
Sources: Employment Agreement (Avadel Pharmaceuticals PLC), Employment Agreement (Avadel Pharmaceuticals PLC), Employment Agreement (Avadel Pharmaceuticals PLC)
Severance. (a) Subject to the Executivelimitations set forth in Section 13, if the Employee's continued compliance with his employment is terminated by the Subsidiary without Substantial Cause (including, without limitation, upon termination of this Agreement following notice thereof by the Company or the Subsidiary pursuant to Section 3 hereof) or by the Employee for Good Reason, then, without further liability of the Subsidiary or the Company, except for their obligations pursuant to this Section 10(a) and their obligations to pay or provide any salary and expenses accrued to the termination date, any unpaid bonus referred to in Section 4(b) hereof, any Closing Bonus (whether payable before or after such termination of employment) pursuant to Section 4(c) hereof, and such rights and benefits of participation of or in respect of the Employee under this Agreementemployee benefit plans, programs and arrangements of the Company, the Company shall have no obligation to Subsidiary and their Affiliates, in accordance with the Executive other than: terms and provisions of such plans, programs and arrangements, (i) the payment of Employee shall be entitled to severance compensation for the Executive's earned and unpaid compensation through the effective date of Severance Period (as hereinafter defined) following any such termination, payable in equal monthly installments, subject to withholding and other applicable taxes, at an annual rate equal to the Employee's base salary for the year of termination, as such annual rate is increased from year to year in accordance with Section 4(a) hereof; (ii) as additional severance compensation following any such termination, the payment of any deferred bonus, subject Employee shall be entitled to the provisions bonus compensation referred to in Section 4(b) hereof for the Severance Period, payable as and when ordinarily determined for the applicable year, with a bonus not less than seventy-five percent (75%) of Section 409A his rate of annual base salary in effect for the Codeyear of termination; (iii) the payment of an amount equal to Employee and the sum of the ExecutiveEmployee's annual Base Salary plus the Executive's Maximum Bonus Amount spouse and Dependent Children (as in effect as of the date of termination), 50% of which hereinafter defined) shall be paid entitled to the Executive upon the first business day following the six month anniversary of medical and dental benefits as provided immediately prior to the date of termination of employment and the remainder of which shall be paid to continue for the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.Severance
Appears in 3 contracts
Sources: Employment Agreement (Statia Terminals Group Nv), Employment Agreement (Statia Terminals Group Nv), Employment Agreement (Statia Terminals Group Nv)
Severance. Subject (a) If the Company terminates Employee’s employment with the Company without Cause in accordance with Section 6(c) prior to the Executive's continued compliance with his obligations under this Agreementexpiration of the Initial Term, the Company shall have no obligation pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the Executive other than: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to subsections (c), (d), and (e).
(b) If during the provisions Term of this Agreement there is a CC Termination upon a Change in Control or within one year thereafter, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 409A of the Code; (iii7(a)) the payment of payable in a lump sum in cash in an amount equal to the sum of of: (i) the Executive's annual Employee’s Base Salary plus the Executive's Maximum Bonus Amount (as in effect as on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of terminationsuch CC Termination), 50% of which shall be paid and (ii) the Employee’s Average Annual Bonus, subject to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; subsections (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(bc), (cd) and (de).
(c) Subject to Section 7(c), any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (v60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Severance Payment will be made on the Company's Supplemental Executive Retirement Plan ’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and (vi) executive outplacement benefits, except agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as otherwise required by law or Exhibit B by the terms of 45th day following the Company's benefit plans Employee’s separation from service and not revoking the release within the seven (excluding severance plans); PROVIDED7) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, that the Severance Payment will be paid in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal second calendar year. Employee’s right to the product Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum this Agreement. If Employee breaches any of the Executive's annual base salary and the Executive's target bonus amount (eachhis obligations in Sections 8-11 of this Agreement, as in effect as of he will immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned return to the Company in exchange for a refund any portion of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect Severance Payment that has been paid to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal him pursuant to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement7.
Appears in 3 contracts
Sources: Employment Agreement (Hempacco Co., Inc.), Employment Agreement (Hempacco Co., Inc.), Employment Agreement (Viking Energy Group, Inc.)
Severance. Subject to the Executive's continued compliance with his obligations under this Agreement, the Company shall have no obligation to the Executive other than: (i) the payment Except as provided in Section 5.6(k)(iii), Seller shall be solely responsible for any severance benefits payable under applicable Law, Collective Bargaining Agreement or under Seller’s severance policies set forth on Section 5.6(k)(i) of the Executive's earned and unpaid compensation through Seller Disclosure Letter to any Business Employee who does not transfer employment to Purchaser or its Subsidiaries or the effective date of such termination; applicable PEO for any reason.
(ii) Seller shall reimburse Purchaser for any severance benefits payable by Purchaser and its affiliates under applicable Law, Collective Bargaining Agreement or under Seller’s severance policies set forth on Section 5.6(k)(ii) of the payment Seller Disclosure Letter to any Business Employee (other than an Offer Employee) who transfers employment to Purchaser or one of its affiliates or the applicable PEO by operation of any deferred bonusTransfer Regulations or other applicable Laws and whose employment is terminated by Purchaser or its affiliate within ninety (90) days following the Closing Date (it being understood that, subject to if applicable Law or any Benefit Plan or contract with the provisions employee requires notice, such Business Employee’s employment shall be deemed terminated within ninety (90) days following the Closing Date if such individual receives notice of Section 409A of termination within ninety (90) days following the Code; Closing Date and terminates employment on the earliest possible date permitted by such notice requirement).
(iii) the payment of an amount equal to the sum Purchaser will reimburse Seller for any severance benefits payable by Seller and its affiliates under applicable Law or under Seller’s severance policies set forth on Section 5.6(k)(iii) of the Executive's annual Base Salary plus Seller Disclosure Letter arising from (x) Purchaser’s or its affiliate’s failure to make an offer of employment to, or accept or continue the Executive's Maximum Bonus Amount employment of, any Pre-Selected Employee (whether or not such Pre-Selected Employee is an Offer Employee, and including as in effect as a result of a Pre-Selected Employee who accepts Purchaser’s offer of employment but who fails to satisfy Purchaser’s ordinary course hiring criteria), (y) from Purchaser’s failure to make an offer of employment to any Pre-Selected Employee (whether or not such Pre-Selected Employee is an Offer Employee) that complies with Section 5.6(f) (each of the date of terminationPre-Selected Employees covered by clause (x) or clause (y), 50% a “Section 5.6(k)(iii) Pre-Selected Employee”) or (z) Purchaser’s election to cause the applicable PEO to make an offer of which shall be paid employment to any Offer Employee as contemplated by Section 5.6(f), if as a result thereof any Pre-Selected Employee who but-for such election would have transferred employment to Purchaser or one of its Subsidiaries pursuant Section 5.6(e) does not transfer employment to Purchaser or its Subsidiaries or affiliates or the Executive upon applicable PEO; provided that, with respect to each of clauses (x), (y) and (z), Seller or its affiliate must terminate the first business day employment of such individual within ninety (90) days following the six month anniversary of the date of Closing Date to be eligible for reimbursement (it being understood that a termination of employment and the remainder of which shall be paid deemed to have occurred within ninety (90) days following the Executive in equal installments each month thereafter for six months; Closing Date (A) if applicable Law or any Benefit Plan or contract with the employee requires notice, and such Pre-Selected Employee receives notice of termination within ninety (90) days following the Closing Date and terminates employment on the earliest possible date permitted by such notice requirement and (B) if such Pre-Selected Employee is retained by Seller and its affiliates to provide services to Purchaser under the Transition Services Agreement and is terminated within ninety (90) days following the end of the applicable transition period (or such longer notice period required by applicable Law or contract with the employee)).
(iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination If any Transferred Business Employee is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible entitled to receive severance benefits or similar payments under applicable Law or any other Company planapplicable Collective Bargaining Agreement upon the termination of his or her employment with Seller (irrespective of his or her continued employment with Purchaser or one of its affiliates or the applicable PEO), policyPurchaser and Seller shall, or agreementand Purchaser shall use its reasonable best efforts to cause the applicable PEO to, cooperate in good faith to minimize the amount of any severance payable (including as contemplated by Section 5.6(k)(iv) of the Seller Disclosure Letter).
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Broadcom Inc.), Asset Purchase Agreement (Symantec Corp)
Severance. (a) Subject to the Executivelimitations set forth in Section 13, if the Employee's continued compliance with his employment is terminated by the Subsidiary without Substantial Cause (including, without limitation, upon termination of this Agreement following notice thereof by the Company or the Subsidiary pursuant to Section 3 hereof) or by the Employee for Good Reason, then, without further liability of the Subsidiary or the Company, except for their obligations pursuant to this Section 10(a) and their obligations to pay or provide any salary and expenses accrued to the termination date, any unpaid bonus referred to in Section 4(b) hereof, any Closing Bonus (whether payable before or after such termination of employment) pursuant to Section 4(c) hereof, and such rights and benefits of participation of or in respect of the Employee under this Agreementemployee benefit plans, programs and arrangements of the Company, the Company shall have no obligation to Subsidiary and their Affiliates, in accordance with the Executive other than: terms and provisions of such plans, programs and arrangements, (i) the payment of Employee shall be entitled to severance compensation for the Executive's earned and unpaid compensation through the effective date of Severance Period (as hereinafter defined) following any such termination, payable in equal monthly installments, subject to withholding and other applicable taxes, at an annual rate equal to the Employee's base salary for the year of termination, as such annual rate is increased from year to year in accordance with Section 4(a) hereof; (ii) as additional severance compensation following any such termination, the payment of any deferred bonus, subject Employee shall be entitled to the provisions bonus compensation referred to in Section 4(b) hereof for the Severance Period, payable as and when ordinarily determined for the applicable year, with a bonus not less than seventy-five percent (75%) of Section 409A his rate of annual base salary in effect for the Codeyear of termination; (iii) the payment of an amount equal to Employee and the sum of the ExecutiveEmployee's annual Base Salary plus the Executive's Maximum Bonus Amount spouse and Dependent Children (as in effect as of the date of termination), 50% of which hereinafter defined) shall be paid entitled to the Executive upon the first business day following the six month anniversary of medical and dental benefits as provided immediately prior to the date of termination of employment and the remainder of which shall continue for the Severance Period (which benefits shall be paid terminated sooner to the Executive extent provided by another employer and shall be subject to coordination with Medicare payments in equal installments each month thereafter for six monthsaccordance with the terms of the applicable benefit plan); (iv) treatment of the New Parent Restricted Shares (andEmployee shall be entitled to receive, during the Severance Period, the benefits described in Section 4(d) hereof and the automobile rights and perquisites described in Section 4(e) hereof, PROVIDED, HOWEVER, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject any such benefit is not available to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.the
Appears in 3 contracts
Sources: Employment Agreement (Statia Terminals Group Nv), Employment Agreement (Statia Terminals Group Nv), Employment Agreement (Statia Terminals Group Nv)
Severance. Subject to (a) If the Executive's continued compliance employment hereunder is terminated during the Employment Term (1) by the Company other than for Cause and not due to disability (as determined in good faith and consistent with his obligations under the Company's long term disability policy) or death, (2) by the Executive for Good Reason (as defined in paragraph (b) of this AgreementSection 7), or (3) upon non-renewal by the Company, the Executive shall be entitled to receive as severance, and the Company shall have no obligation pay, an amount equal to two (2) times the Executive other than: sum of (x) the Executive's then current annual salary and (y) the greater of (i) the payment of the Executive's earned most recent annual incentive bonuses and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum arithmetic mean of the Executive's annual Base Salary plus incentive bonuses for the Executive's Maximum Bonus Amount two (as 2) most recent years, payable in effect as a lump sum on the eighth day after the date the Executive signs the release referenced below in favor of the date of termination)Company and its subsidiaries. In addition, 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (eachemployment is terminated other than for Cause or death, as or in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive terminates his employment for Good Reason, as defined herein, the Executive shall be entitled to continued healthcare coverage equivalent to the coverage received while employed by the Company, for a period of one (1) year from the date of termination or until the Executive receives coverage from a subsequent employer, whichever event occurs sooner; provided, however, that, thereafter, he shall be entitled to elect to continue his health benefits pursuant to Section 4980B of the Internal Revenue Code of 1986, as amended ("COBRA"). If the Executive's employment is eligible to receive the severance benefits provided for by terminated otherwise than as described in this Section 4.4(a)7, the Executive shall not be eligible entitled to receive any severance, termination pay or similar compensation or benefits. As a condition of receiving any severance benefits for which he otherwise qualifies under this Section 7, the Executive agrees to execute, deliver and not revoke (within the time period permitted by applicable law) a general release of the Company and its subsidiaries and affiliates and their respective officers, directors, employees and owners from any and all claims, obligations and liabilities of any kind whatsoever arising from or in connection with the Executive's employment or termination of employment with the Company or this Agreement (including, without limitation, civil rights claims), in such form as is attached hereto as Exhibit A. The Executive acknowledges and agrees that, except as specifically described in this Section 7, all of the Executive's rights to any compensation (other than base salary earned through the date of termination of employment), benefits, bonuses or severance from the Company planor its subsidiaries or affiliates after termination of the Employment Term shall cease upon such termination.
(b) For purposes of this Agreement, policy"Good Reason" shall mean the occurrence, without the Executive's consent, of any of the following events (without the Executive's express written consent): (i) a reduction by the Company in the Executive's base salary stated in Section 4(a) or a reduction in the target bonus stated in Section 4(c), (ii) a diminution in the Executive's duties with respect to the Company, or agreement(iii) any material breach of this Agreement by the Company. For the avoidance of doubt, termination by the Executive for Good Reason is conditioned on the Executive's delivery of a written notice of resignation delivered to the Company not less than thirty (30) days prior to the effective date of such resignation, as set forth in Section 6.
Appears in 3 contracts
Sources: Employment Agreement (Friedmans Inc), Employment Agreement (Friedmans Inc), Employment Agreement (Friedmans Inc)
Severance. Subject In the event that Employee is subject to a Change in Control Involuntary Termination, Employee shall be entitled to receive severance benefits as follows: (A) a lump sum cash severance payment equal to [one (1) times (if Employee is not the CEO)] [two (2) times (if Employee is the CEO)] the higher of (1) the base salary which Employee was receiving immediately prior to the Executive's continued compliance with his obligations under this Agreement, Change in Control or (2) the Company shall have no obligation base salary which Employee was receiving immediately prior to the Executive other than: (i) the Change in Control Involuntary Termination, which payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to on the Executive upon the first business sixtieth (60th) day following the six month anniversary Change in Control Involuntary Termination; (B) a lump sum cash payment equal to [one (1) times (if Employee is not the CEO)] [two (2) times (if Employee is the CEO)] Employee’s Target Annual Bonus; and (C) payment by the Company of the date full cost of termination of employment the health insurance benefits provided to Employee and the remainder of which shall be paid Employee’s spouse and dependents, as applicable, immediately prior to the Executive Change in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject Control pursuant to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (excluding severance plans“COBRA”) or other applicable law through the earlier of the end of the [twelve (12) month (if Employee is not the CEO)] [twenty-four (24) month (if Employee is the CEO)] period following the Change in Control Involuntary Termination date or the date upon which Employee is no longer eligible for such COBRA or other benefits under applicable law. The benefits to be provided under clauses (a)(i) and (a)(ii) shall be paid on the sixtieth (60th) day following Employee’s termination of employment ; PROVIDEDexcept that any payments under clause (a)(ii)(C) shall be paid on a monthly basis commencing on the sixtieth (60th) day following Employee’s termination of employment (subject in all cases to Employee’s release of claims against the Company as set forth in Section 1(a)). Notwithstanding the foregoing, that in the event the Board of Directors concludes in its reasonable judgment that such termination the provision of subsidized COBRA benefits to Employee is within six months following likely to cause the Closing, (A) in lieu Company to become subject to excise tax as a result of the benefit set forth in clause Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (iiithe “Healthcare Reform Act”), the Company shall pay the Executive Employee a lump sum monthly amount in cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum amount of the Executive's annual base salary and COBRA subsidy during the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to period the Company in exchange is obligated to provide subsidized COBRA benefits to Employee. In addition, Employee shall receive payment(s) for a refund of the full purchase price within 30 days following such return all salary, bonuses and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect unpaid vacation accrued as of the date of terminationEmployee’s termination of employment and up to three (3) months of outplacement services not to exceed $5,000 per month (with a provider and in a program selected by the Employee. provided Employee commences such services within ninety (90) days of Employee’s Change in Control Involuntary Termination date). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.
Appears in 3 contracts
Sources: Management Continuity Agreement (Assertio Therapeutics, Inc), Management Continuity Agreement (Depomed Inc), Management Continuity Agreement (Depomed Inc)
Severance. Subject (a) If Employee’s employment is terminated by the Company without Cause or by Employee for Good Reason within twenty-four (24) months following a Change in Control, then subject to the Executive's requirements of this Section 2 and Employee’s continued compliance with his obligations Section 3, Employee shall be entitled to receive, in lieu of any severance benefits to which Employee may otherwise be entitled, including under this Agreementany Other Arrangement (as defined below), the Company shall have no obligation to the Executive other than: benefits provided below:
(i) The Company shall pay to Employee (A) his or her fully earned but unpaid base salary, when due, through the payment date of termination at the rate then in effect, (B) his or her accrued but unpaid vacation or paid time off through the date of termination, when due, plus (C) all other amounts or benefits to which Employee is entitled under any compensation, retirement or benefit plan or practice of the Executive's earned and unpaid compensation through Company at the effective date time of termination in accordance with the terms of such termination; plans or practices, including, without limitation, any continuation of benefits required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) or applicable law (the “Accrued Obligations”);
(ii) the payment of any deferred bonus, subject Employee shall be entitled to the provisions of Section 409A of the Code; (iii) the payment of receive severance pay in an amount equal to the sum of:
(A) An amount equal to twelve (12) months of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (Employee’s monthly base salary as in effect immediately prior to the date of termination, plus
(B) An amount equal to the greater of (1) Employee’s maximum target bonus for the fiscal year during which the date of termination occurs or (2) Employee’s maximum target bonus for the fiscal year during which the Change in Control occurs, payable, in the case of both clauses (A) and (B), in a lump sum within ten (10) days following the effective date of Employee’s Release, but in no event later than two and one-half (2 ½) months following the last day of the calendar year in which the date of Employee’s termination of employment occurs;
(iii) Employee shall be entitled to receive a lump sum cash payment equal to (A) twelve (12) multiplied by (B) the monthly premium Employee would be required to pay for continuation coverage pursuant to COBRA for Employee and his or her eligible dependents who were covered under the Company’s health plans as of the date of Employee’s termination such that Employee’s premiums are the same as for active employees (calculated by reference to the premium as of the date of termination) (provided that Employee shall be solely responsible for all matters relating to his or her continuation of coverage pursuant to COBRA, including, without limitation, his or her election of such coverage and his or her timely payment of premiums), 50% of which payment shall be paid to the Executive upon the first business day within ten (10) days following the six month anniversary effective date of Employee’s Release, but in no event later than two and one-half (2 ½) months following the last day of the calendar year in which the date of Employee’s termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six monthsoccurs; and
(iv) treatment The vesting and/or exercisability of any outstanding unvested portions of Employee’s Stock Awards the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) vesting of which is solely time-based and (d); (v) not subject to the provisions satisfaction of Section 409A a performance condition shall be automatically accelerated on the effective date of Employee’s Release. In addition, Employee’s Stock Awards may be exercised by Employee (or Employee’s guardian or legal representative) until (A) the Codedate that is nine (9) months following the date of termination, immediate payout or (B) such longer period as may be specified in the applicable stock award agreement; provided, however, that in no event shall any Stock Award remain exercisable beyond the original outside expiration date of benefits previously accrued under such Stock Award; provided, however, that, any Stock Awards that vest in whole or in part based on the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or attainment of performance-vesting conditions shall be governed by the terms of the applicable Stock Award agreement. Employee’s vested Stock Awards shall be governed by the terms and conditions of the Stock Award agreements and the Company's benefit plans (excluding severance plans); PROVIDED’s equity plan under which such Stock Awards were granted. Notwithstanding the foregoing, that in the event that the Stock Award agreement or the equity plan pursuant to which the Stock Awards were granted provides for more favorable treatment of Employee’s Stock Awards, nothing in this Agreement is intended to limit Employee’s right to such termination is within six months following the Closing, (A) more favorable treatment as provided in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on Stock Award agreement or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company equity plan, policy, or agreement.
Appears in 3 contracts
Sources: Change in Control Severance Agreement (OmniAb, Inc.), Change in Control Severance Agreement (OmniAb, Inc.), Change in Control Severance Agreement (OmniAb, Inc.)
Severance. Subject If, during the Term, other than within twelve (12) months following a Change in Control, the Executive experiences a Termination of Employment, either (a) by the Employer without Cause pursuant to Section 4.1(a)(2); or (b) by the Executive for Good Reason pursuant to Section 4.1(b)(2), then, upon his Termination of Employment, the Employer will pay in lieu of any severance payment applicable under any general severance policy (which Executive acknowledges he is not eligible for due to this Agreement) severance to the Executive in an amount equal to one (1) times his Annual Base Salary then in effect (the “Severance Pay”), with such amount payable in substantially equal cash installments not less frequently than monthly over the twelve-month period following Executive's continued compliance ’s Termination of Employment (the “Severance Payment Period”). So long as the Executive complies with his obligations under the requirements of Sections 5.2, 5.3, 6, 7 and 8 of this Agreement, the Company Severance Pay shall have no obligation to commence on the Executive other than: first payroll period (ithe “Initial Payment”) occurring on or after the 60th day following the Executive’s Termination of Employment (the “Severance Delay Period”). The Initial Payment shall include payment for any payroll periods which occur during the Severance Delay Period and the remaining Severance Pay shall continue until the expiration of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, Severance Payment Period subject to the provisions of Section 409A of this Agreement. If the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which Executive shall be paid entitled to receive Severance Pay pursuant to this Section 4.2, then, in addition to any Severance Pay payable to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid pursuant to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in this Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii)4.2, the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (eachEmployer shall, until such time as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible for Medicare, or some similar health care coverage provided by state or federal governments, or eligible to receive participate in or be covered by the severance benefits provided health plans of any employer other than the Employer, pay on the Executive’s behalf, or reimburse the Executive, for the cost of COBRA premiums incurred by this Section 4.4(a), the Executive shall not be eligible for his individual health coverage for the twelve (12) months following Termination of Employment (with any additional amounts incurred to receive severance benefits under any other Company plan, policy, or agreement.procure family coverage being the sole responsibility of the
Appears in 3 contracts
Sources: Employment Agreement (Community First Inc), Employment Agreement (Community First Inc), Employment Agreement (Community First Inc)
Severance. (a) Subject to Section 6(b) below, if Executive’s employment is terminated prior to the Executive's continued compliance with his obligations under this Agreement, end of the Term by the Company without Cause or by Executive for Good Reason, Executive shall have no obligation be entitled to the Executive other than: receive a severance payment equal to (i) the payment 12 months of the Executive's earned Base Salary, and unpaid compensation through the effective date of such termination; (ii) 75% of the target Annual Bonus for the compensation year in which such termination occurs. Such severance payment of any deferred bonusshall be paid in 12 equal monthly payments commencing with the first payroll following such termination, subject provided the Executive has executed and delivered to the provisions Company, and has not revoked a general release of the Company, its parents, subsidiaries and affiliates and each of its officers, directors, employees, agents, successors and assigns, and such other persons and/or entities as the Company may determine, in a form reasonably acceptable to the Company. Such general release shall be delivered on or about the date of termination and must be executed within fifty-five (55) days of termination.
(b) If Executive’s employment is terminated prior to the end of the Term by the Company without Cause or by Executive for Good Reason, and such termination occurs within six (6) months prior to a Change in Control or within twelve (12) months after the Change in Control, Executive shall be entitled to receive, in addition to any severance pursuant to Section 6(a) above, an additional 12 months of Executive’s Base Salary, and an additional 25% of the target Annual bonus.
(c) Notwithstanding the foregoing, (i) any payment(s) of “nonqualified deferred compensation” (within the meaning of Section 409A of the CodeCode and the regulations and official guidance issued thereunder (“Section 409A”)) that is/are required to be made to Executive hereunder as a “specified employee” (as defined under Section 409A) as a result of such employee’s “separation from service” (within the meaning of Section 409A) shall be delayed for the first six (6) months following such separation from service (or, if earlier, the date of death of the specified employee) and shall instead be paid upon expiration of such six (6) month delay period; and (iiiii) for purposes of any such payment that is subject to Section 409A, if the Executive’s termination of employment triggers the payment of an amount equal “nonqualified deferred compensation” hereunder, then the Executive will not be deemed to have terminated employment until the Executive incurs a “separation from service” within the meaning of Section 409A.
(d) If Executive's employment is terminated prior to the sum end of the Executive's annual Base Salary plus Term by the Executive's Maximum Bonus Amount (as Company without Cause or by Executive for Good Reason, and if Executive is eligible for and elects to continue to participate in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan ’s medical and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's dental benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii)programs pursuant to COBRA, the Company shall will continue to pay the same portion of Executive's medical and dental insurance premiums under COBRA as during active employment (for Executive a lump sum cash amount equal to and eligible spouse and dependents) until the product of earlier of: (x1) 12 months from Executive's cessation from employment; or (2) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance for medical and/or dental insurance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementfrom another employer.
Appears in 3 contracts
Sources: Employment Agreement (Moleculin Biotech, Inc.), Employment Agreement (Moleculin Biotech, Inc.), Employment Agreement (Moleculin Biotech, Inc.)
Severance. (a) Subject to the Section 6(b) below, if Executive's continued compliance with his obligations under this Agreement, employment is terminated by the Company without Cause or by Executive for Good Reason, Executive shall have no obligation be entitled to receive a severance payment equal to 24 months of Executive's Base Salary, payable in a lump sum, but only if Execute first executes, and then does not revoke as may be allowed by law, a separation and release agreement in a form chose by the Company in its sole discretion.
(b) If Executive's employment is terminated by the Company without Cause or by Executive for Good Reason, and such termination occurs within six (6) months prior to a Change in Control (as defined under the Plan) or within twelve (12) months after the Change in Control, Executive shall be entitled to receive, in addition to any severance pursuant to Section 6(a) above, an additional 6 months of Executive's Base Salary (for a total of 30 months) in addition to the Executive other than: compensation of Section 2(d), but only if Execute first executes, and then does not revoke as may be allowed by law, a separation and release agreement in a form chose by the Company in its sole discretion.
(c) Notwithstanding the foregoing, (i) any payment(s) of "nonqualified deferred compensation" (within the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions meaning of Section 409A of the CodeCode and the regulations and official guidance issued thereunder ("Section 409A")) that is/are required to be made to Executive hereunder as a "specified employee" (as defined under Section 409A) as a result of such employee's "separation from service" (within the meaning of Section 409A) shall be delayed for the first six (6) months following such separation from service (or, if earlier, the date of death of the specified employee) and shall instead be paid upon expiration of such six (6) month delay period; and (iiiii) for purposes of any such payment that is subject to Section 409A, if the Executive's termination of employment triggers the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination)"nonqualified deferred compensation" hereunder, 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, then the Executive will not be paid a lump sum cash amount within 30 days following the date of termination of deemed to have terminated employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by until the Executive with respect to incurs a "separation from service" within the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary meaning of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.409A.
Appears in 3 contracts
Sources: Employment Agreement (Flora Growth Corp.), Employment Agreement (Flora Growth Corp.), Employment Agreement (Flora Growth Corp.)
Severance. Subject to (a) Involuntary Termination other than for Cause, Death or Disability. Except as provided in the following sentence and Section 5(b), if the Company terminates Executive's continued compliance employment with his obligations under this Agreement, the Company shall have no obligation to the without his consent and for a reason other than "Cause" (as defined below), Executive other than: becoming "Disabled" (as defined below) or Executive's death, then promptly following such termination of employment, Executive will (i) the receive a lump-sum payment equal to 100% of the Executive's earned Base Salary and unpaid compensation through the effective date of such termination; target bonus, (ii) the payment of receive all accrued vacation, expense reimbursements and any deferred bonus, subject other benefits due to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of through the date of termination of employment in accordance with the Company's then existing employee benefit plans and policies, (iii) be entitled to an additional twelve (12) months vesting of any Company stock options (whether granted to Executive on, before or after the remainder date of which shall be paid to the Executive in equal installments each month thereafter for six months; this Agreement), (iv) treatment have four (4) years following termination of employment to exercise his vested Company stock options (whether granted on, before or after the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(bdate of this Agreement), (c) and (d); (v) subject to the provisions be paid his then existing Base Salary for a period of Section 409A six (6) months following his termination of the Codeemployment, immediate payout (vi) be 50% of benefits previously accrued his target annual bonus not later than six (6) months following his termination of employment, (vii) receive Company-paid coverage for a period of eighteen (18) months for himself and his eligible dependents under the Company's Supplemental Executive Retirement Plan and health benefit plans (vior, at the Company's option, coverage under a separate plan), providing benefits that are no less favorable than those provided under the Company's plans immediately prior to his termination of employment, (viii) executive outplacement benefits, except receive such other compensation or benefits from the Company as otherwise may be required by law or by the terms (for example, under Section 4980B of the CompanyCode). If the Company terminates Executive's benefit plans employment with the Company without his consent within eighteen (excluding severance plans); PROVIDED18) months after a "Change of Control" (as defined below) and for a reason other than Cause, that in the event that then promptly following such termination is within six months following of employment, Executive will (i) receive a lump-sum payment equal to 100% of the ClosingBase Salary and target bonus, (Aii) in lieu of the benefit set forth in clause (iii)receive all accrued vacation, the Company shall pay the expense reimbursements and any other benefits due to Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following through the date of termination of employment equal in accordance with the Company's then existing employee benefit plans and policies, (iii) be entitled to immediate 100% vesting of any amount withheld by the Company in connection with any Section 83(b) election made by the stock options granted to Executive with respect (whether granted to the New Parent Restricted Shares; PROVIDEDExecutive on, FURTHER, that in the event that such termination is on before or after the date that is six months of this Agreement), (iv) have four (4) years following termination of employment to exercise his vested Company stock options (whether granted on, before or after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of terminationthis Agreement), (v) be paid his then existing Base Salary and target bonus for a period of one (1) year following his termination of employment, (vi) receive Company-paid coverage for a period of two (2) years for himself and his eligible dependents under the Company's health benefit plans (or, at the Company's option, coverage under a separate plan), providing benefits that are no less favorable than those provided under the Company's plans immediately prior to his termination of employment, (vii) receive such other compensation or benefits from the Company as may be required by law (for example, under Section 4980B of the Code). In the event that the Executive is eligible All payments and benefits will be subject to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementapplicable withholding.
Appears in 3 contracts
Sources: Employment Agreement (Atg Group Inc), Employment Agreement (Atg Group Inc), Employment Agreement (Atg Group Inc)
Severance. Subject to (a) Except as otherwise provided in Section 8, if the Executive's continued compliance ’s employment hereunder is terminated during the Employment Term (1) by the Company other than for Cause and not due to disability (as determined in the good faith discretion of the Board), death or expiration of the Employment Term following notice by the Company not to extend the Employment Term in accordance with his obligations under this AgreementSection 3, or (2) by the Executive for Good Reason, the Company Executive shall have no obligation be entitled to the Executive other than: receive as severance (subject to Section 9): (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum Executive’s base salary as in effect immediately prior to the date of the Executive's annual Base Salary plus ’s termination of employment for the period of twenty-four (24) months, payable, commencing no later than sixty (60) days following such termination, in equal installments in accordance with the Company’s payroll procedures during the twenty-four (24) month period following the date of the Executive's Maximum Bonus Amount ’s termination (such twenty-four (24) month period, the “Severance Period”); (ii) continued medical and dental benefits described in Section 4(c) for the Severance Period, at the same rate of employee and Company shared costs of such coverage as in effect as from time to time for active employees of the date Company; and (iii) a pro rata portion (based on the number of days the Executive was employed by the Company during the calendar year of termination), 50% ) of which shall be paid to any annual incentive bonus otherwise payable in accordance with Section 4(b)(1) for the Executive upon the first business day following the six month anniversary of the date year of termination of employment and the remainder of Executive’s employment, payable no earlier than the date on which shall be such bonus, if any, would have been paid to under the Executive in equal installments each month thereafter for six months; (iv) treatment applicable plan or policy of the New Parent Restricted Shares (andCompany absent such termination of employment, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A but no later than March 15 of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months calendar year immediately following the Closing, (A) in lieu calendar year of the benefit set forth such termination. With respect to any such continued medical and dental benefits described in clause (iii)ii) of the first sentence of this Section 7 for which the Executive is eligible, (I) if the Company cannot continue such benefits, the Company shall pay the Executive for the cost of such benefits; (II) such benefits shall be discontinued in the event the Executive becomes eligible for similar benefits from a lump sum cash amount equal successor employer (and the Executive’s eligibility for any such benefits shall be reported by the Executive to the product of Company); and (xIII) the multiple set forth Executive’s period of “continuation coverage” for purposes of Section 4980B of the Code shall be deemed to commence on ATTACHMENT 1 and (y) the sum date of the Executive's annual base salary and ’s termination of employment.
(b) For purposes of this Agreement, except as otherwise provided in Section 8, “Good Reason” shall mean the occurrence, without the Executive's target bonus amount ’s consent, of any of the following events: (each, as i) an action by the Company resulting in effect as a material adverse change in the Executive’s reporting responsibilities or a material diminution in the Executive’s duties or direct reports; or (ii) a material breach of immediately prior any material provision of this Agreement by the Company (which is not in connection with the termination of the Executive’s employment for Cause or due to the ClosingExecutive’s Disability); provided, (B) in lieu however, that the occurrence of the benefit set forth any event described in clause (ivi) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to or (ii) of this Section 7(b) may only constitute Good Reason if the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld relevant circumstances or conditions are not remedied by the Company in connection with any Section 83(bwithin thirty (30) election made days after receipt by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary Company of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of written notice thereof from the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.
Appears in 3 contracts
Sources: Employment Agreement (Associated Materials, LLC), Employment Agreement (Associated Materials, LLC), Employment Agreement (Associated Materials, LLC)
Severance. (a) Subject to Section 7(b) below, if Executive’s employment is terminated prior to the Executive's continued compliance with his obligations under this Agreement, end of the Term by the Company without Cause (other than due to death or Disability), Executive shall have no obligation be entitled to the Executive other than: receive a cash severance payment equal to (i) three months of Executive’s Base Salary at the payment time of termination, which shall increase to six months of Executive’s Base Salary if such termination occurs after one year from the Executive's earned Effective Date; and unpaid compensation through the effective date of such termination; (ii) a pro rata portion of the target Annual Bonus for the year in which such termination occurs. Such severance payment of any deferred bonusshall be made over the three or six month period, subject as applicable, in accordance with the Company’s normal payroll policy, provided that prior to the provisions initial payment, the Executive has executed and delivered to the Company, and has not revoked a general release of the Company, its parents, subsidiaries and affiliates and each of its officers, directors, employees, agents, successors and assigns, and such other persons and/or entities as the Company may determine, in a form reasonably acceptable to the Company. Such general release shall be delivered on or about the date of termination and must be executed within 21 days of termination.
(b) Notwithstanding the foregoing, (i) any payment(s) of “nonqualified deferred compensation” (within the meaning of Section 409A of the CodeCode and the regulations and official guidance issued thereunder (“Section 409A”)) that is/are required to be made to Executive hereunder as a “specified employee” (as defined under Section 409A) as a result of such employee’s “separation from service” (within the meaning of Section 409A) shall be delayed for the first six (6) months following such separation from service (or, if earlier, the date of death of the specified employee) and shall instead be paid upon expiration of such six (6) month delay period; and (iiiii) for purposes of any such payment that is subject to Section 409A, if the Executive’s termination of employment triggers the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination)“nonqualified deferred compensation” hereunder, 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, then the Executive will not be paid a lump sum cash amount within 30 days following the date of termination of deemed to have terminated employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by until the Executive with respect to incurs a “separation from service” within the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary meaning of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.409A.
Appears in 3 contracts
Sources: Employment Agreement (Bluejay Diagnostics, Inc.), Employment Agreement (Bluejay Diagnostics, Inc.), Employment Agreement (Bluejay Diagnostics, Inc.)
Severance. Subject to the Executive's continued compliance with his obligations under this Agreement, the Company shall have no obligation to the Executive other than: (a) If (i) Employee's employment is terminated by the payment of the Executive's earned and unpaid compensation through the effective date of such termination; Company without "cause,"
(ii) the payment of any deferred bonusCompany does not agree to extend the Employment Term upon the expiration thereof, subject to the provisions of Section 409A of the Code; (iii) Employee terminates his employment because the payment Company reduces his responsibilities or compensation in a manner which is tantamount to termination of Employee's employment, or (iv) within two years following a Sale of the Company (as defined in Section 9 of this Agreement), the Employee gives notice to the Company of his resignation for "Good Reason" (as defined in Section 8(b) hereof) setting forth in reasonable detail the circumstances claimed to constitute Good Reason and stating that it constitutes notice pursuant to this Section 8(a), and the stated basis for Good Reason has not been fully corrected within sixty (60) days from the date of such notice, the Employee shall be entitled to (x) receive an amount equal to his total cash compensation (base salary plus bonus, excluding, however, any Change in Control Bonus paid pursuant to Section 9 hereof) for the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of year preceding the date of termination)the Employee's termination or the date on which the Employment Term expires, 50% of which shall as the case may be, such amount to be paid to the Executive upon the first business day following the six month anniversary of payable in a lump sum on the date of termination of employment and or the remainder of date on which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of Employment Term expires, as the New Parent Restricted Shares (andcase may be, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) continue to receive the sum of benefits referred to in Section 4(c) during the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days one year period following the date of termination or expiration (the "Severance Period"); provided, however, if any such event occurs prior to the extension of employment the initial Employment Term, the Employee shall be entitled to (A) an amount equal to any his then current salary, payable in a lump sum on the date of termination, (B) an amount withheld equal to his target annual bonus, payable in a lump sum on the date of termination, and (C) continue to receive the benefits referred to in Section 4(c) during the Severance Period. If the Employee's employment is terminated by the Company in connection with any Section 83(b) election made "for cause", the Employee shall not be entitled to severance compensation. The Employee covenants and agrees that he will not, during the one year period following the termination of the Employee's employment by the Executive Company, within any jurisdiction or marketing area in which the Company or any of its Affiliates (as defined below) is doing business or is qualified to do business, directly or indirectly own, manage, operate, control, be employed by or participate in the ownership, management, operation or control of, or be connected in any manner with, any business of the type and character engaged in and competitive with that conducted by the Company or any of its Affiliates at the time of such termination; provided, however, that ownership of securities of 2% or less of any class of securities of a public company shall not be considered to be competition with the Company or any of its Affiliates. For the purposes of this Agreement, the term "Affiliate" shall mean, with respect to the New Parent Restricted Shares; PROVIDEDCompany, FURTHERany person or entity which, that in directly or indirectly, owns or is owned by, or is under common ownership with, the event that such termination is on Company. The term "own" (including, with correlative meanings, "owned by" and "under common ownership with") shall mean the ownership of 50% or after the date that is six months after the Closing but prior to the first anniversary more of the Closing, in lieu voting securities (or their equivalent) of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementparticular entity.
Appears in 3 contracts
Sources: Employment Agreement (North Shore Agency Inc), Employment Agreement (North Shore Agency Inc), Employment Agreement (North Shore Agency Inc)
Severance. Subject (i) In the event of any termination of Executive’s employment for any reason, Executive (or his estate) shall be entitled to (A) his Base Salary through the date of termination, (B) the value of his accrued but unused vacation and paid time off through the date of termination, (C) except in the case of termination for Cause, any bonus earned in a prior year but not yet paid on the date of termination, (D) reimbursement of all business expenses properly incurred prior to the date of termination consistent with Company policy, and (E) any benefits, including any continuation or conversion rights, provided under any employee benefit plan or policy of the Company (not including any severance, separation pay, or supplemental unemployment benefit plan), in accordance with the terms of such plan or policy (the “Accrued Benefits”).
(ii) In the event of termination of Executive's continued compliance with his obligations under this Agreement’s employment by reason of death, or Disability, the Company shall have no obligation pay or provide to the Executive other than: or Executive’s estate (iA) the payment Accrued Benefits, (B) Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), for a period of the Executive's earned and unpaid compensation through six (6) months from the effective date of such termination; , (iiC) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to Executive’s Target Bonus for the sum fiscal year of termination pro-rated through the date of termination (determined based on the number of days in the calendar year that Executive is employed by the Company in such year of the Executive's annual Base Salary plus effective date of termination) and paid within thirty (30) days following such termination, and (D) continued health benefits for Executive and his eligible dependents at Company’s expense (or such portion thereof as is then funded by the Executive's Maximum Bonus Amount (as in effect as Company for other employees of the Company), if applicable, for the same period.
(iii) In the event of a nonrenewal or termination by the Company pursuant to Section 2 or Section 10(a)(iii), or if Executive terminates this Agreement during the twelve (12) months after a Change of Control pursuant to Section 10(a)(v), the Company shall (A) pay or provide to Executive the Accrued Benefits, (B) pay Executive a pro-rata annual bonus in respect of the fiscal year in which the effective date of termination occurs (determined based on the number of days in the calendar year that Executive is employed by the Company in such fiscal year of the effective date of termination), 50% of which shall be with such annual bonus (if any) paid to at the Executive upon the first business day following the six month anniversary of the date of same time it would have otherwise been paid absent Executive’s termination of employment and the remainder of which shall be paid employment, (C) continue to the pay Executive his/her Base Salary, in equal installments each month thereafter for six months; accordance with its normal payroll practices (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(bbut not less frequently than monthly), and shall continue Executive’s, and his eligible dependents’, health insurance benefits at Company’s expense (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except or such portion thereof as otherwise required by law or is then funded by the terms Company for other employees of the Company's benefit plans ) for a period of twelve (excluding severance plans); PROVIDED12) months from the effective date of such termination, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (yD) provide Executive, at the sum of the Executive's annual base salary and the Executive's target bonus amount (eachCompany’s expense, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange senior executive level outplacement services for a refund period of the full purchase price within 30 days following such return and twelve (C12) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of from the date of termination). In , using a reputable provider selected by Executive with the event Company’s consent, which shall not be unreasonably withheld, provided that the Executive is eligible to receive the severance benefits such outplacement expenses shall not exceed $25,000 in any event.
(iv) Except as expressly provided for by in this Section 4.4(a10(b), upon the termination of Executive’s employment, all payments hereunder shall cease.
(v) The payments and benefits described in Section 10(b)(ii) and 10(b)(iii) are in lieu of, and not in addition to, any other severance arrangement maintained by the Company. The payments and benefits described in Section 10(b)(ii) and 10(b)(iii), other than the Accrued Benefits, are conditioned on: (a) Executive’s (or in the case of Executive’s death, his/her estate’s) execution and delivery to the Company and the expiration of all applicable statutory revocation periods, by the 60th day following the effective date of his/her termination of employment, of a general release of claims against the Company and its affiliates substantially in the form attached hereto as Exhibit A (the “Release”); and (b) Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement. Subject to Section 10(d) below, the payments and benefits described in Section 10(b)(ii) and 10(b)(iii) will begin to be paid or provided as soon as administratively practicable after the Release becomes irrevocable, provided that if the 60 day period described above begins in one taxable year and ends in a second taxable year such payments or benefits shall not commence until the second taxable year.
(vi) Executive shall not be eligible required to receive severance seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits under described in Section 10(b)(ii) and 10(b)(iii), and such benefits shall not be reduced or offset by an amounts received by Executive from any other Company plansource, policy, or agreementexcept to the extent Executive’s medical coverage is discontinued by reason of his acquiring other coverage.
Appears in 2 contracts
Sources: Employment Agreement (Recro Pharma, Inc.), Employment Agreement (Recro Pharma, Inc.)
Severance. Subject In the event that Employee is subject to the Executive's continued compliance with his obligations under this Agreementa Change in Control Involuntary Termination, the Company Employee shall have no obligation be entitled to the Executive other thanreceive severance benefits as follows: (iA) the a lump sum cash payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of in an amount equal to two (2) times the sum higher of (1) the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of base salary which shall be paid Employee was receiving immediately prior to the Executive upon Change in Control or (2) the first business day following the six month anniversary of the date of termination of employment and the remainder of base salary which shall be paid Employee was receiving immediately prior to the Executive Change in equal installments each month thereafter for six months; Control Involuntary Termination (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d“Salary Payment”); (vB) subject a lump sum cash payment in an amount equal to two (2) times Employee’s Target Annual Bonus (the “Bonus Payment”); (C) payment by the Company of the full cost of the health insurance benefits provided to Employee and Employee’s spouse and dependents, as applicable, immediately prior to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by Change in Control pursuant to the terms of the Company's benefit plans Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (excluding severance plans“COBRA”) or other applicable law through the earlier of the end of the twenty four (24) month period following the Change in Control Involuntary Termination date or the date upon which Employee is no longer eligible for such COBRA or other benefits under applicable law; and (D) payment of any earned but unpaid annual bonus for the year immediately preceding the year of termination, to be paid at the time the Company pays bonuses with respect to such year to its executives generally (and in all events between January 1st and March 15th of the calendar year immediately following the calendar year in which such termination of employment occurs). The benefits to be provided under clauses (a)(i) and (a)(ii)(A) and (B) of this section shall be paid on the sixtieth (60th) day following Employee’s termination of employment; PROVIDEDexcept that if a Change in Control occurs after the applicable Change in Control Involuntary Termination, then the Unvested Equity Value Payment, Salary Payment and Bonus Payment shall be payable in a lump sum on the date of such Change in Control. The benefits to be provided under clause (a)(ii)(C) of this section shall be paid on a monthly basis commencing on the sixtieth (60th) day following Employee’s termination of employment, or, if earlier, the next payroll cycle following Employee’s execution of a release of claims against the Company and the expiration of any statutory waiting period (with a catch-up payment covering any payments that would have been made prior to such first payment had such payments commenced on the date of Employee’s termination of employment). In addition, all payments and benefits under Section 2(a)(i) and (ii) (other than the Accrued Benefits) are subject to Employee’s continued compliance with the Restrictive Covenants and release of claims against the Company as set forth in Section 1(a). Notwithstanding the foregoing, in the event the Board of Directors concludes in its reasonable judgment that such termination the provision of subsidized COBRA benefits to Employee is within six months following likely to cause the Closing, (A) in lieu Company to become subject to excise tax as a result of the benefit set forth in clause Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (iiithe “Healthcare Reform Act”), the Company shall pay the Executive Employee a lump sum monthly amount in cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum amount of the Executive's annual base salary and COBRA subsidy during the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to period the Company in exchange is obligated to provide subsidized COBRA benefits to Employee. In addition, Employee shall receive payment(s) for a refund of the full purchase price within 30 days following such return all salary, bonuses and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect unpaid vacation accrued as of the date of terminationEmployee’s termination of employment (the “Accrued Benefits”) and up to three (3) consecutive months of outplacement services not to exceed $5,000 per month (with a provider and in a program selected by the Employee, provided Employee commences such services within ninety (90) days of Employee’s Change in Control Involuntary Termination date). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.
Appears in 2 contracts
Sources: Management Continuity Agreement (Assertio Holdings, Inc.), Management Continuity Agreement (Assertio Holdings, Inc.)
Severance. Subject to (a) If the Executive's continued compliance employment with the Company and the Employment Term terminate by reason of termination by the Executive of his obligations under this Agreementemployment for Good Reason or termination by the Company of the Executive's employment, including as a result of notice of nonrenewal of the Employment Term by the Company in accordance with Section 3 hereof, and such termination is not for Cause or Non-Performance and is not due to Disability or death, the Company shall have no liability or further obligation to the Executive other thanexcept as follows: the Executive shall be entitled to receive (i) the payment of the Executive's earned and unpaid compensation through the effective date within thirty (30) days of such terminationtermination of employment, any earned but unpaid Base Salary and any unreimbursed business expenses payable pursuant to Section 4(g) for the period prior to termination and any unpaid Performance Bonus for any prior completed fiscal year (the "Entitlements"); (ii) within thirty (30) days of such termination of employment, a severance payment equal to two hundred percent (200%) of the payment sum of any deferred bonus(x) the Executive's then-current annual Base Salary and (y) the Performance Bonus earned by the Executive for the immediately preceding fiscal year (the "Severance Payment"); provided that, subject notwithstanding anything to the provisions contrary set forth herein, prior to the first anniversary date of Section 409A of this Agreement, the CodeSeverance Payment shall be deemed to be $1,120,000; and (iii) at the payment time provided in such plan, any rights to which he is entitled in accordance with plan provisions under any employee benefit plan, program or arrangement, or any fringe benefit, incentive or stock option plan of an amount equal the Company in which he participates at the time of such termination ("Rights"). As a condition of receiving the payments provided for under this Section 9(a), the Executive agrees to execute a release releasing the Company and any of its affiliates from any and all obligations and liabilities to the sum of Executive arising from or in connection with the Executive's annual Base Salary plus employment or termination of employment with the Company and any of its affiliates and any disagreements with respect to such employment, except that such release shall not release the Company from its obligation to pay the Executive the Entitlements, the Severance Payment, and the Rights provided for in this Section 9(a).
(b) If during the Employment Term, the Executive's Maximum Bonus Amount employment is terminated for any reason other than as provided in Section 9(a) (as in effect as including death, termination of the date of termination)Executive by the Company for Cause, 50% of which shall be paid to Non-Performance or Disability or termination by the Executive upon the first business day following the six month anniversary without Good Reason or his delivery of the date a notice of termination of employment and the remainder of which shall be paid to the Executive nonrenewal in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in accordance with Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii3 hereof), the Company shall pay have no liability or further obligation to the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, except as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, follows: the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to (and his estate or designated beneficiaries under any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that Company-sponsored employee benefit plan in the event that such termination is on or after of his death) shall be entitled to receive any Entitlements and any Rights at the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) time provided in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementrelevant plans.
Appears in 2 contracts
Sources: Employment Agreement (Auster Charles), Employment Agreement (Infocrossing Inc)
Severance. Subject to Except as otherwise provided in Section 8, if the Executive's continued compliance ’s employment hereunder is terminated during the Employment Term by the Company or is terminated due to expiration of the Employment Term following notice by the Company not to extend the Employment Term in accordance with his obligations under this AgreementSection 3, in each case other than for Cause or due to disability (as determined in the good faith discretion of the Board) or death, the Company Executive shall have no obligation be entitled to the Executive other than: receive as severance (subject to Section 9): (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum Executive’s base salary as in effect immediately prior to the date of the Executive's annual Base Salary plus ’s termination of employment for twelve (12) months, payable, commencing no later than sixty (60) days following such termination, in equal installments in accordance with the Company’s payroll procedures during the twelve (12) months following the date of the Executive's Maximum Bonus Amount ’s termination (such twelve-month period, the “Severance Period”); (ii) continued medical and dental benefits described in Section 4(c) for the Severance Period, at the same rate of employee and Company shared costs of such coverage as in effect as from time to time for active employees of the date Company; and (iii) a pro rata portion (based on the number of days the Executive was employed by the Company during the calendar year of termination), 50% ) of which shall be paid to any incentive bonus otherwise payable in accordance with Section 4(b) for the Executive upon the first business day following the six month anniversary of the date year of termination of employment and the remainder of Executive’s employment, payable no earlier than the date on which shall be such bonus, if any, would have been paid to under the Executive in equal installments each month thereafter for six months; (iv) treatment applicable plan or policy of the New Parent Restricted Shares (andCompany absent such termination of employment, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A but no later than March 15 of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months calendar year immediately following the Closing, (A) in lieu calendar year of the benefit set forth such termination. With respect to any such continued medical and dental benefits described in clause (iii)ii) of the first sentence of this Section 7 for which the Executive is eligible, (I) if the Company cannot continue such benefits, the Company shall pay the Executive for the cost of such benefits; (II) such benefits shall be discontinued in the event the Executive becomes eligible for similar benefits from a lump sum cash amount equal successor employer (and the Executive’s eligibility for any such benefits shall be reported by the Executive to the product of Company); and (xIII) the multiple set forth Executive’s period of “continuation coverage” for purposes of Section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”), shall be deemed to commence on ATTACHMENT 1 and (y) the sum date of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of ’s termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementemployment.
Appears in 2 contracts
Sources: Employment Agreement (Associated Materials, LLC), Employment Agreement (Amh Holdings, LLC)
Severance. Subject (a) Upon termination of Executive’s employment with the Company (including election not to extend the term of this Agreement pursuant to Section 1 above) by the Company without Cause (as defined below) or upon Executive’s resignation from employment (including election not to extend the term of this Agreement pursuant to Section 1 above) for Good Reason (as defined below), in each case contingent upon Executive’s execution, non-revocation, and delivery of a Confidential Severance and Release Agreement in a form substantially similar to Exhibit A of this Agreement (the “Release Agreement”), Executive shall be entitled to the following: (i) a lump sum severance payment in an amount equal to two (2) months of the Base Salary in effect immediately prior to Executive's ’s last date of employment, less applicable withholdings and deductions; and (ii) if Executive elects to receive continued compliance with his healthcare coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), the Company shall directly pay, or reimburse Executive for, the COBRA premiums for Employee and Employee’s covered dependents during the period commencing on Executive’s termination and ending upon the earliest of (A) twelve (12) months following the date of termination, (B) the date that Executive and/or Executive’s covered dependents become no longer eligible for COBRA or (D) the date Executive and Executive’s covered dependents become eligible to receive healthcare coverage from Executive’s subsequent employer.
(b) The Company’s obligations under this Section 6.2 are subject to the requirements and time periods set forth in this Section 6.2 and in the Release Agreement. Prior to receiving the payments described in this Section 6.2, Executive shall execute the Release Agreement on or before the date that is seventy-five (75) days after the last day of Executive’s employment. If Executive fails to timely execute and remit the Release Agreement, Executive waives any right to the payments provided under this Section 6.2. The Company will have no further obligations to Executive under this Agreement or otherwise after making payments pursuant to this Section 6.2. Payments under this Section 6.2 shall be made within fifteen (15) days of Executive’s execution and delivery of the Release Agreement, provided that Executive does not revoke the Release Agreement.
(c) Executive agrees that payments made pursuant to this Section 6.2 shall constitute the exclusive and sole remedy for any termination of Executive’s employment, and Executive covenants not to assert or pursue any other remedies, at law or in equity, with respect to any termination of employment. The foregoing shall not limit any of Executive’s rights with regard to any rights to indemnification, advancement or payment of legal fees and costs, and coverage under directors and officers liability insurance.
(d) Anything in this Agreement to the contrary notwithstanding, the Company shall have no obligation the right to terminate all payments and benefits owing to Executive pursuant to this Section 6.2 upon the Executive other than: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment Company’s discovery of any deferred bonus, subject to the provisions material breach by Executive of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued ’s obligations under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefitsRelease Agreement or Sections 8, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy9, or agreement12 of this Agreement.
Appears in 2 contracts
Sources: Executive Employment Agreement (Lifeloc Technologies, Inc), Executive Employment Agreement (Lifeloc Technologies, Inc)
Severance. Subject 6.1 In the event of a termination of the Executive’s employment by the Company for Cause, by the Executive without Good Reason, due to the expiration of the Term or as a result of the Executive’s death, the Executive shall be entitled to (i) his Base Salary earned but unpaid through and including the date of the termination of his employment, (ii) any unpaid bonus that is earned and accrued for any completed Fiscal Year, and (iii) any benefits or payments to which the Executive is entitled under any Company plan, program, agreement, or policy (collectively, “Accrued Amounts”).
6.2 In the event the Executive’s employment is terminated as a result of a Change in Control (as defined below) as determined by the Board in its sole discretion, by the Company without Cause (which does not include termination due to expiration of the Term) or by the Executive for Good Reason during the Term, the Executive shall be entitled to the Accrued Amounts and, subject to the Executive's continued compliance with his obligations under this Agreement’s signing, returning to the Company and not revoking a release of claims for the benefit of the Company, in the form provided by the Company (the “Release”), the Executive shall be entitled to receive, and the Company shall be obligated to provide, the following severance benefits; provided, that, if the Executive should fail to execute such Release within 45 days following the later of (i) the Executive’s date of termination or (ii) the date the Executive actually receives an execution copy of such Release (which shall be delivered to the Executive within five (5) calendar days following the Executive’s termination date), the Company shall not have no obligation any obligations to provide the severance payments contemplated under this Section 6.2:
(a) Payment to the Executive other than: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum lesser of (i) 2.99 times the Base Salary in the year of such termination or (ii) the amount of Base Salary owed to the Executive for the remainder of the Executive's annual Base Salary plus Term, in a lump sum within sixty (60) days following the Executive's Maximum termination date;
(b) Payment to the Executive of an amount equal to one hundred percent (100%) of the Bonus Amount opportunity actually earned for the year prior to the year of termination, if any; this amount shall be paid in a lump sum within sixty (60) days following the termination date;
(c) The same level of health (i.e. medical, vision and dental) coverage and benefits as in effect for the Executive on the day immediately preceding the day of termination of employment; provided, however that (i) the Executive constitutes a qualified beneficiary, as defined in Section 4980B(g)(1) of the date Code; and (ii) the Executive elects continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of termination1985, as amended (“COBRA”), 50% of which within the time period prescribed pursuant to COBRA. The Company shall be paid continue to provide the Executive upon with such health coverage until the first business day following earlier of (A) the six month anniversary date the Executive is no longer eligible to receive continuation coverage pursuant to COBRA, or (B) twelve (12) months from the termination date; and
(d) The vesting of the Option will accelerate on the date of termination as to that number of employment and the remainder of which shall be paid to shares that would have become vested if the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or had remained employed by the terms of Company until the Company's benefit plans date twelve (excluding severance plans); PROVIDED, that in the event that such termination is within six 12) months following the Closing, (A) in lieu termination date. For avoidance of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a)doubt, the Executive shall not be eligible entitled to receive any severance benefits under any other pursuant to this Section 6.2 if his employment is terminated by the Company planfor Cause, policy, by the Executive without Good Reason or agreementdue to the Executive’s death or the expiration of the Term.
Appears in 2 contracts
Sources: Employment Agreement (FriendFinder Networks Inc.), Employment Agreement (FriendFinder Networks Inc.)
Severance. Subject (a) If the Company terminates Employee’s employment with the Company without Cause in accordance with Section 6(c) prior to the Executive's continued compliance with his obligations under this Agreementexpiration of the Initial Term, the Company shall have no obligation to the Executive other than: (i) the pay Employee a severance payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum twelve months of the Executive's annual Employee’s Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of on the date of termination), 50% of which shall be paid subject to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), subsections (c) and (d); .
(vb) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) the Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the provisions date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, immediate payout of benefits previously accrued under the Severance Payment will be made on the Company's Supplemental Executive Retirement Plan ’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and (vi) executive outplacement benefits, except agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as otherwise required by law or Exhibit B by the terms of 45th day following the Company's benefit plans Employee’s separation from service and not revoking the release within the seven (excluding severance plans); PROVIDED7) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, that the Severance Payment will be paid in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal second calendar year. Employee’s right to the product Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum this Agreement. If Employee breaches any of the Executive's annual base salary and the Executive's target bonus amount (eachhis obligations in Sections 8-11 of this Agreement, as in effect as of he will immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned return to the Company in exchange for a refund any portion of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect Severance Payment that has been paid to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal him pursuant to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement7.
Appears in 2 contracts
Sources: Employment Agreement (Alpha Modus Holdings, Inc.), Employment Agreement (Insight Acquisition Corp. /DE)
Severance. Subject to If the Executive's continued compliance employment hereunder is terminated during the Employment Term by the Company or is terminated due to expiration of the Employment Term following notice by the Company not to extend the Employment Term in accordance with his obligations under this AgreementSection 3, in each case other than for Cause or due to disability (as determined in the good faith discretion of the Board) or death, the Company Executive shall have no obligation be entitled to the Executive other thanreceive as severance: (i) the payment if such termination occurs prior to expiration of the Executive's earned two (2) year period following the Commencement Date, the severance pay and unpaid compensation through benefits payable under the effective date terms of such termination; Sections 3(b), 3(c), 3(d), 3(e), 3(f) and 3(g) of the severance agreement attached as Exhibit B hereto (pursuant to which, the calendar year in which the "Change in Control" occurred, for purposes of Sections 3(d) and 3(e) thereunder, shall be 2002), or (ii) the payment of any deferred bonusif such termination occurs other than as described in clause (i) immediately preceding, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum Executive's base salary as in effect immediately prior to the date of the Executive's annual Base Salary plus termination of employment for the longer period of twelve (12) months or the remaining Employment Term (payable, at the Company's option, in a lump-sum or in equal installments in accordance with the Company's payroll procedures during the applicable period described immediately above in this clause (ii) following the date of the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% and a pro rata portion (based on the number of days the Executive was employed by the Company during the calendar year of termination) of any incentive bonus otherwise payable in accordance with Section 4(b) for the year of termination of the Executive's employment, payable no earlier than the date on which such bonus, if any, would have been paid under the applicable plan or policy of the Company absent such termination of employment. If the Executive's employment is terminated otherwise than as described in this Section 7, the Executive shall not be entitled to any severance, termination pay or similar compensation or benefits, provided that the Executive shall be paid entitled to any benefits then due or accrued in accordance with the applicable employee benefit plans of the Company or applicable law, including "continuation coverage" under the Company's group health plans for purposes of Section 4980B of the Internal Revenue Code of 1986, as amended ("COBRA"). As a condition of receiving any severance for which he otherwise qualifies under this Section 7, the Executive upon agrees to execute a general release of the first business day following Company and the six month anniversary Affiliates and their respective officers, directors and employees from any and all claims, obligations and liabilities of any kind whatsoever arising from or in connection with the Executive's employment or termination of employment with the Company or this Agreement (including, without limitation, civil rights claims), in such form as is requested by the Company. The Executive acknowledges and agrees that, except as specifically described in this Section 7, all of the Executive's rights to any compensation, benefits (other than base salary earned through the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of any benefits previously due or accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by in accordance with the applicable employee benefit plans of the Company in connection with or applicable law), bonuses or severance from the Company or any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such Affiliate after termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company Employment Term shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of cease upon such termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.
Appears in 2 contracts
Sources: Employment Agreement (AMH Holdings, Inc.), Employment Agreement (Associated Materials Inc)
Severance. Subject In exchange for Executive’s agreement to be bound by the terms of this Release, including, but not limited to, the release of claims in Section 3, and subject to the occurrence of the Effective Date as provided in Section 1(a), Executive shall be entitled to receive the following, which shall be the exclusive severance benefits to which Executive is entitled, unless Executive has failed to comply with the provisions of this Release, in which case the last sentence of Section 4 shall apply:
(i) A cash payment in the amount of $292,916.55, representing twelve (12) months’ base salary, payable in a lump sum on the sixtieth (60th) day following the Separation Date; plus
(ii) A cash payment in the amount of $87,874.97, representing Executive's continued compliance with his obligations ’s 2019 annual bonus, payable in a lump sum on the sixtieth (60th) day following the Separation Date; plus
(iii) For the period beginning on the Separation Date and ending on the date which is twelve (12) full months following the Separation Date (or, if earlier, (x) the date on which the applicable continuation period under this AgreementCOBRA expires, or (y) the date Executive becomes eligible to receive the equivalent or increased healthcare coverage from a subsequent employer) (such period, the “COBRA Coverage Period”), the Company shall have no obligation either, at its option, (1) pay directly or (2) reimburse Executive, for the costs associated with continuation coverage pursuant to COBRA for Executive and his eligible dependents who were covered under the Company’s health plans as of the Separation Date (provided that Executive shall be solely responsible for all matters relating to his continuation of coverage pursuant to COBRA, including, without limitation, his election of such coverage and his timely payment of premiums). If (x) any plan pursuant to which such benefits are provided is not, or ceases prior to the Executive other than: (i) the payment expiration of the Executive's earned and unpaid compensation through period of continuation coverage to be, exempt from the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions application of Section 409A of the Code; Code under Treasury Regulation Section 1.409A-1(a)(5), or (iiiy) the payment Company is otherwise unable to continue to cover Executive under its group health plans under applicable law or the terms of such plans, then, in either case, the Company shall instead pay to Executive an amount equal to the sum of monthly plan premium payment for Executive and his eligible dependents who were covered under the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect Company’s health plans as of the date of termination), 50% of which shall be paid Separation Date (calculated by reference to the Executive upon the first business day following the six month anniversary Executive’s premiums as of the date of termination of employment and Separation Date) as currently taxable compensation in substantially equal monthly installments over the remainder of which shall be paid to COBRA Coverage Period (or the Executive in equal installments each month thereafter for six monthsremaining portion thereof); plus
(iv) treatment of In the New Parent Restricted Shares event a Company Transaction (as defined in the Employment Agreement) occurs within fifty-nine (59) days following the Separation Date, the additional benefits set forth below (and, for the avoidance of doubt, if applicablea Company Transaction does not occur within such time period, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive the additional severance benefits under any other described in this clause (iv)):
(A) An additional cash payment in the amount of Executive’s full target bonus for the year in which the Company planTransaction occurs, policypayable in a lump sum on the sixtieth (60th) day following the Separation Date; plus
(B) The vesting and/or exercisability of each of Executive’s outstanding stock options shall be automatically accelerated and deemed vested and exercisable as of the Separation Date. Except as modified above, or agreementExecutive’s stock options shall continue to be governed by the terms and conditions of the stock option agreements and the Company’s equity plan pursuant to which such stock options were granted. The foregoing benefits shall be the exclusive benefits to which Executive is entitled in connection with his termination of employment, unless Executive has failed to comply with the provisions of this Release, in which case the last sentence of Section 4(a) shall apply.
Appears in 2 contracts
Sources: General Release of Claims (Avidity Biosciences, Inc.), General Release of Claims (Avidity Biosciences, Inc.)
Severance. Subject to the ExecutiveIf Employee's continued compliance with his obligations under this Agreement, employment is terminated by Employee or the Company shall have for any reason or no obligation reason after December 31, 1997, Employee will be entitled to the Executive other than: (i) the payment of the Executive's earned and unpaid compensation through receive on the effective date of such termination; termination of Employee's employment (iithe "Termination Date"), cash compensation equal to six (6) months of Employee's base salary (the payment of any deferred bonus, subject "Initial Severance Payment"). In addition to the provisions of Section 409A of Initial Severance Payment, on the Code; (iii) Termination Date, the payment of Company will deposit an amount equal to six (6) months of Employee's base salary in escrow (the sum of "Escrow Deposit") with a financial institution pursuant to an escrow agreement in form reasonably acceptable to Employee and the Executive's annual Base Salary plus Company. If Employee has not obtained new employment within the Executive's Maximum Bonus Amount six (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day 6) month period immediately following the six Termination Date, then the Escrow Agent will distribute to Employee monthly, commencing on the seventh (7th) month anniversary of the date Termination Date and ending on the twelfth (12th) month anniversary of termination the Termination Date (the "Subsequent Payment Period") an amount equal to one-sixth (1/6th) of employment and the remainder of which Escrow Deposit (the "Subsequent Severance Payments"); provided, that the Subsequent Severance Payments shall be paid reduced, on a dollar for dollar basis, to the Executive extent Employee receives compensation for services rendered to another person or entity during the Subsequent Payment Period (the "Offset Amounts"). The Offset Amounts, if any, shall be distributed by the Escrow Agent to the Company. Notwithstanding the foregoing, in equal installments each month thereafter the event that the severance and other benefits provided for six months; (iv) treatment in this Agreement to Employee constitute "parachute payments" within the meaning of Section 280G of the New Parent Restricted Shares (Code and, if applicablebut for this Section 5, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) would be subject to the provisions of excise tax imposed by Section 409A 4999 of the Code, immediate payout the aggregate amount of such payments and benefits previously accrued payable pursuant to this Section 5 shall be reduced such that the present value thereof (as determined under the CompanyCode and the applicable regulations) is equal to 2.99 times the Employee's Supplemental Executive Retirement Plan and (vi"base amount" as defined in Section 280G(b)(3) executive outplacement benefits, except as otherwise required by law or by the terms of the CompanyCode. If Employee's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination employment is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), terminated by Employee or the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately for any reason or no reason prior to the Closing)December 31, (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares1997, any Purchased Parent Shares shall Employee will not be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible entitled to receive the any severance benefits provided for by payments pursuant to this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement5.
Appears in 2 contracts
Sources: Employment Agreement (Cellpro Incorporated), Employment Agreement (Cellpro Incorporated)
Severance. Subject (a) If, prior to the Executive's continued compliance with his obligations under expiration of this Agreement, the Company shall have no obligation breaches this Agreement by terminating the Executive's employment for any reason other than Cause (a "Breach"), or during the two year period next following a "Change in Control" (as herein defined) the Executive's employment with the Company is terminated for reasons other than death, disability or Cause ("Termination Upon Change in Control"), in lieu of additional salary payments to the Executive other than: (i) for periods subsequent to the payment of the Executive's earned and unpaid compensation through the effective date of such termination; , the Company shall pay a lump sum severance payment (iitogether with the payments provided in paragraph (c) below, the payment of any deferred bonus, subject "Severance Payments") to the provisions Executive at the time of Section 409A of the Code; (iii) the termination. Such payment of shall be an amount equal to the sum number of years, including fractional years, remaining until this Agreement would expire but for such termination (in any event however, the period shall be not less than two years nor more than the number of years, including the fractional years, from the date of such termination until the Executive's annual Base Salary plus attainment of age 65) multiplied by the sum of
(A) the Executive's Maximum Bonus Amount (Base Salary rate as in effect as of the date of termination), 50% termination and (B) the average of which shall be paid the bonus amounts awarded or due to the Executive upon the first business day following the six month anniversary pursuant to Section 3.2 of the date this Agreement. Payment of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Severance Payments provided under this Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that 7 in the event that such of a termination is within six months following which constitutes a Breach by the Closing, (A) in lieu Company will not prohibit Executive from seeking enforcement of the benefit set forth remaining provisions of this Agreement or other remedies for breach of this Agreement.
(b) In determining the amount of payments due under any incentive plan or other bonus plan in clause (iii)effect for the year in which the Executive is terminated as a result of a Breach or Termination Upon Change in Control, the Company shall pay the Executive at the time of termination a lump sum cash pro-rata portion of all contingent awards granted under such plans for all uncompleted periods, assuming for this purpose that the amount of each award that would have been paid upon the completion of such period would at least equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum pro rata amount of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu greater of the benefit set forth target or maximum bonus, if any, provided for in clause such plan.
(ivc) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the The Company shall pay the Executive over all reasonable legal fees and expenses incurred by the Executive as a 24result of such termination (including all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement), unless the decision-month maker in any proceeding, contest or dispute arising hereunder makes a formal finding that the Executive did not have a reasonable basis for instituting such proceeding, contest or dispute, in which event the Executive shall pay to the Company its reasonable legal fees and expenses incurred in the defense of such proceeding, contest or dispute.
(d) For the length of the period in equal monthly installments for which severance benefits are provided after any termination pursuant to this Section 7, the product Company shall arrange to provide the Executive with life, disability, accident and group health insurance benefits substantially similar to those which the Executive was receiving immediately prior to the notice of termination. Benefits otherwise receivable by the Executive pursuant to this paragraph (xd) two and (y) shall be reduced to the sum of extent comparable benefits are actually received by the Executive during the period following the Executive's annual Base Salary plus termination, and any such benefits actually received by the Executive's Maximum Bonus Amount Executive shall be reported to the Company.
(as e) Nothing contained in effect as of this Section 7 shall prevent the date of termination). In Executive from receiving any and all benefits payable under any severance benefit plan or program maintained by the event that Company to which the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreemententitled.
Appears in 2 contracts
Sources: Employment Agreement (Universal Compression Holdings Inc), Employment Agreement (Universal Compression Inc)
Severance. Subject to Except as otherwise provided in Section 8, if the Executive's continued compliance ’s employment hereunder is terminated during the Employment Term, following the Executive’s initial twelve (12) months of employment, by the Company or is terminated due to expiration of the Employment Term following notice by the Company not to extend the Employment Term in accordance with his obligations under this AgreementSection 3, in each case other than for Cause or due to disability (as determined in the good faith discretion of the Board) or death, the Company Executive shall have no obligation be entitled to the Executive other than: receive as severance (subject to Section 9): (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum Executive’s base salary as in effect immediately prior to the date of the Executive's annual Base Salary plus ’s termination of employment for twelve (12) months, payable, commencing no later than sixty (60) days following such termination, in equal installments in accordance with the Company’s payroll procedures during the twelve (12) months following the date of the Executive's Maximum Bonus Amount ’s termination (such twelve-month period, the “Severance Period”); (ii) continued medical and dental benefits described in Section 4(c) for the Severance Period, at the same rate of employee and Company shared costs of such coverage as in effect as from time to time for active employees of the date Company; and (iii) a pro rata portion (based on the number of days the Executive was employed by the Company during the calendar year of termination), 50% ) of which shall be paid to any incentive bonus otherwise payable in accordance with Section 4(b) for the Executive upon the first business day following the six month anniversary of the date year of termination of employment and the remainder of Executive’s employment, payable no earlier than the date on which shall be such bonus, if any, would have been paid to under the Executive in equal installments each month thereafter for six months; (iv) treatment applicable plan or policy of the New Parent Restricted Shares (andCompany absent such termination of employment, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A but no later than March 15 of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months calendar year immediately following the Closing, (A) in lieu calendar year of the benefit set forth such termination. With respect to any such continued medical and dental benefits described in clause (iii)ii) of the first sentence of this Section 7 for which the Executive is eligible, (I) if the Company cannot continue such benefits, the Company shall pay the Executive for the cost of such benefits; (II) such benefits shall be discontinued in the event the Executive becomes eligible for similar benefits from a lump sum cash amount equal successor employer (and the Executive’s eligibility for any such benefits shall be reported by the Executive to the product of Company); and (xIII) the multiple set forth Executive’s period of “continuation coverage” for purposes of Section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”), shall be deemed to commence on ATTACHMENT 1 and (y) the sum date of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of ’s termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementemployment.
Appears in 2 contracts
Sources: Employment Agreement (Associated Materials, LLC), Employment Agreement (Amh Holdings, LLC)
Severance. Subject to Except as otherwise provided in Section 8, if the Executive's continued compliance ’s employment hereunder is terminated during the Employment Term by the Company or is terminated due to expiration of the Employment Term following notice by the Company not to extend the Employment Term in accordance with his obligations under this AgreementSection 3, in each case other than for Cause or due to disability (as determined in the good faith discretion of the Board) or death, the Company Executive shall have no obligation be entitled to the Executive other than: receive as severance (subject to Section 9): (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum Executive’s base salary as in effect immediately prior to the date of the Executive's annual Base Salary plus ’s termination of employment for the longer period of twelve (12) months or the remaining Employment Term, payable, commencing no later than sixty (60) days following such termination, in equal installments in accordance with the Company’s payroll procedures during such applicable period following the date of the Executive's Maximum Bonus Amount ’s termination (such period, the “Severance Period”); (ii) continued medical and dental benefits described in Section 4(c) for the Severance Period, at the same rate of employee and Company shared costs of such coverage as in effect as from time to time for active employees of the date Company; and (iii) a pro rata portion (based on the number of days the Executive was employed by the Company during the calendar year of termination), 50% ) of which shall be paid to any incentive bonus otherwise payable in accordance with Section 4(b) for the Executive upon the first business day following the six month anniversary of the date year of termination of employment and the remainder of Executive’s employment, payable no earlier than the date on which shall be such bonus, if any, would have been paid to under the Executive in equal installments each month thereafter for six months; (iv) treatment applicable plan or policy of the New Parent Restricted Shares (andCompany absent such termination of employment, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A but no later than March 15 of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months calendar year immediately following the Closing, (A) in lieu calendar year of the benefit set forth such termination. With respect to any such continued medical and dental benefits described in clause (iii)ii) of the first sentence of this Section 7 for which the Executive is eligible, (I) if the Company cannot continue such benefits, the Company shall pay the Executive for the cost of such benefits; (II) such benefits shall be discontinued in the event the Executive becomes eligible for similar benefits from a lump sum cash amount equal successor employer (and the Executive’s eligibility for any such benefits shall be reported by the Executive to the product of Company); and (xIII) the multiple set forth Executive’s period of “continuation coverage” for purposes of Section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”), shall be deemed to commence on ATTACHMENT 1 and (y) the sum date of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of ’s termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementemployment.
Appears in 2 contracts
Sources: Employment Agreement (Associated Materials, LLC), Employment Agreement (Amh Holdings, LLC)
Severance. Subject If the Company terminates the Employee’s employment for reason other than for Cause, the Employee shall be entitled to the Executive's continued compliance following compensation and benefits:
a. The Company shall pay the Employee a lump sum equal to Employee’s W-2 compensation that would be payable hereunder but for such termination for the Thirty-six (36) month period on the first day of the month of the Employee’s termination, said sum to be paid within Thirty (30) days after the Employee’s termination of employment.
b. The Company shall pay the Employee all bonus of deferred compensation (whether in the form of cash, stock or otherwise) accrued but unpaid as of the Employee’s termination, said sum to be paid within Thirty (30) days after the Employee’s termination or employment.
c. For a period of Twenty-four (24) months after the Employee’s termination of employment with his obligations under this Agreementthe Company, the Company shall have no obligation continue to pay for and provide existing employee welfare benefits which the Executive other than: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (Employee is receiving as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment, including life insurance, health, medical, dental, vision and wellness, accidental death and dismemberment and disability benefits; provided, however that the Company’s obligations under this subsection shall terminate from the date that the Employee first becomes eligible after termination of employment and with the remainder of which shall be paid Company for similar coverage under another employer’s plan.
d. Notwithstanding anything to the Executive contrary in equal installments each month thereafter for six months; any Stock Option Agreement: (ivi) treatment all unvested shares underlying stock options shall become fully vested as of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) date of the Employee’s termination and (d); (vii) subject the Employee shall continue to be treated under each Stock Option Agreement as if the provisions of Section 409A Employee was an employee of the Code, immediate payout of benefits previously accrued under Company until the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal first to the product occur of (x) the multiple set forth on ATTACHMENT 1 and Twenty-Four (24) month anniversary of the Employee’s termination of employment or (y) the sum expiration of the Executive's annual base salary and exercise period provided for therein; provided, however, in the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu event of the benefit set forth Employee’s death or Disability after the date of the Employee’s termination of employment hereunder, the time for exercise after death or Disability prescribed in clause (iv) with respect the Stock Option Agreement shall apply. The provisions of this subsection shall also apply to any Purchased Parent Shares, any Purchased Parent Shares shall be returned all substitute stock options granted to the Company Employee in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect Employee’s Company stock options to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by which this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementsubsection applies.
Appears in 2 contracts
Sources: Executive Employment Agreement (Accentia Biopharmaceuticals Inc), Executive Employment Agreement (Accentia Biopharmaceuticals Inc)
Severance. (a) Subject to Section 12, if the Company terminates the Executive's continued compliance with employment (other than For Cause or as a result of the Executive’s death or Disability) pursuant to Section 10(a), or the Executive terminates his obligations under this Agreement, the employment for Good Reason pursuant to Section 10(b):
(i) The Company shall have no obligation (subject to Section 11(b) below):
(A) pay or cause to be paid to the Executive other than: a lump-sum payment, within ten (i10) the payment calendar days of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonusTermination Date, subject to the provisions of Section 409A of the Code; (iii) the payment of in an amount equal to the sum of (x) any unpaid Base Pay through the Executive's annual Base Salary plus Termination Date, (y) payment in respect of any accrued but unused paid time off or sick pay, and (z) payment in respect of any business expenses reimbursable under Section 7 of this Agreement that have been incurred but not reimbursed prior to the Executive's Maximum Bonus Amount Termination Date;
(as in effect as of the date of termination), 50% of which shall B) pay or cause to be paid to the Executive upon an amount equal to the sum of (I) 100% of the Executive's Base Pay in effect on the Termination Date (or in effect immediately prior to any reduction contemplated by Section 10 (b)(i)(B) hereof, whichever is higher) and (II) $400,000, such sum payable in twelve (12) monthly installments on the Company's last payroll date of each of the first business twelve (12) calendar months commencing immediately following the 60th day following the six month anniversary of the date of termination of employment and the remainder of which shall Termination Date; and
(C) pay or cause to be paid to the Executive, under all circumstances, any other compensation or benefits which may be owed or provided to or i n respect of the Executive in equal installments each month thereafter for six months; (iv) treatment accordance with the terms and provisions of any plans or programs of the New Parent Restricted Shares GENBAND Entities (andthe applicable payments under this Section 11 (a) collectively, the "Severance Payment); provided, however , that if applicablethe Executive is a Specified Employee, Purchased Parent Sharesexcept to the extent that any amounts payable to the Executive as a Severance Payment are not treated as deferred compensation under Section 409A, such as, for example, certain payments pursuant to a separation pay plan, the Severance Payment shall not be provided to the Executive until the earlier of (I) as described below in Section 4.4(b), (c) the expiration of the six-month period measured from the Separation from Service Date and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (xII) the multiple set forth on ATTACHMENT 1 and (y) the sum date of the Executive's annual base salary and death. All payments delayed pursuant to this paragraph shall be pa id, with interest thereon calculated at the "prime rate," as quoted from time to time during the relevant period in the Southwest Edition of The Wall Street Journal, on the first day of the seventh month following the Executive's target bonus amount Separation from Service Date (eachor the date of the Executive's death, if earlier), and all remaining payments due pursuant to this Agreement shall be pa id as otherwise provided herein;
(ii) The Executive shall be entitled to reimbursement for, or payment by or on behalf of the GENBAND Entities or any successor entities of, the premium cost for such group health plan coverage for which the Executive is entitled under the Consolidated Omnibus Budget Reconciliation Act of 1985 as amended ("COBRA") (and which the Executive properly and timely elects to receive with respect to the Executive or any Qualified Beneficiary (as defined in COBRA) whose continued coverage under such GENBAND Entity group health plan is continued and whose coverage derives from being the spouse or a dependent of the Executive) for so long as the Executive or, as in effect appropriate, such Qualified Beneficiary, remains eligible for continuation coverage as of immediately prior contemplated pursuant to COBRA and the Closing), (B) in lieu relevant group health plan of the benefit set forth in clause GENBAND Entities, but i n no event longer than twelve (iv12) months (such period of continued coverage, the "Continuation Period''). The GENBAND Parties shall at the same time as any such action (including payment of any reimbursement) make any payment that may be necessary to ensure that the Executive's after-tax position with respect to any Purchased Parent Shares, any Purchased Parent Shares health and welfare benefits or cash payments received pursuant to this Section 11(a)(ii) is not worse than the Executive's after-tax position in the event such benefits had been provided to the Executive while he was employed by the Company. Any such reimbursement or in-kind benefits provided under this Agreement shall be returned to made or provided by the Company in exchange for a refund GENBAND Parties on or before the last day of the full purchase price within 30 days Executive's taxable year following such return the taxable year in which the expenses are incurred, and (C) in lieu shall also satisfy all other requirements of the benefit set forth in clause (iv) regulations under Section 409A with respect to any Purchased Parent Sharessuch reimbursements. The amount of any such expenses reimbursed or in-kind benefits provided in one year shall not affect the expenses or in-kind benefits eligible for reimbursement or payment in any subsequent year, and the Executive’s right to such reimbursement or payment of any such expenses will not be subject to liquidation or exchange for any other benefit. Any tax gross-up payment provided under this Agreement shall be made or provided by the GENBAND Parties on or before the last day of the Executive’s taxable year following the taxable year in which the Executive will be paid a lump sum cash amount within 30 days following remits the date related taxes, and shall also satisfy all other requirements of termination of employment equal to any amount withheld by the Company in connection with any regulations under Section 83(b) election made by the Executive 409A with respect to the New Parent Restricted Sharesany such tax gross-ups; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause and
(iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum If such termination of the Executive's annual Base Salary plus employment occurs within twelve (12) months after a Change in Control, notwithstanding anything to the contrary in any applicable equity award agreement or equity plan, each Equity Award (including, but not limited to, any Equity Awards of Cayman Holdings, including the Class E Shares) granted to the Executive that is outstanding as of the Termination Date shall, without further action, become immediately fully vested, any automatic repurchase rights will fully lapse, and all restrictions with respect thereto shall lapse to the extent such Equity Awards have not otherwise vested, automatic repurchase rights have not lapsed, or any other restrictions with respect thereto have not otherwise lapsed on or prior to the Termination Date.
(b) The GENBAND Parties' obligations pursuant to this Section 11 shall be conditioned upon (i) the Executive's Maximum Bonus Amount (as in effect as termination of employment constituting a "separation from service" within the meaning of Section 1.409A-1(h) of the date Department of termination). In Treasury Regulations and (ii) the event that Executive's execution and delivery of a release, in substantially the form attached hereto as Exhibit A, on or prior to the 60th day following the Termination Date, which has not been revoked by the Executive is eligible prior to, and cannot be revoked by the Executive after, such 60th day. Further, for purposes of Section 409A, the Executive's right to receive the severance benefits provided for by installment payments pursuant to this Section 4.4(a)11 shall be treated as a right to receive a series of separate and distinct payments.
(c) Notwithstanding any other provision of this Agreement to the contrary, the Executive shall not be eligible to receive severance benefits parties' respective rights and obligations under this Section 11 and under Sections 12 through 30 will survive the expiration of this Agreement, any other Company plan, policy, or agreementexpiration of the Employment Term and the termination of the Executive's employment for any reason whatsoever.
Appears in 2 contracts
Sources: Employment Agreement (Ribbon Communications Inc.), Employment Agreement (Ribbon Communications Inc.)
Severance. Subject (i) In the event of any termination of the Executive’s employment for any reason, the Executive (or his estate) shall be entitled to (A) his Base Salary through the date of termination, (B) the value of his accrued but unused vacation and paid time off through the date of termination, (C) except in the case of termination for Cause, any bonus earned in a prior year but not yet paid on the date of termination, (D) reimbursement of all business expenses properly incurred prior to the date of termination consistent with Company policy, and (E) any benefits, including any continuation or conversion rights, provided under any employee benefit plan or policy of the Company (not including any severance, separation pay, or supplemental unemployment benefit plan), in accordance with the terms of such plan or policy (the “Accrued Benefits”).
(ii) In the event of termination of the Executive's continued compliance with his obligations under this Agreement’s employment by reason of death or Disability, the Company shall have no obligation pay or provide to the Executive other than: or the Executive’s estate (iA) the payment of Accrued Benefits, (B) the Executive's earned and unpaid compensation through ’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), for a period of six (6) months from the effective date of such termination; , (iiC) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days in the calendar year that the Executive is employed by the Company in such year of the Executive's annual Base Salary plus effective date of termination) and paid within thirty (30) days following such termination, and (D) continued health benefits for the Executive's Maximum Bonus Amount Executive and his eligible dependents at the Company’s expense (or such portion thereof as in effect as is then funded by the Company for other employees of the Company), if applicable, for the same period.
(iii) In the event of a nonrenewal or termination by the Company pursuant to Section 2 or Section 10(a)(iii), or if the Executive terminates this Agreement during the twelve (12) months after a Change of Control pursuant to Section 10(a)(v), the Company shall (A) pay or provide to the Executive the Accrued Benefits, (B) pay the Executive a pro-rata annual bonus in respect of the fiscal year in which the effective date of termination occurs (determined based on the number of days in the calendar year that the Executive is employed by the Company in such fiscal year of the effective date of termination), 50% with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of which shall be paid employment, (C) continue to pay the Executive upon his Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the first business day following Executive’s, and his eligible dependents’, health insurance benefits at Company’s expense (or such portion thereof as is then funded by the six month anniversary Company for other employees of the Company) for a period of twelve (12) months from the effective date of such termination, and (D) provide the Executive, at the Company’s expense, with senior executive level outplacement services for a period of twelve (12) months from the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (andtermination, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive using a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made reputable provider selected by the Executive with respect to the New Parent Restricted Shares; PROVIDEDCompany’s consent, FURTHERwhich shall not be unreasonably withheld, that in the event provided that such outplacement expenses shall not exceed $25,000 in any event.
(iv) Except as expressly provided in this Section 10(b), upon the termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus ’s employment, all payments hereunder shall cease.
(v) The payments and benefits described in Sections 10(b)(ii) and 10(b)(iii) are in lieu of, and not in addition to, any other severance arrangement maintained by the Company. The payments and benefits described in Sections 10(b)(ii) and 10(b)(iii), other than the Accrued Benefits, are conditioned on:
i. The Executive's Maximum Bonus Amount ’s (as or in effect as the case of Executive’s death, his/her estate’s) execution and delivery to the Company and the expiration of all applicable statutory revocation periods, by the sixtieth (60th) day following the effective date of terminationhis termination of employment, of a general release of claims against the Company and its affiliates substantially in the form attached hereto as Exhibit A (the “Release”). In the event that the Executive is eligible Subject to receive the severance benefits provided for by this Section 4.4(a)11 below, the payments and benefits described in Section 10(b)(ii) and 10(b)(iii) will begin to be paid or provided as soon as administratively practicable after the Release becomes irrevocable, provided that if the sixty (60) day period described above begins in one taxable year and ends in a second taxable year such payments or benefits shall not commence until the second taxable year.
ii. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be eligible required to receive severance seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits under described in Sections 10(b)(ii) and 10(b)(iii), and such benefits shall not be reduced or offset by an amounts received by the Executive from any other Company plansource, policy, or agreementexcept to the extent the Executive’s medical coverage is discontinued by reason of his acquiring other coverage.
Appears in 2 contracts
Sources: Employment Agreement (Recro Pharma, Inc.), Employment Agreement (Recro Pharma, Inc.)
Severance. Subject 6.1 In the event of a termination of the Executive’s employment by the Company for Cause, by the Executive without Good Reason, due to the expiration of the Term or as a result of the Executive’s death, the Executive shall be entitled to (i) his Base Salary earned but unpaid through and including the date of the termination of his employment, (ii) any unpaid bonus that is earned and accrued for any completed Fiscal Year, and (iii) any benefits or payments to which the Executive is entitled under any Company plan, program, agreement, or policy (collectively, “Accrued Amounts”).
6.2 In the event the Executive’s employment is terminated as a result of a Change in Control (as defined below) as determined by the Board in its sole discretion, by the Company without Cause (which does not include termination due to expiration of the Term) or by the Executive for Good Reason during the Term, the Executive shall be entitled to the Accrued Amounts and, subject to the Executive's continued compliance with his obligations under this Agreement’s signing, returning to the Company and not revoking a release of claims for the benefit of the Company, in the form provided by the Company (the “Release”), the Executive shall be entitled to receive, and the Company shall be obligated to provide, the following severance benefits; provided, that, if the Executive should fail to execute such Release within 45 days following the later of (i) the Executive’s date of termination or (ii) the date the Executive actually receives an execution copy of such Release (which shall be delivered to the Executive within five (5) calendar days following the Executive’s termination date), the Company shall not have no obligation any obligations to provide the severance payments contemplated under this Section 6.2:
(a) Payment to the Executive other than: of an amount equal to the lesser of (i) 2.99 times the Base Salary in the year of such termination or (ii) the amount of Base Salary owed to the Executive for the remainder of the Term, in twenty-four (24) monthly payments, beginning within sixty (60) days following the termination date;
(b) Payment to the Executive of an amount equal to one hundred percent (100%) of the Bonus opportunity actually earned for the year prior to the year of termination, if any; this amount shall be paid in twenty-four (24) monthly payments, beginning within sixty (60) days following the termination date;
(c) The same level of health (i.e. medical, vision and dental) coverage and benefits as in effect for the Executive on the day immediately preceding the day of termination of employment; provided, however that (i) the payment Executive constitutes a qualified beneficiary, as defined in Section 4980B(g)(1) of the Executive's earned Code; and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject Executive elects continuation coverage pursuant to the provisions Consolidated Omnibus Budget Reconciliation Act of Section 409A 1985, as amended (“COBRA”), within the time period prescribed pursuant to COBRA. The Company shall continue to provide the Executive with such health coverage until the earlier of (A) the date the Executive is no longer eligible to receive continuation coverage pursuant to COBRA, or (B) twelve (12) months from the termination date; and
(d) The vesting of the CodeOption will accelerate on the date of termination as to that number of shares that would have become vested if the Executive had remained employed by the Company until the date twelve (12) months following the termination date. For avoidance of doubt, the Executive shall not be entitled to any severance benefits pursuant to this Section 6.2 if his employment is terminated by the Company for Cause, by the Executive without Good Reason or due to the Executive’s death or the expiration of the Term; provided that, in the event that the Executive’s employment is terminated by the Company for Cause or is terminated by the Executive without Good Reason (iii) a “Discretionary Severance Event”), the payment of Board (without the Executive’s participation), in its sole and absolute discretion, may choose to pay the Executive an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as payments referred to in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (csubsections 6.2(a) and (d); b) above, payable in twenty-four (v24) subject monthly payments, beginning within sixty (60) days following the termination date. Notwithstanding anything in this Section 6.2 to the provisions of Section 409A of the Codecontrary, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such the 60 day post-termination is within six months following period, during which the Closingpayments referred to in subsections 6.2(a) and (b) above are required to be made, (A) begins in lieu one taxable year of the benefit set forth Executive and ends in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum second taxable year of the Executive's annual base salary , the payments referred to in subsections 6.2(a) and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (Bb) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares above shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that second taxable year (and within such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination60 day period). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.
Appears in 2 contracts
Sources: Employment Agreement (FriendFinder Networks Inc.), Employment Agreement (FriendFinder Networks Inc.)
Severance. (a) If Executive has a Separation from Service as a result of Executive’s discharge by the Company without Cause or by reason of Executive’s resignation for Good Reason, in either case within sixty (60) days prior to a Change in Control or within eighteen (18) months following a Change in Control, Executive shall be entitled to receive, in lieu of any severance benefits to which Executive may otherwise be entitled under any severance plan or program of the Company, the benefits provided below, which, with US-DOCS\74791313.2 respect to clause (ii), will be payable in a lump sum on the day that is sixty (60) days following the date of Executive’s Separation from Service:
(i) The Company shall pay to Executive his or her fully earned but unpaid base salary, when due, through the date of Executive’s Separation from Service at the rate then in effect, reimbursement of business expenses incurred prior to the date of Executive’s Separation from Service and properly submitted in accordance with Company policy, plus all other benefits, if any, under any Company group retirement plan, nonqualified deferred compensation plan, equity award plan or agreement (other than any such plan or agreement pertaining to Stock Awards whose treatment is prescribed by Section 3(a)(iv) below), health benefits plan or other Company group benefit plan to which Executive may be entitled pursuant to the terms of such plans or agreements at the time of Executive’s Separation from Service (the “Accrued Obligations”);
(ii) Subject to the Section 3(c) and Executive's ’s continued compliance with his obligations Section 4, Executive shall be entitled to receive severance pay in an amount equal to two hundred percent (200%) multiplied by the sum of (x) Executive’s annual base salary as in effect immediately prior to the date of Executive’s Separation from Service, plus (y) Executive’s target annual bonus for the calendar year in which Executive’s Separation from Service occurs;
(iii) Subject to Section 3(c) and Executive’s continued compliance with Section 4, for the period beginning on the date of Executive’s Separation from Service and ending on the date which is eighteen (18) full months following the date of Executive’s Separation from Service (or, if earlier, the date on which the applicable continuation period under this Agreementthe Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) expires) (the “COBRA Coverage Period”), the Company shall have no obligation continue to provide Executive and his or her eligible dependents who were covered under the Company’s health insurance plans as of the date of Executive’s Separation from Service with health (including medical and dental) insurance benefits substantially similar to those provided to Executive and his or her dependents immediately prior to the Executive other than: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; Separation from Service. If any of the Company’s health benefits are self-funded as of the date of Executive’s Separation from Service, or if the Company cannot provide the foregoing benefits in a manner that is exempt from or otherwise compliant with applicable law or the provision of such benefits may result in the Company incurring penalties under applicable law (iiincluding, without limitation, Section 409A of the Code and Section 2716 of the Public Health Service Act), instead of providing continued health insurance benefits as set forth above, the Company shall instead pay to Executive an amount equal to the monthly premium payment for Executive and his or her eligible dependents who were covered under the Company’s health plans as of the date of Executive’s Separation from Service (calculated by reference to the premium as of the date of Separation from Service) as currently taxable compensation in substantially equal monthly installments over the COBRA Coverage Period (or the remaining portion thereof);
(iv) Subject to Section 3(c) and Executive’s continued compliance with Section 4, the vesting and/or exercisability of each of Executive’s outstanding Stock Awards (other than Performance Awards, which will vest as to the “target” number of shares subject to such performance Awards, except to the extent alternative acceleration is specifically provided for pursuant to the grant documents) shall be accelerated in full effective as of the later of (A) the date of Executive’s Separation from Service or (B) the date of the Change in Control (provided that payment or settlement of any deferred bonus, subject such Stock Awards may be delayed as provided in the grant documents to the provisions of extent required by Section 409A of the Code; (iii). Nothing in this Section 3(a)(iv) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid construed to limit any more favorable vesting applicable to Executive’s Stock Awards in the Executive upon Company’s equity plan(s) and/or the first business day following stock award agreements under which the six month anniversary Stock Awards were granted. The foregoing provisions are hereby deemed to be a part of the date of termination of employment each Stock Award and the remainder of which shall be paid to the Executive supersede any less favorable provision in equal installments each month thereafter for six monthsany agreement or plan regarding such Stock Award; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); US-DOCS\74791313.2
(v) subject Notwithstanding any other provision of this Agreement to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Sharescontrary, any Purchased Parent Shares severance benefits payable to Executive under this Agreement shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to reduced by any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld severance benefits payable by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary an affiliate of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits such individual under any other Company policy, plan, policyprogram, agreement or agreementarrangement, including, without limitation, any severance agreement between such individual and any entity.
Appears in 1 contract
Severance. Subject to the Executive's continued compliance with his obligations under For purposes of this Agreement, Executive's entitlement to any severance payments upon termination of his employment shall be as set forth below:
(a) If Executive is terminated by the Company shall have no obligation "without Cause" pursuant to the Executive other than: Section 3.1(a) or Section 3.1(b) or resigns for Good Reason (i) Executive shall be entitled to severance pay of 1.5 times the payment sum of the Executive's earned and unpaid compensation through annual rate of base salary then in effect plus Executive's bonus for the effective last full fiscal year, payable in a lump sum on the date of such termination; (ii) all of Executive's rights to purchase common stock of the payment of any deferred bonusCompany, subject pursuant to the provisions of Section 409A of the Code; Option Agreement, or any rights to receive restricted stock pursuant to any restricted stock agreement shall vest, and (iii) at the payment option of Executive, the Company shall either (A) loan Executive an amount equal to the sum all applicable federal and state taxes recognized by Executive as a result of the Executive's annual Base Salary plus vesting of restricted stock pursuant to subsection (ii) above (the Executive's Maximum Bonus Amount (as in effect as "Recognized Taxes"), including, without limitation, all federal and state income and Medicare taxes, which loan shall bear interest at the lowest rate at which interest income shall not be imputed to Executive for federal income tax purposes, interest and principal being due and payable at the earlier of an IPO or 3 years from the date of termination)Severance, 50% or (B) purchase from Executive, at such price as Executive and Company may agree upon, so many shares so vested as are necessary to pay the Recognized Taxes;
(b) In the event of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of a Section 1.1 Termination, a termination of employment and the remainder Executive "for Cause," a termination by Executive for any reason other than Good Reason, or any other termination of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans Executive (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit other than as set forth in clause (iiiSection 3.3(a)), the Company then Executive shall not receive any severance pay the (and Executive a lump sum cash amount equal shall forfeit all unused vacation time and any stock options or restricted stock which has not then vested), unless, and to the product extent that, some severance pay is approved in writing by the Board of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum Directors of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination)its sole discretion. In the event the Executive shall provide thirty days prior written notice of his intent to resign, the Company may accept such resignation effective as of any date during such thirty day period as the Company deems appropriate, provided that the Executive is eligible shall receive from the Company the per diem portion of his salary and be entitled to participate at the Company's expense in any Company sponsored benefit programs in which he was a participant as of the effective date of his resignation for the duration of such thirty day period. Notwithstanding the foregoing, Executive shall receive the severance benefits provided per diem portion of such annual salary that is accrued but unpaid up to the date of any termination for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementCause.
Appears in 1 contract
Sources: Employment Agreement (Realmed Corp)
Severance. If prior to the expiration of the Term the Company shall terminate the Executive’s employment without “cause” pursuant to Section 4(c) above, then upon the Executive’s execution of the Release attached hereto as Exhibit A (the “Release”) the Executive shall be entitled to continue to receive, as severance payments (such severance payments being the Executive’s sole entitlement upon any such termination), (i) Base Salary compensation provided for by Section 3(a) above, payable upon the Company’s periodic payroll schedule, for a period of one (1) year immediately following the date of such termination and (ii) to the extent he is then a participant in the Company’s health insurance plan and eligible for benefits under plan terms, to continued health insurance coverage for one (1) year immediately following such termination at then existing employee contribution rates, which the Executive shall pay (such continued coverage to run concurrently with any continued coverage obligation under the federal law known as COBRA or any state equivalent). Subject only to the Executive's continued compliance ’s delivery of the Release, the Company’s obligation under this Section 4(e) shall be absolute and unconditional, and the Executive shall be entitled to such severance payments regardless of the amount of compensation the Executive may earn or be entitled to with respect to any other employment he may obtain during the period for which severance payments are payable. If the Executive’s employment with the Company is terminated pursuant to Sections 4(a) or 4(b) above, if the Company terminates the Executive’s employment with “cause” pursuant to Section 4(c) above, if the Executive terminates his obligations employment pursuant to Section 4(d) above, or if the Executive’s employment is terminated for any reason after the Term, then the Executive shall not be entitled to any further payments under this Agreement, including Base Salary, Bonus, Employee Benefits, or severance. To the Company shall have no obligation to the Executive other than: extent that any amount payable under this Agreement constitutes an amount payable under a “nonqualified deferred compensation plan” (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of as defined in Section 409A of the Code; Internal Revenue Code (iiihereinafter, “Code Section 409A”)) the payment of an following a “separation from service” (as defined in Section 409A), including any amount equal payable under this Section 4, then, notwithstanding any other provision in this Agreement to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination)contrary, 50% of which shall such payment will not be paid made to the Executive upon until the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after following his “separation from service,” but only if he is then deemed by the Closing but prior to the first anniversary of the ClosingCompany, in lieu of accordance with any relevant procedures that it may establish, to be a “specified employee” under Code Section 409A at the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall time he “separates from service.” This paragraph will not be eligible to receive severance benefits under any other Company plan, policy, or agreementapplicable after Executive’s death.
Appears in 1 contract
Sources: Employment Agreement (ORBCOMM Inc.)
Severance. Subject to In the Executive's continued compliance with his obligations under event that, during the term of this Agreement, the Company shall have no obligation to terminates the Executive Employee's employment for any reason other than: (i) than Cause or Disability or the payment Employee voluntarily resigns his employment for Good Reason within one month of the Executive's earned and unpaid compensation through the effective date of such termination; a reduction of his Base Compensation or the Company's material breach of its obligations under Section 2(a), as the case may be, and Section 6 does not apply, then:
(iii) The Company shall pay an amount ("Severance Payment") in installments (or a lump sum if the payment of any deferred bonusCompany so elects), subject as provided below, equal in the aggregate to the provisions of Section 409A one hundred percent (100%) of the Code; (iii) the payment of an amount equal to the sum of the ExecutiveEmployee's annual rate of Base Salary plus the Executive's Maximum Bonus Amount (Compensation as in effect as of on the date of employment termination), 50% of which shall be less Base Compensation paid to the Executive upon the first business day following the six Employee for any period up to one (1) month anniversary of between the date of termination of employment and the date that notice thereof was given, plus any accrued and unpaid vacation at the time of such termination. The Severance Payment shall be made in installments at the same rate and in accordance with the same schedule as Base Compensation would have been paid had employment continued until the Severance Payment has been made in full; provided, however, at its election the Company may at any time pay any remainder of which shall be paid to the Executive Severance Payment in equal installments each month thereafter for six months; a lump sum.
(ivii) treatment For the period of the New Parent Restricted Shares one (and, if applicable, Purchased Parent Shares1) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that year following such termination is within six months following (reduced by any period up to one (1) month between the Closing, (A) in lieu date of termination and the benefit set forth in clause (iiidate that notice thereof was given), the Company shall pay (i) reimburse the Executive Employee for dental and health insurance premiums required to be paid by the Employee for such one (1) year (or reduced) period to obtain COBRA continuation coverage within the meaning of Section 4980B(f) (2) of the Internal Revenue Code of 1986, as amended (the "Code"), provided the Employee elects such continuation coverage, and (ii) cause group long-term disability insurance coverage and basic term life insurance coverage with a lump sum cash amount equal death benefit of up to $100,000 then provided to the product of Employee by the Company, if any, to be continued for such one (x1) the multiple set forth on ATTACHMENT 1 and year (yor reduced) the sum of the Executive's annual base salary and the Executive's target bonus amount period (eachor, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall if such coverage cannot be returned continued or can only be continued at a cost to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by greater than the Company in connection with any Section 83(b) election made by would have incurred absent such termination, then, at the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding provisoCompany's election, the Company shall may either provide such long-term disability or term life insurance as may be available at no greater cost than one hundred fifty percent (150%) of what the Company would have incurred absent such termination or pay to the Executive over a 24-month period in equal monthly installments the product of Employee one hundred fifty percent (x150%) two and (y) the sum of the Executive's annual Base Salary plus amount of premiums the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible Company would have incurred to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.continue such coverage absent
Appears in 1 contract
Severance. Subject to the Executive's ’s continued compliance with his obligations under this Agreement, the Company shall have no obligation to the Executive other than: (i) the payment of the Executive's ’s earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to 200% (the “Severance Percentage”) of the sum of the Executive's ’s annual Base Salary plus the Executive's Maximum ’s Target Bonus Amount (as in effect as of 87.5% of the date of terminationBase Salary (but not the Additional Bonus), 50% of which amount shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; and (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) Options as described below in Section Sections 4.4(b), (c) and (dc); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's ’s benefit plans (excluding severance plans); PROVIDEDprovided, that in the event that such termination is within six months following the Closing, (A) in lieu during the first twelve (12) months of the benefit set forth in clause (iii)Employment Period, the Company Severance Percentage shall pay decline by 8.33% at the Executive end of each one month period commencing at the Effective Time to become a lump sum cash amount equal to Severance Percentage of 100% at the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum end of the Executive's annual base salary Initial Employment Period and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) if the termination without Cause occurs within the six-month period after a Change of Control (as defined in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing4.8 below), in lieu of the benefit cash severance benefits set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding provisoabove, the Company Executive shall pay receive the Executive payment over a 2412-month period in equal monthly installments of an amount equal to the product of (x) two the Severance Percentage and (y) the sum of the Executive's ’s annual Base Salary plus the greatest of (x) the Executive's Maximum ’s Target Bonus Amount (but not the Additional Bonus) as in effect as of the date of termination), (y) the Target Bonus (but not the Additional Bonus) paid to the Executive for the year immediately preceding the year in which the date of termination occurs, or (z) 87.5% of the Base Salary. In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementagreement of the Company or its Affiliates. With respect to clauses (i) and (ii), and for the avoidance of doubt, the fact that the Company might pay, after the Executive’s termination date, to its or its Affiliates’ employees a bonus relating to the Company’s performance during all or any part of the period when the Executive was an employee of the Company shall not give rise to any entitlement by the Executive to any such bonus, or to the Target Bonus or the Additional Bonus, whether as earned compensation, a deferred bonus, or otherwise.
Appears in 1 contract
Sources: Employment Agreement (Intelsat LTD)
Severance. Subject In exchange for Employee’s agreement to be bound by the Executive's continued compliance with his obligations terms of this Release, including, but not limited to, the release of claims in Section 3, Employee shall be entitled to receive the following, which shall be the exclusive severance benefits to which Employee is entitled, unless Employee has materially breached the provisions of this Release, in which case the last sentence of Section 4 shall apply:
(i) A cash payment in the amount of twelve (12) months’ base salary, or $ $301,959, payable in a lump sum within ten (10) days following the Effective Date;
(ii) For the period beginning on the Separation Date and ending on the date which is twelve (12) full months following the Separation Date (or, if earlier, the date on which the applicable continuation period under this AgreementCOBRA expires), the Company shall have no obligation to the Executive other than: either, at its option, (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; pay directly or (ii) reimburse Employee, for the costs associated with continuation coverage pursuant to COBRA for Employee and his eligible dependents who were covered under the Company’s health plans as of the Separation Date (provided that Employee shall be solely responsible for all matters relating to his continuation of coverage pursuant to COBRA, including, without limitation, his election of such coverage and his timely payment of premiums). If (A) any deferred bonusplan pursuant to which such benefits are provided is not, subject or ceases prior to the provisions expiration of the period of continuation coverage to be, exempt from the application of Code Section 409A of the Code; under Treasury Regulation Section 1.409A-1(a)(5), or (iiiB) the payment Company is otherwise unable to continue to cover Employee under its group health plans under applicable law or the terms of such plans, then, in either case, the Company shall instead pay to Employee an amount equal to the sum of monthly plan premium payment for Employee and his eligible dependents who were covered under the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect Company’s health plans as of the date Separation Date (calculated by reference to Employee’s premiums as of terminationthe Separation Date) as currently taxable compensation in substantially equal monthly installments over the foregoing twelve (12) month period (or the remaining portion thereof), 50% ; plus
(iii) the vesting and/or exercisability of which each of Employee’s outstanding stock options shall be paid automatically accelerated as to the Executive upon number of shares subject to such stock options that would have vested over the first business day twelve (12) month period following the six month anniversary Separation Date had Employee remained continuously employed by the Company during such period. Except as modified above, Employee's stock options shall continue to be governed by the terms and conditions of the date of stock option agreements and the Company’s equity plan pursuant to which such stock options were granted. The foregoing benefits shall be the exclusive benefits to which Employee is entitled in connection with his termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (andemployment, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to unless Employee has materially breached the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closingthis Release, in lieu which case the last sentence of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company Section 4 shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementapply.
Appears in 1 contract
Sources: General Release of Claims (Conatus Pharmaceuticals Inc.)
Severance. Subject (A) In the event that (a) your employment terminates pursuant to Section 7C or (b) after the expiration of the Employment Period if your employment continues as provided in Section 1, either you give notice of termination of employment to the Executive's continued compliance with his obligations under this Agreement, Company or the Company shall have no obligation to the Executive gives you notice of termination of employment other than: than for cause (as defined above) or disability, and provided that (i) within thirty (30) days prior to the payment expiration of the Executive's earned Employment Period ▇▇▇▇ had not offered to renew this Agreement on terms no less favorable to you than the terms then in effect, and unpaid (ii) within ninety (90) days following the expiration of the Employment Period ▇▇▇▇ has not tendered to you a new employment agreement executed on behalf of ▇▇▇▇ and containing such no less favorable terms, you shall receive the benefits set forth in Sections 8B, 8C and 8D. In the event your employment terminates pursuant to Section 7B (a), or as a result of your death, you shall receive the benefit set forth in Section 8D. Notwithstanding the foregoing provisions of this Section 8A, in the event your employment terminates under circumstances that entitle you to receive compensation through and other benefits pursuant to the April 1, 2004 Change of Control Severance Agreement between you and Nabi (the “Change of Control Severance Agreement”), you shall not receive the benefits set forth in Section 8B, 8C and 8D.
(B) Based on the effective date of such termination; , ▇▇▇▇ will pay you your base salary as of the effective date of such termination (ii“Severance Pay”) and maintain in effect such fringe benefits (including auto allowance) as are accorded to other similarly situated employees (to the payment of any deferred bonusextent allowed under, and subject to the provisions limitations of, applicable plans) for twenty-four (24) months. Severance Pay shall be made in equal bi-weekly installments.
(C) The Company shall pay for executive outplacement services up to $30,000 by an organization selected by ▇▇▇▇ in its sole discretion.
(D) All of your non-vested stock options, restricted stock or similar incentive equity instruments (“Options”) shall immediately vest. All such “Options” shall be exercisable for twenty-four (24) months past your termination date, except that no “Options” shall be exercisable beyond the original “Option” expiration date. To the extent the terms of any “Options” are inconsistent with this Agreement, the terms of this Agreement shall control.
(E) All payments or benefits to you under this Section 409A 8 (other than payments or benefits already accrued and otherwise due under ▇▇▇▇’s employee benefit plans or programs, or as a result of the Code; your death) will not be given unless you execute (iiiand do not rescind) the payment a written employment termination agreement in a form prescribed by ▇▇▇▇ containing terms consistent with this Agreement as well as a general release of an amount equal all claims against ▇▇▇▇ and related parties with respect to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of all matters occurring prior to or on the date of termination)the release, 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of including (but not limited to) employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law matters or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company matters in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of your termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.
Appears in 1 contract
Severance. Subject If, during the Term, other than within twelve (12) months following a Change in Control, the Executive experiences a Termination of Employment, either (a) by the Employer without Cause pursuant to Section 4.1(a)(2); or (b) by the Executive for Good Reason pursuant to Section 4.1(b)(2), then, upon her Termination of Employment, the Employer will pay in lieu of any severance payment applicable under any general severance policy (which Executive acknowledges she is not eligible for due to this Agreement) severance to the Executive in an amount equal to one (1) times her Annual Base Salary then in effect (the “Severance Pay”), with such amount payable in substantially equal cash installments not less frequently than monthly over the twelve-month period following Executive's continued compliance ’s Termination of Employment (the “Severance Payment Period”). So long as the Executive complies with his obligations under the requirements of Sections 5.2, 5.3, 6, 7 and 8 of this Agreement, the Company Severance Pay shall have no obligation to commence on the Executive other than: first payroll period (ithe “Initial Payment”) occurring on or after the 60th day following the Executive’s Termination of Employment (the “Severance Delay Period”). The Initial Payment shall include payment for any payroll periods which occur during the Severance Delay Period and the remaining Severance Pay shall continue until the expiration of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, Severance Payment Period subject to the provisions of Section 409A of this Agreement. If the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which Executive shall be paid entitled to receive Severance Pay pursuant to this Section 4.2, then, in addition to any Severance Pay payable to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid pursuant to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in this Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii)4.2, the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (eachEmployer shall, until such time as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible for Medicare, or some similar health care coverage provided by state or federal governments, or eligible to receive participate in or be covered by the severance benefits provided health plans of any employer other than the Employer, pay on the Executive’s behalf, or reimburse the Executive, for the cost of COBRA premiums incurred by this Section 4.4(a), the Executive shall not be eligible for her individual health coverage for the twelve (12) months following Termination of Employment (with any additional amounts incurred to receive severance benefits under any other Company plan, policy, or agreement.procure family coverage being the sole responsibility of the
Appears in 1 contract
Severance. Subject to the Executive's continued compliance with his obligations under this Agreement, the Company shall have no obligation to the Executive other than: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of ▇▇▇▇▇▇▇▇'▇ employment may be terminated at any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required time by law him --------- or by the terms Company (regardless of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu length or existence of any notice of expiration of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of terminationEmployment Period). In the event his employment terminates prior to the expiration of the Employment Period, ▇▇▇▇▇▇▇▇ shall be entitled to the payments specified in this paragraph 7. If Details terminates ▇▇▇▇▇▇▇▇'▇ employment other than for Cause (meaning fraud in the performance of his duties for, or responsibilities to, Details; breach of fiduciary duty in the performance of his duties for, or responsibilities to, Details; his commission of a felony or a crime involving an act that would substantially and adversely affect Details' image or reputation; or gross neglect of his duties or responsibilities or gross misconduct), or ▇▇▇▇▇▇▇▇ terminates his employment for Good Reason (meaning Details requires ▇▇▇▇▇▇▇▇ to relocate outside of the Colorado Springs area, or imposes duties on ▇▇▇▇▇▇▇▇ that are inconsistent with his executive position), Details will, in lieu of any other payments or benefits hereunder or otherwise, (i) continue to pay his base salary at the rate in effect on the Date of Termination through the expiration of the Employment Period, and (ii) pay him a prorated bonus for the period from the beginning of the year in which the Date of Termination occurred through the Date of Termination, to be paid at the same time that the Executive annual bonus for the full year is ordinarily paid pursuant to paragraph 4, in the amount, based on actual achievement of annual bonus targets for such full fiscal year, that would have been paid had his employment continued through the end of the year, prorated by the portion of the full year represented by the period ended on the Date of Termination. If ▇▇▇▇▇▇▇▇ or Details terminates his employment because of death, Details will, in lieu of any other payments or benefits hereunder or otherwise, (i) continue to pay his base salary through the Date of Termination at the rate then in effect and (ii) pay him a prorated bonus (pro rated in the manner set forth above) through the Date of Termination, to be paid at the same time that the annual bonus is ordinarily paid pursuant to paragraph 4. If ▇▇▇▇▇▇▇▇ or Details terminates his employment because of Disability, Details will, in lieu of any other payments or benefits hereunder or otherwise, (i) continue to pay his base salary at the rate then in effect for a period of one year from the date of such Disability, provided, however, that if ▇▇▇▇▇▇▇▇ is eligible to receive disability payments under a long-term disability plan of Details or the severance benefits provided Company, such payments of salary shall cease, and (ii) pay him a prorated bonus (pro rated in the manner set forth above) through the Date of Termination, to be paid at the same time that the annual bonus is ordinarily paid pursuant to paragraph 4. If Details terminates ▇▇▇▇▇▇▇▇'▇ employment for by this Section 4.4(a)Cause or ▇▇▇▇▇▇▇▇ terminates his employment for any reason other than Good Reason or death or Disability, the Executive shall not be eligible to receive severance benefits under Details will, in lieu of any other Company planpayments hereunder or otherwise, policypay his base salary through the Date of Termination, or agreementat the rate then in effect.
Appears in 1 contract
Severance. Subject (a) Upon termination of Executive’s employment with the Company by the Company without Cause or upon Executive’s resignation from employment for Good Reason, in either case absent a Change in Control, and in each case contingent upon Executive’s execution, non-revocation, and delivery of a Confidential Severance and Release Agreement in a form substantially similar to Exhibit A of this Agreement and acceptable to the Company (the “Release Agreement”), Executive shall be entitled to receive continued Base Salary, as in effect on Executive's continued compliance ’s last day of employment with his the Company (the “Separation Date”), less applicable withholdings and deductions, for one (1) year following the Separation Date payable in equal installment in accordance with the Company’s normal payroll practices, but no less frequently than monthly, which shall commence within fifteen (15) days following the Executive’s execution of the Release Agreement (“Severance Payments”); provided that the first installment payment shall include all amounts of Base Salary that would otherwise have been paid to Executive during the period beginning on the Separation Date and ending on the first payment date if no delay had been imposed.
(b) Upon termination of Executive’s employment with the Company by the Company without Cause or upon Executive’s resignation from employment for Good Reason, in either case within one (1) year following a Change in Control, in each case contingent upon Executive’s execution, non-revocation, and delivery of the Release Agreement, Executive shall be entitled to the following: (i) Severance Payments in amounts and on the terms specified in Section 6.4(a); and (ii) immediate and full vesting of and lifting of restrictions on any unvested equity awards pursuant to Section 5.3 above, and otherwise in accordance with the terms of the Plan and the applicable award agreements.
(c) The Company’s obligations under this Section 6.4 are subject to the requirements and time periods set forth in this Section 6.4 and in the Release Agreement. Prior to receiving the payments described in Section 6.4 Executive shall execute the Release Agreement on or before the date sixty (60) days after the Separation Date and shall not revoke such Release Agreement during any applicable revocation period. If Executive fails to timely execute and remit the Release Agreement, or revokes such Release Agreement, Executive waives any right to the payments provided under this Section 6.4. The Company will have no further obligations to Executive under this Agreement or otherwise after making payments pursuant to this Section 6.4, if any.
(d) Executive agrees that the payments set forth in this Agreement shall constitute the exclusive and sole remedy for any termination of Executive’s employment, and Executive covenants not to assert or pursue any other remedies, at law or in equity, with respect to any termination of employment. The foregoing shall not limit any of Executive’s rights, if any, with regard to indemnification, advancement or payment of legal fees and costs, and coverage under directors and officers liability insurance.
(e) Anything in this Agreement to the contrary notwithstanding, the Company shall have no obligation the right to terminate all payments and benefits owing to Executive pursuant to this Section 6.4 upon the Executive other than: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment Company’s discovery of any deferred bonus, subject to the provisions material breach by Executive of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the ’s continuing obligations under this Agreement or Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued ’s obligations under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementRelease Agreement.
Appears in 1 contract
Sources: Executive Employment Agreement (Lilis Energy, Inc.)
Severance. Subject to Provided the Executive's continued compliance with his obligations under this AgreementSeparation Date occurs, the Company shall have no obligation and the Executive agree that the Executive’s separation from employment with the Company will be treated as a “Qualifying Termination” (as defined in the Employment Agreement), provided that the employment is not terminated due to a termination for “Cause” (as defined in the Employment Agreement) prior to the Executive other than: Separation Date. Accordingly,
(ia) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the The Company shall pay the Executive an aggregate cash severance amount equal to Two Million and Forty-Thousand Dollars ($2,040,000.00) payable in a lump sum, less all applicable taxes, withholdings and deductions, in the first payroll period following the date on which the Agreement becomes effective and non-revocable, and as provided for in the Employment Agreement, subject to Sections 2.3, 2.4 and 4.6 below.
(b) Effective as of the Termination Date, and subject to Sections 2.3, 2.4 and 4.6 below, the Executive’s outstanding incentive equity awards shall be treated as set forth below:
(i) All of the Executive’s outstanding time-based restricted stock units (“RSUs”) which would have otherwise vested within one year following the Termination Date (totaling 16,737 RSUs) will become vested as of the Termination Date and settled in shares of Company common stock, to be provided to the Executive within sixty (60) days after the Termination Date, pursuant to the terms and conditions of (a) the Wyndham Hotels & Resorts, Inc. 2018 Equity and Incentive Plan and (b) Award Agreement – Restricted Stock Units, each dated (x) June 1, 2018, (y) February 27, 2019 and (z) February 25, 2020, between the Company and the Executive.
(ii) All of the Executive’s stock options which would have otherwise vested within one year following the Termination Date (totaling 30,541 options) will become vested as of the Termination Date and shall remain outstanding and exercisable for a period of two (2) years (but not beyond the original expiration date) immediately following the Termination Date, pursuant to the terms and conditions of (a) the Wyndham Hotels & Resorts, Inc. 2018 Equity and Incentive Plan and (b) Award Agreement – Non-Qualified Stock Options, each dated (x) June 1 2018, (y) February 27, 2019 and (z) February 25, 2020, between the Company and the Executive.
(iii) The Executive’s performance-based long term incentive awards (“PVRSUs”) held as of the Termination Date, shall vest and be paid pro-rata (totaling 11,832 shares), based upon the portion of the full performance period during which Executive was employed by the Company plus twelve (12) months (or if less, the entire performance period remaining after the Termination Date), provided only that the performance goals applicable to the PVRSUs are achieved. Payment of any such PVRSUs will occur at the same time that such PVRSUs are paid to actively-employed employees generally, as set forth in the Employment Agreement. The Executive has no other outstanding incentive awards, equity awards or equity rights with the Company or any Released Party (“Released Party” defined throughout the Agreement herein as defined in the Release identified in Section 2.4 and attached hereto as Exhibit A), except as set forth in subsection (b) and (h) and herein. For the avoidance of doubt, the Executive is not entitled to any future Company incentive awards or equity rights that may otherwise be provided to officers or employees of the Company after the date of this Agreement (January 19, 2021). Furthermore, for the avoidance of doubt, except as provided for in subsection (b) herein, nothing contained herein shall affect the terms of restricted stock shares or other equity compensation previously awarded to the Executive, under the Wyndham Hotels & Resorts, Inc. 2018 Equity and Incentive Plan, as amended from time to time (“WHR Plan”) which shall continue to be governed under the terms and conditions of the WHR Plan.
(c) The Executive shall continue to be eligible to participate in the Company’s Officer Deferred Compensation Plan and 401(k) Plan up to and including the Separation Date, in accordance with the terms thereof.
(d) The Executive shall continue to participate in the health plans in which she currently participates through the end of the month in which the Separation Date occurs. Following the Separation Date, the Executive may elect to continue dental and vision plan coverage in accordance with the provisions of the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), at her own expense; provided that the Company shall provide the Executive with a cash payment of twenty-nine thousand three hundred and fifty-four dollars ($29,354.00), less applicable taxes, withholdings and deductions (the “Health Reimbursement Payment”), which is meant to represent eighteen (18) months of the Executive’s estimated COBRA premiums for such coverage. The Health Reimbursement Payment shall be paid in a lump sum cash amount equal on or before the sixtieth (60th) day following the Separation Date, subject to Sections 2.3, 2.4 and 4.6 below.
(e) To the extent the Executive would otherwise be entitled as an executive of the Company to participate in the Company’s executive health physical program, such entitlement will be provided to the product of Executive through December 31, 2021.
(xf) The Executive shall be eligible to continue to use the multiple set forth on ATTACHMENT 1 and (y) vehicle provided to her through the sum of Company’s executive car lease program in which she currently participates, upon the Executive's annual base salary and the Executive's target bonus amount (each, same terms as currently are in effect as for her, through the Separation Date and for a grace period of immediately up to 15 calendar days thereafter. The Executive shall have the option to purchase the vehicle in accordance with the terms of such program for use, at her own expense. If the Executive chooses not to purchase the vehicle, the Executive shall relinquish the vehicle to the Company’s Human Resources Department on or before March 15, 2021.
(g) The Executive shall be entitled to outplacement services rendered by a firm selected by the Company, provided the services are utilized no later than twelve (12) months following the Separation Date.
(h) To the extent not otherwise paid prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent SharesSeparation Date, the Executive will be paid receive a 2020 Incentive Payment, in the form of an additional lump sum cash amount within 30 days following payment, subject to applicable taxes, withholdings and deductions, made payable, to the date extent made payable and in the percentage made payable to actively employed associates of termination the Company, at the same time that incentive compensation awards, if any, for calendar year 2020 are paid. The 2020 Incentive Payment will be made subject to and determined based on the Company’s attainment of employment equal applicable performance goals, as certified, and in accordance with the terms and conditions of the Wyndham Hotels & Resorts 2020 Global Annual Incentive Plan.
(i) The Executive may continue to use the financial services provided through the AYCO Company through the 2021 tax season ending on April 15, 2022.
(j) Notwithstanding any amount withheld by other provision of this Agreement or the Company in connection with any Section 83(b) election made by Employment Agreement, all payments to, vesting, benefits, and other rights of the Executive with respect under this Section 2.1 shall be subject to the New Parent Restricted Shares; PROVIDEDSections 2.3, FURTHER2.4 and 4.6 of this Agreement. In addition, that and without limitation of its rights at law or in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding provisoequity, the Company shall pay reserves the right to suspend payments to, vesting, benefits and other rights of the Executive over if the Company has a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event belief that the Executive is eligible to receive in breach of Section 3 of this Agreement, or otherwise is in breach of any representation, affirmation or acknowledgement by Executive under this Agreement or the severance benefits Release as defined in Section 2.4 herein and attached hereto as Exhibit A.
(k) Except as provided for by in this Section 4.4(a)2.1, the Executive shall acknowledges and agrees that she is not be eligible entitled to receive any severance benefits under any other Company severance plan, policyarrangement, agreement or program of the Company or its affiliates, or agreementany of the Released Parties or any Released Party.
(l) The Executive shall be entitled to keep her Company-issued iPhone (including the telephone number associated with the iPhone) (“Phone”), iPad (“iPad”), and laptop computer (“Laptop”). The Executive will provide the Company’s Information Security and Information Technology Departments with her Phone, iPad and Laptop, and the Company shall be permitted to image the Phone, iPad and Laptop, remove and replace the hard drive associated with the Laptop and otherwise erase all information from the Phone, iPad and Laptop, and then return the Phone, iPad and Laptop to the Executive for her personal use. The Executive shall assume all financial responsibility associated with the Phone, iPad and Laptop as of the Separation Date. The Company will provide reasonable transitional IT assistance.
Appears in 1 contract
Sources: Separation and Release Agreement (Wyndham Hotels & Resorts, Inc.)
Severance. Subject to the Executive's continued compliance with his obligations under this Agreement, the Company shall have no obligation to the Executive other than: (ia) the payment Upon termination of the Executive's earned and unpaid compensation through employment (i) by the effective date of such termination; Company at any time following a "change in control" (as defined herein), or (ii) by the payment of any deferred bonus, subject to Executive during the provisions of Section 409A of the Code; twelve (iii12) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount months following a "change in control" (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iiihereinafter defined), the Company shall pay be obligated to provide to the Executive (or his estate if the Executive shall have died after termination) salary, bonus and benefits in the amount and kind then in effect (and in the case of bonus, paid during the most recently completed fiscal year) pursuant to Paragraphs 4 and 5(b) hereof, for three years following his discharge. Payment of such salary and bonus to the Executive (or his estate) shall be made in a lump sum cash no later than thirty (30) days after the date of such Termination; provided, however, that the aggregate amount equal of such payments and benefits shall be reduced to the product extent necessary to avoid the treatment of such payments as "parachute payments" (xi) not deductible by the multiple set forth on ATTACHMENT 1 Company under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and (yii) subject to the sum excise tax under Section 4999 of the Code.
(b) The Company acknowledges and agrees that the Executive shall be entitled to receive all of the payments provided for herein regardless of any income which the Executive may receive from other sources after the termination of his employment with the Company.
(c) Nothing in this Paragraph 6 shall confer upon the Executive the right to continue in the employ of the Company or any of its subsidiaries or, subject to the terms hereof, shall affect any right which the Company may have to terminate the employment of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior . No benefit provided herein is intended or shall be deemed to be granted to the Closing), (B) Executive in lieu of any benefits, rights or privileges to which the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall Executive may be returned to entitled while he is an employee of the Company in exchange for a refund under any retirement, pension, insurance, hospitalization, stock option, stock purchase, incentive compensation or other plan of the full purchase price within 30 days following Company which may now be in effect or which may hereafter be adopted, it being understood that the Executive shall have the same rights and privileges to participate in such return and (C) in lieu plans as any other executive employee of the benefit set forth in clause Company.
(ivd) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible commences litigation to receive the severance benefits provided for by enforce his rights under this Section 4.4(a)Paragraph 6 and prevails in such litigation, the Executive shall not be eligible entitled to receive severance benefits under recover his costs and expenses, including reasonable attorneys' fees.
(e) For purposes of this Agreement, "change in control" shall mean the acquisition, directly or indirectly, by any other "person" or "group" of "persons" (as these terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 and the rules thereunder) of beneficial ownership of securities of the Company planor of securities of the Company's ultimate parent corporation, policyif any, representing 30% or agreementmore of the combined voting power of the then outstanding securities of such corporation.
Appears in 1 contract
Severance. Subject a) Except as set forth in Section 2(b) below, in the event that your employment is terminated by Cubist for any reason other than for Cause, then, following, and subject to, receipt by Cubist of your signed and effective release of claims as more fully described in Section 7 below (and your not revoking such release during any applicable revocation period), Cubist shall pay you starting sixty (60) days following the date of your employment termination (or on the next succeeding business day if such date is not a business day), an amount equal to eighteen (18) months of your then-current base salary, with such payment to be made in twelve (12) equal semi-monthly installments, with the first payment retroactive to the Executive's continued compliance with his obligations day immediately following the date your employment terminated.
b) In the event that, within twenty-four (24) months after a Change of Control, your employment is terminated either (i) by Cubist for any reason other than for Cause or (ii) by you for Good Reason, then, following, and subject to, receipt by Cubist of your signed and effective release of claims as more fully described in Section 7 below (and your not revoking such release during any applicable revocation period), Cubist shall make a one-time, lump-sum payment to you equal to eighteen (18) months of your then current base salary plus Bonus on the sixtieth (60th) day following the termination of your employment (or on the next succeeding business day if such date is not a business day).
c) In the event that you become entitled to severance payments under Section 2(a) or 2(b) of this Agreement, the Company shall have no obligation subject to the Executive other than: (i) your having timely elected continuation coverage under the federal law known as “COBRA”, (ii) your timely payment of the Executive's earned active employee portion of the monthly COBRA premium for each month during the period described below and unpaid compensation through (iii) such continuation coverage not having terminated, for a period of up to eighteen (18) months beginning on the effective first day of the month after the month in which your employment terminates or, if earlier, until such time as your COBRA coverage terminates, Cubist shall be responsible for the balance of the premium during this period.
d) Notwithstanding any other provision with respect to the timing of payments under this Section 2, in order to comply with the requirements of Section 409A, if any amount or benefit to be paid to you pursuant to this Agreement as a result of your termination of employment constitutes “deferred compensation” within the meaning of, and subject to, Section 409A, if you are a “specified employee” (as determined by Cubist in its sole discretion and as defined below) on the date of such your termination of employment, any payment or benefit or portion thereof, if any, that is scheduled to be paid or provided to you hereunder during the first six (6) months following the date of your termination of employment shall not be paid until the date which is the first business day of the seventh month following your termination; (ii. For purposes of the preceding sentence, the term “specified employee” means an individual who is determined by Cubist to be a specified employee under Section 1.409A-1(i) of the payment of any deferred bonusTreasury Regulations. Cubist may, but need not, elect in writing, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of applicable limitations under Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms any of the Company's benefit plans special elective rules prescribed in Section 1.409A-1(i) of the Treasury Regulations for purposes of determining “specified employee” status. Any such written election shall be deemed part of this Agreement. For purposes of the Treasury Regulations under Section 409A, each payment described in this Section shall be treated as a separate payment.
e) For purposes of this Agreement, references to termination of employment, separation from service and similar or correlative terms mean a “separation from service” (excluding severance plans); PROVIDEDas defined at Section 1.409A-1(h) of the Treasury Regulations) from Cubist and from all other corporations and trades or businesses, if any, that in the event that such termination is within six months following the Closing, (Awould be treated as a single “service recipient” with Cubist under Section 1.409A-1(h)(3) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of Treasury Regulations. A termination of employment equal for Good Reason or by Cubist for any reason other than for Cause under this Agreement is intended to any amount withheld by satisfy the Company meaning of “involuntary separation from service” (as defined in connection with any Section 83(b1.409A-1(n) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of terminationTreasury Regulations). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.
Appears in 1 contract
Severance. (a) Subject to Sections II(b) and II(c) below, the Company shall pay as severance pay to Executive ("Severance Benefit") twelve payments of Forty Six Thousand One Hundred Sixty Three Dollars ($46,163) per payment, less in each case standard withholding and authorized deductions, with the first such payment being made in June 2007 and a subsequent payment being made in each of the next eleven calendar months thereafter (ending with the payment in May 2008). In addition, the Company shall pay or reimburse Executive's continued compliance costs for outplacement services under the Company's outplacement program with his obligations under this AgreementChallenger, ▇▇▇▇ and Christmas incurred during the twelve (12) month period following the Separation Date up to a maximum of $15,000.
(b) Notwithstanding the foregoing, for a period of twelve (12) months following the Separation Date (the "Mitigation Period"), Executive shall have the affirmative duty to take reasonable efforts to seek other employment in which Executive is reasonably qualified or otherwise to mitigate Executive's right to any and all portions of the Severance Benefit. In the event the Company believes Executive has breached her agreement to seek other employment in which Executive is reasonably qualified or otherwise to mitigate Executive's right to any and all portions of the Severance Benefit, the Company agrees that it will notify Executive in writing (with such notice to be given in accordance with the notice provisions of this Separation Agreement) of such belief not less than fourteen (14) days prior to the Company's termination of any payments otherwise due to Executive pursuant to this Separation Agreement. Any money or other valuable consideration earned or otherwise received by Executive or credited to Executive's account (whether presently or on a deferred basis) from the provision of services (whether as an employee, independent contractor, consultant, advisor, or otherwise) during the Mitigation Period shall be offset against and serve to decrease any amounts of the Severance Benefit previously paid or payable to Executive under Section II(a). Executive agrees to notify the Company in writing immediately upon receiving or earning any such money or other valuable consideration. In addition, and without limiting the foregoing, the Company's obligation to pay the Severance Benefit (or any portion thereof, as applicable) is subject to the condition precedent that Executive shall have complied with the restrictive covenants set forth in Section VII hereof. The Company shall have no obligation to pay the Severance Benefit at any time after a breach by Executive other than: (i) of any covenant set forth in Section VII. Notwithstanding the payment foregoing provisions of this Section II(b), however, in no event shall the amount of the Executive's earned and unpaid compensation through Severance Benefit actually paid by the effective date of such termination; Company to Executive be less than Ten Thousand Dollars (ii$10,000) in the payment aggregate, regardless of any deferred bonusbreach by Executive of the foregoing, which amount the parties agree is good and sufficient consideration for the Release and other obligations of Executive under this Separation Agreement.
(c) The Company's obligation to pay the Severance Benefit (or any portion thereof, as applicable) is further subject to the provisions of Section 409A of condition precedent that Executive shall not have revoked the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit Release set forth in clause (iii), the Section III hereof pursuant to any revocation rights afforded by applicable law. The Company shall have no obligation to pay the Severance Benefit to Executive a lump sum cash amount equal to unless and until the product Release becomes irrevocable by Executive under the Age Discrimination in Employment Act of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement1967.
Appears in 1 contract
Sources: Employment Separation Agreement (Pacific Sunwear of California Inc)
Severance. Subject In the event that Employee is subject to a Change in Control Involuntary Termination, Employee shall be entitled to receive severance benefits as follows: (A) a lump sum cash severance payment equal to two (2) times the higher of (1) the base salary which Employee was receiving immediately prior to the Executive's continued compliance with his obligations under this Agreement, Change in Control or (2) the Company shall have no obligation base salary which Employee was receiving immediately prior to the Executive other than: (i) the Change in Control Involuntary Termination, which payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to on the Executive upon the first business sixtieth (60th) day following the six month anniversary Change in Control Involuntary Termination; (B) a lump sum cash payment equal to two (2) times Employee’s Target Annual Bonus; and (C) payment by the Company of the date full cost of termination of employment the health insurance benefits provided to Employee and the remainder of which shall be paid Employee’s spouse and dependents, as applicable, immediately prior to the Executive Change in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject Control pursuant to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (excluding severance plans“COBRA”) or other applicable law through the earlier of the end of the twenty-four (24) month period following the Change in Control Involuntary Termination date or the date upon which Employee is no longer eligible for such COBRA or other benefits under applicable law. The benefits to be provided under clauses (a)(i) and (a)(ii) shall be paid on the sixtieth (60th) day following Employee’s termination of employment; except that any payments under clause (a)(ii)(C) shall be paid on a monthly basis commencing on the sixtieth (60th) day following Employee’s termination of employment (subject in all cases to Employee’s release of claims against the Company as set forth in Section 1(a); PROVIDED). Notwithstanding the foregoing, that in the event the Board of Directors concludes in its reasonable judgment that such termination the provision of subsidized COBRA benefits to Employee is within six months following likely to cause the Closing, (A) in lieu Company to become subject to excise tax as a result of the benefit set forth in clause Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (iiithe “Healthcare Reform Act”), the Company shall pay the Executive Employee a lump sum monthly amount in cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum amount of the Executive's annual base salary and COBRA subsidy during the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to period the Company in exchange is obligated to provide subsidized COBRA benefits to Employee. In addition, Employee shall receive payment(s) for a refund of the full purchase price within 30 days following such return all salary, bonuses and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect unpaid vacation accrued as of the date of terminationEmployee’s termination of employment and up to three (3) months of outplacement services not to exceed $5,000 per month (with a provider and in a program selected by the Employee, provided Employee commences such services within ninety (90) days of Employee’s Change in Control Involuntary Termination date). In For the event that the Executive is eligible avoidance of doubt, if any payments or benefits have been provided pursuant to receive the severance benefits provided for by Section 2(b)(ii) and this Section 4.4(a2(a)(ii) becomes applicable, such payments or benefits shall directly reduce the payments and benefits due hereunder and no further payments or benefits shall be provided pursuant to Section 2(b)(ii), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.
Appears in 1 contract
Severance. Subject In connection with the termination of the Executive’s employment on the Separation Date, Executive shall be entitled to the Executive's following severance payments and benefits, consisting of (i) (A) earned but unpaid base salary (B) any earned but unpaid bonus for which the performance measurement period has ended prior to the Separation Date, (C) any accrued but unused vacation as of the Separation Date, and (D) unreimbursed but substantiated business expenses, in each case, payable as a lump sum within five (5) days of the Separation Date; and subject to Section 2(f), Section 2(g), Section 2(h) and continued compliance with his obligations under this AgreementSection 1(c) herein, the Company Executive shall have no obligation be entitled to the Executive other than: (iii) the payment continuation of the Executive's earned and unpaid compensation through ’s monthly base salary (at the effective date rate of such termination; $54,187.50 per month) in accordance with the Company’s normal payroll practices for a period of twenty-four (24) months following the Separation Date (“Severance”) (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount $30,428.37, payable within thirty (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day 30) days following the six month anniversary Separation Date, and (iii) subject to (A) Executive’s timely election of continuation coverage under the date Consolidated Omnibus Budget Reconciliation Act of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; 1985, as amended (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c“COBRA”) and (d); (vB) subject Executive’s continued copayment of premiums at the same level and cost to Executive as if the provisions of Section 409A Executive were an employee of the CodeCompany (excluding, immediate payout for purposes of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefitscalculating cost, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iiian employee’s ability to pay premiums with pre-tax dollars), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following entitled to (C) continued participation in the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect Company’s group health plan (to the New Parent Restricted Shares; PROVIDEDextent permitted under applicable law and the terms of such plan) which covers Executive (and Executive’s eligible dependents) for a period of eighteen (18) months at the Company’s expense, FURTHER, that to be paid in the event that such termination is on or after the date that is six months after the Closing but prior form of reimbursements to the first anniversary of the ClosingExecutive, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event provided that the Executive is eligible to receive and remains eligible for COBRA coverage; provided, further, that the severance benefits provided for Company may modify the continuation coverage contemplated by this Section 4.4(a)2(a)(iii)(C) to the extent reasonably necessary to avoid the imposition of any excise taxes on the Company for failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and/or the Health Care and Education Reconciliation Act of 2010, as amended (to the extent applicable) and (D) to the extent COBRA coverage expires after eighteen (18) months permitted by COBRA, Executive shall be entitled to up to six (6) months of cash payments equal to the Company’s average monthly cost paid pursuant to Section 2(a)(iii)(C) for the previous eighteen (18) months during COBRA coverage. Notwithstanding anything to the contrary, Executive shall not be eligible entitled to receive severance any payments or benefits under any other Company planthis Section 2(a)(iii) following December 13, policy2019. The Company’s first payment of Severance shall occur on the first scheduled payment date immediately following the date the General Release becomes irrevocable pursuant to Section 2(f), or agreementand such first payment shall include all payments scheduled to be made between the period of the Separation Date and the date the General Release becomes irrevocable.
Appears in 1 contract
Severance. (a) If Executive has a Separation from Service as a result of Executive’s discharge by the Company without Cause or by reason of Executive’s resignation for Good Reason, in either case within sixty (60) days prior to a Change in Control or within eighteen (18) months following a Change in Control, Executive shall be entitled to receive, in lieu of any severance benefits to which Executive may otherwise US-DOCS\75068345.1 be entitled under any severance plan or program of the Company, the benefits provided below, which, with respect to clause (ii), will be payable in a lump sum on the day that is sixty (60) days following the date of Executive’s Separation from Service:
(i) The Company shall pay to Executive his or her fully earned but unpaid base salary, when due, through the date of Executive’s Separation from Service at the rate then in effect, reimbursement of business expenses incurred prior to the date of Executive’s Separation from Service and properly submitted in accordance with Company policy, plus all other benefits, if any, under any Company group retirement plan, nonqualified deferred compensation plan, equity award plan or agreement (other than any such plan or agreement pertaining to Stock Awards whose treatment is prescribed by Section 3(a)(iv) below), health benefits plan or other Company group benefit plan to which Executive may be entitled pursuant to the terms of such plans or agreements at the time of Executive’s Separation from Service (the “Accrued Obligations”);
(ii) Subject to the Section 3(c) and Executive's ’s continued compliance with his obligations Section 4, Executive shall be entitled to receive severance pay in an amount equal to one hundred percent (100%) multiplied by the sum of (x) Executive’s annual base salary as in effect immediately prior to the date of Executive’s Separation from Service, plus (y) Executive’s target annual bonus for the calendar year in which Executive’s Separation from Service occurs;
(iii) Subject to Section 3(c) and Executive’s continued compliance with Section 4, for the period beginning on the date of Executive’s Separation from Service and ending on the date which is twelve (12) full months following the date of Executive’s Separation from Service (or, if earlier, the date on which the applicable continuation period under this Agreementthe Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) expires) (the “COBRA Coverage Period”), the Company shall have no obligation continue to provide Executive and his or her eligible dependents who were covered under the Company’s health insurance plans as of the date of Executive’s Separation from Service with health (including medical and dental) insurance benefits substantially similar to those provided to Executive and his or her dependents immediately prior to the Executive other than: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; Separation from Service. If any of the Company’s health benefits are self-funded as of the date of Executive’s Separation from Service, or if the Company cannot provide the foregoing benefits in a manner that is exempt from or otherwise compliant with applicable law or the provision of such benefits may result in the Company incurring penalties under applicable law (iiincluding, without limitation, Section 409A of the Code and Section 2716 of the Public Health Service Act), instead of providing continued health insurance benefits as set forth above, the Company shall instead pay to Executive an amount equal to the monthly premium payment for Executive and his or her eligible dependents who were covered under the Company’s health plans as of the date of Executive’s Separation from Service (calculated by reference to the premium as of the date of Separation from Service) as currently taxable compensation in substantially equal monthly installments over the COBRA Coverage Period (or the remaining portion thereof);
(iv) Subject to Section 3(c) and Executive’s continued compliance with Section 4, the vesting and/or exercisability of each of Executive’s outstanding Stock Awards (other than Performance Awards, which will vest as to the “target” number of shares subject to such performance Awards, except to the extent alternative acceleration is specifically provided for pursuant to the grant documents) shall be accelerated in full effective as of the later of (A) the date of Executive’s Separation from Service or (B) the date of the Change in Control (provided that payment or settlement of any deferred bonus, subject such Stock Awards may be delayed as provided in the grant documents to the provisions of extent required by Section 409A of the Code; (iii). Nothing in this Section 3(a)(iv) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid construed to limit any more favorable vesting applicable to Executive’s Stock Awards in the Executive upon Company’s equity plan(s) and/or the first business day following stock award agreements under which the six month anniversary Stock Awards were granted. The foregoing provisions are hereby deemed to be a part of the date of termination of employment each Stock Award and the remainder of which shall be paid to the Executive supersede any less favorable provision in equal installments each month thereafter for six monthsany agreement or plan regarding such Stock Award; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); US-DOCS\75068345.1
(v) subject Notwithstanding any other provision of this Agreement to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Sharescontrary, any Purchased Parent Shares severance benefits payable to Executive under this Agreement shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to reduced by any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld severance benefits payable by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary an affiliate of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits such individual under any other Company policy, plan, policyprogram, agreement or agreementarrangement, including, without limitation, any severance agreement between such individual and any entity.
Appears in 1 contract
Severance. Subject In exchange for Employee’s agreement to be bound by the Executive's continued compliance with his obligations terms of this Release, including, but not limited to, the release of claims in Section 3, Employee shall be entitled to receive the following, which shall be the exclusive severance benefits to which Employee is entitled, unless Employee has materially breached the provisions of this Release, in which case the last sentence of Section 4 shall apply:
(i) A cash payment in the amount of twelve (12) months’ base salary, or $427,310, payable in a lump sum within ten (10) days following the Effective Date;
(ii) For the period beginning on the Separation Date and ending on the date which is twelve (12) full months following the Separation Date (or, if earlier, the date on which the applicable continuation period under this AgreementCOBRA expires), the Company shall have no obligation to the Executive other than: either, at its option, (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; pay directly or (ii) reimburse Employee, for the costs associated with continuation coverage pursuant to COBRA for Employee and his eligible dependents who were covered under the Company’s health plans as of the Separation Date (provided that Employee shall be solely responsible for all matters relating to his continuation of coverage pursuant to COBRA, including, without limitation, his election of such coverage and his timely payment of premiums). If (A) any deferred bonusplan pursuant to which such benefits are provided is not, subject or ceases prior to the provisions expiration of the period of continuation coverage to be, exempt from the application of Code Section 409A of the Code; under Treasury Regulation Section 1.409A-1(a)(5), or (iiiB) the payment Company is otherwise unable to continue to cover Employee under its group health plans under applicable law or the terms of such plans, then, in either case, the Company shall instead pay to Employee an amount equal to the sum of monthly plan premium payment for Employee and his eligible dependents who were covered under the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect Company’s health plans as of the date Separation Date (calculated by reference to Employee’s premiums as of terminationthe Separation Date) as currently taxable compensation in substantially equal monthly installments over the foregoing twelve (12) month period (or the remaining portion thereof), 50% ; plus
(iii) the vesting and/or exercisability of which each of Employee’s outstanding stock options shall be paid automatically accelerated as to the Executive upon number of shares subject to such stock options that would have vested over the first business day twelve (12) month period following the six month anniversary Separation Date had Employee remained continuously employed by the Company during such period. Except as modified above, Employee's stock options shall continue to be governed by the terms and conditions of the date of stock option agreements and the Company’s equity plan pursuant to which such stock options were granted. The foregoing benefits shall be the exclusive benefits to which Employee is entitled in connection with his termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (andemployment, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to unless Employee has materially breached the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closingthis Release, in lieu which case the last sentence of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company Section 4 shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementapply.
Appears in 1 contract
Sources: General Release of Claims (Conatus Pharmaceuticals Inc.)
Severance. Subject If the Company terminates the Executive's employment without "cause" pursuant to Section 4(c) above (other than following a Change of Control, which is subject to Section 5) or the Executive's employment terminates as a result of a Notice of Non-Extension provided to the Executive by the Company pursuant to Section 2 above, then, subject to the Executive's execution of the Release attached hereto as Exhibit A (or in a substantially similar form as the Company deems necessary in order to comply with then applicable law) (the "Release") and the Release becoming effective in accordance with its terms not later than the sixtieth (60th) day following the Executive's termination of employment, the Executive shall be entitled to receive the following severance benefits: (i) as severance payments, the sum of (A) one (1) year of his then Base Salary and (B) the amount equal to the Executive's Target Bonus for the calendar year in which the Executive's termination of employment occurs, payable over a twelve (12) month period in accordance with the Company's payroll schedule in effect from time to time (the "Severance Payments"), and (ii) to the extent he is then a participant in the Company's health insurance plan and eligible for benefits under plan terms, and only if the benefit under this clause (ii) does not cause the Company to fail to satisfy the requirements of, or be in violation of, Section 2716 of the Public Health Service Act or Section 9815 of the Internal Revenue Code of 1986, as amended (the "Code"), to continued compliance health insurance coverage for one (1) year immediately following such termination at then existing employee contribution rates, which the Executive shall pay (such continued coverage to run concurrently with any continued coverage obligation under the federal law known as COBRA or any state equivalent) (the "COBRA Payments"). If the Company terminates the Executive's employment pursuant to Section 4(a) above, then, subject to the Executive's execution of the Release and the Release becoming effective in accordance with its terms not later than the sixtieth (60th) day following the Executive's termination of employment, the Executive shall be entitled to receive the following severance benefits: (i) one (1) year of his obligations then Base Salary, payable over a twelve (12) month period in accordance with the Company's payroll schedule in effect from time to time (the "Disability Severance Payments"), and (ii) the COBRA Payments. Such Severance Payments, Disability Severance Payments, and COBRA Payments shall be the Executive's sole entitlement upon termination of employment pursuant to Sections 4(a) or 4(c) above, as applicable. Notwithstanding the foregoing, if the Company's payments under Section 4(e)(ii) (and under Section 5(ii) below) would violate the nondiscrimination rules applicable to non-grandfathered, insured group plans under the Affordable Care Act (the "ACA"), or result in the imposition of penalties under the ACA and the related regulations and guidance promulgated thereunder, the parties agree to reform Section 4(e)(ii) (and Section 5(ii) below) in a manner as is necessary to comply with the ACA. Subject to the last paragraph of this Section 4(e), the Severance Payments or the Disability Severance Payments, and the COBRA Payments or the Enhanced COBRA Payments (as defined in Section 5 below) will commence on the sixtieth (60th) day following the Executive's termination of employment with the first payment inclusive of any payments that would have been otherwise payable during such initial sixty (60)-day period. Subject only to the Executive's delivery of an executed Release and such Release becoming effective within the provided sixty (60)-day period, the Company's obligation under this Section 4(e) shall be absolute and unconditional, and the Executive shall be entitled to such severance benefits regardless of the amount of compensation and benefits the Executive may earn or be entitled to with respect to any other employment he may obtain during the period for which severance payments are payable. If the Executive's employment with the Company is terminated pursuant to Section 4(b) above, if the Company terminates the Executive's employment with "cause" pursuant to Section 4(c) above, if the Executive terminates his employment pursuant to Section 4(d) above, or if the Executive's employment terminates as a result of a Notice of Non-Extension provided to the Company by the Executive, then the Executive shall not be entitled to any further payments under this Agreement, the Company shall have no obligation to the Executive other than: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonusincluding Base Salary, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount Bonus, Employee Benefits, Severance Payments, Disability Severance Payments, COBRA Payments, Enhanced Severance Payment (as defined in effect as of the date of terminationSection 5 below), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; or Enhanced COBRA Payments (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below defined in Section 4.4(b), (c5 below) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by applicable law, including the terms payment of any amounts owed to the Executive and any obligation that the Company may have to offer the Executive continued benefit plan participation. To the extent that any amount payable under this Agreement constitutes an amount payable under a "nonqualified deferred compensation plan" (as defined in Section 409A of the Company's benefit plans Code (excluding severance planshereinafter, "Code Section 409A"); PROVIDED) that is not exempt from Code Section 409A, and such amount is payable as a result of a "separation from service" (as defined in Code Section 409A), including any amount payable under this Section 4 or Section 5 below, then, notwithstanding any other provision in this Agreement to the contrary, such payment will not be made to the Executive until the day after the date that in the event that such termination is within six (6) months following his separation from service (the Closing, (A) in lieu of the benefit set forth in clause (iii"Specified Employee Payment Date"), but only if, as of his separation from service, he is a "specified employee" under Code Section 409A and any relevant procedures that the Company shall pay may establish. For the Executive a lump sum cash amount equal to avoidance of doubt, on the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent SharesSpecified Employee Payment Date, the Executive will be paid in a single lump sum cash amount within 30 days following all payments that otherwise would have been made to him under this Agreement during the date six (6)-month period but were not made because of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or this paragraph. This paragraph will not be applicable after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementdeath.
Appears in 1 contract
Sources: Employment Agreement (ORBCOMM Inc.)
Severance. Subject In no way limiting the Company’s policy of employment at will:
(a) If Employee’s employment with the Company is terminated by the Company without Cause or by Employee with Good Reason, and provided that all of the following have occurred within 60 days following the termination of Employee’s employment with the Company: (i) Employee first signs and delivers to the Executive's continued compliance with Company a Confidential Severance and Release Agreement in substantially the same form as that attached hereto as Exhibit B (the “Release Agreement”), (ii) any revocation right of the Employee under such Release Agreement shall have expired, and (iii) such Release Agreement shall have become effective, (the date that all of the conditions set forth in (i), (ii) and (iii) above are met to be referred to as the “Release Date”), Employee shall be entitled to receive:
(i) An amount equal to one-half of the sum of his annual Base Salary and Target Bonus in effect for the year in which the Termination Date occurs, subject to required withholding, payable at the end of the first full calendar month following the Release Date; and
(ii) An amount equal to one-twelfth of the sum of his annual Base Salary and Target Bonus in effect for the year in which the Termination Date occurs, subject to required withholding, payable at the end of each of the next thirteen full calendar months following the first full calendar month following the Release Date;
(iii) An amount equal to five-twelfths of the sum of his annual Base Salary and Target Bonus in effect for the year in which the Termination Date occurs, subject to required withholding, payable at the end of the fifteenth full calendar month following the Release Date; and
(iv) Coverage at Company expense under the employee health insurance plan of the Company for period of twenty four (24) months following the Release Date, or, if less, the maximum time period permitted under COBRA.
(b) Notwithstanding anything to the contrary herein contained, Company shall not be required to pay any amounts under this Section 5 or elsewhere in this Agreement if Employee is in breach of any of its obligations under this Agreement or any other Agreement with the Company, including without limitation, any obligation relating to the treatment of Company confidential information and any non-compete obligation.
(c) If Employee’s employment with the Company is terminated for Cause or death or Disability, or Employee resigns without Good Reason, Employee shall be entitled to receive only: (i) Employee’s Base Salary earned and payable through the Termination Date; (ii) any accrued but unused vacation/time off to the extent required under applicable law; (iii) reimbursement for all incurred but unreimbursed expenses to the extent Employee is entitled to be reimbursed; and (iv) any other earned but unpaid compensation, if applicable, as of the Termination Date.
(d) For purposes of this Agreement, the Company following terms shall have no obligation to the Executive other than: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit meanings set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.below:
Appears in 1 contract
Severance. Subject to the Executive's continued compliance with his obligations under this Agreement, the Company shall have no obligation to the Executive other than: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible terminated pursuant to Subsection 3 (d), (e) or (f), and the Executive has executed a Company release substantially in the form of the attached Exhibit A, then the Company shall pay the Executive, as a severance allowance, (A) an amount equal to 12 months of the Executive’s then current Salary plus (B) an amount equal to one-twelfth of the Executive’s then current calculated bonus, determined by taking the maximum amount of bonus in effect for the then current year times the Executive’s individual goal performance score from the previous year, for each month of the current plan year during which the Executive was employed plus an additional 12 months and (C) a continuation of the welfare benefits of health care, life and accidental death and dismemberment, and disability insurance coverage (collectively, “Supplemental Benefits”) for 12 months after the effective date of termination. These benefits shall be provided at the same cost to the Executive (if any), and at the same coverage level, as in effect as of the Executive’s Effective Date of Termination. However, in the event the premium cost and/or level of coverage shall change for all management employees with respect to Supplemental Benefits, the cost and/or coverage level, likewise, shall change for the Executive in a corresponding manner. The amount of the severance allowance provided for in subsections (A) and (B) of this Section 4 shall be paid in equal installments over the severance period. Notwithstanding anything to the contrary contained herein, in the event the Executive elects to receive (pursuant to the severance benefits provided for by this operation of Section 4.4(a)2) 12 months of his/her then current salary following a change in control event and Executive’s voluntary or involuntary termination, the then Executive shall not be eligible entitled to any payment of severance pursuant to this Section 4. In the event a change in control occurs and the Executive is not entitled to 12 months of his/her then current salary pursuant to Section 2, then the Executive shall continue to be entitled to receive severance benefits under any other Company plan, policy, or agreementpayments per this Section 4.
Appears in 1 contract
Severance. During the Term, if within 18 months after a Change in Control, the Executive’s employment is terminated by the Employers without Cause as provided in Section 3(d) or the Executive terminates his employment for Good Reason as provided in Section 3(e), then the Employers shall pay the Executive his Accrued Benefit. The Employers shall also pay the Executive his Pro-Rated Bonus at the same time that the Employers pay cash incentive compensation to executives under Section 2(b). Subject to the Executive's continued compliance with his obligations under this Agreementsatisfaction of the Release Condition, all within 60 days from the Company shall have no obligation to the Executive other than: Date of Termination,
(i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company Employers shall pay the Executive a lump sum in cash in an amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) 2.6 times the sum of (A) the Executive's annual base salary and ’s current Base Salary (or the Executive's target bonus amount (each, as ’s Base Salary in effect as of immediately prior to the Closing)Change in Control, if higher) plus (B) in lieu the Executive’s Incentive Compensation determined on the Date of Termination (or the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned Executive’s Incentive Compensation determined immediately prior to the Company Change in exchange for a refund of the full purchase price within 30 days following such return and Control, if higher); and
(Cii) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, if the Executive will be paid was participating in the Employers’ group medical, vision and dental plan immediately prior to the Date of Termination, then the Employers shall provide the Executive with a lump sum cash amount within 30 days following the date of termination of employment payment equal to any (A) 18 times the amount withheld of monthly employer contribution that the Employers made to an insurer (or as otherwise determined on an actuarial basis based upon the applicable monthly premium for continuation coverage under COBRA) to provide medical, vision and dental insurance to the Executive and his dependents in the month immediately preceding the Date of Termination, plus (B) the amount the Employers would have contributed to their health reimbursement arrangement on the Executive’s behalf for 18 months from the Date of Termination if the Executive had remained employed by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted SharesEmployers; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause and
(iii) the amounts payable under Subsections (i) and (ii) shall be paid in a lump sum within 60 days after the benefits set forth Date of Termination; provided, however, that if the 60-day period begins in clause (A) one calendar year and ends in a second calendar year, such amounts shall be paid in the immediately preceding proviso, second calendar year by the Company shall pay the Executive over a 24last day of such 60-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementday period.
Appears in 1 contract
Sources: Employment Agreement (Behringer Harvard Reit I Inc)
Severance. Subject If Executive’s employment is terminated by the Company pursuant to Section 4(a)(i) above or by Executive pursuant to Section 4(c) above, then the Company shall pay Executive the Accrued Amounts pursuant to Section 5(a) and, subject to her execution of a general release of claims in favor of the Company and its affiliates substantially in the form attached as Exhibit E, the Company shall pay Executive (subject to adjustment pursuant to Section 18 hereof, as applicable):
(i) an amount equal to twelve (12) months of her Base Salary as in effect as of the Termination Date. Such amount shall be paid in accordance with the normal payroll cycle over the twelve (12) month period following the Termination Date, in accordance with the Company’s customary payroll practices;
(ii) an Annual Bonus for the year of termination at 100% of the Annual Bonus Target, payable in in cash. Such amount shall be paid in accordance with the normal payroll cycle over the twelve (12) month period following the Termination Date, in accordance with the Company’s customary payroll practices;
(iii) reimbursement from the Company for any COBRA premiums paid by Executive for the continuation of Executive's continued compliance with his obligations under ’s health insurance as currently enrolled on the Termination Date, for the same twelve (12) month period after the Termination Date; and
(iv) if termination occurs after January 1, 2022, acceleration of vesting of the Option and Time-Vested Restricted Stock Award as follows: (A) if the Option is not then fully vested, 250,000 shares of the Option shall automatically vest on the Termination Date; and (B) if the Time-Vested Restricted Stock is not then fully vested, 50,000 of such Time-Vested Restricted Stock shall automatically vest on the Termination Date (the foregoing (i)-(iv), collectively, “Severance”). Other than as set forth in this AgreementSection 5(b), the Company shall have no obligation further obligations to the Executive other than: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day under this Agreement following the six month anniversary of the date of termination of Executive’s employment and the remainder of which shall be paid pursuant to the Executive in equal installments each month thereafter for six months; (ivSections 4(a)(i) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Sharesor 4(c) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementabove.
Appears in 1 contract
Severance. (a) Subject to Section 11 and to Executive’s execution, delivery and non-revocation of a general release substantially in the form attached hereto as Exhibit “A” (the “Release”), if a Termination of Executive's continued compliance with his obligations under this Agreement’s employment occurs at any time during the Term, the Company shall have no obligation to the Executive other than: (i) the payment Company shall continue to pay Executive compensation for the next twelve months on regular payroll dates at twice the rate of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination)Termination, 50% of which shall be paid to such compensation totaling over the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-twelve month period in equal monthly installments the product of two (x2) two and (y) the sum of the times Executive's annual ’s Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination)Termination, (ii) following the first anniversary of the date of Termination the Company shall pay Executive an amount equal to 200% of the Base Salary in effect as of the date of Termination, such amount to be paid in equal payments on regular payroll dates over the next twelve months and (iii) beginning on the date of Termination the Company shall pay Executive an amount equal to the Executive’s Base Salary in effect as of the date of Termination, multiplied by the percentage of the calendar year of the termination that has lapsed through the date of Termination, such amount to be paid in equal payments on regular payroll dates over the next twenty-four months. The compensation payable under this subsection (a) shall be subject to any required tax withholding and shall not begin until the eighth day after Executive’s delivery of the executed Release to the Company provided that Executive shall have not previously revoked the Release. One half of each payment shall constitute “Severance Pay” and one half shall constitute “Covenant Pay”. Notwithstanding any other provision of this Agreement, in no event shall the payments provided for in this Section 10(a) exceed an amount equal to 250% of the sum of the Executive’s Base Salary and Target Bonus in effect as of the date of Termination.
(b) Subject to Executive’s execution, delivery and non-revocation of the Release, Executive shall also be entitled for 24 months following the date of Termination to continue to participate at the same level of coverage and Executive contribution in any health, dental, disability and life insurance plans, as may be amended from time to time, in which Executive was participating immediately prior to the date of Termination. Such participation will terminate 30 days after Executive has obtained other employment under which Executive is covered by equal benefits. Executive agrees to notify the Company promptly upon obtaining such other employment. At the option of Executive, COBRA coverage will be available, as provided by law and/or Company policy, at the termination of extended benefits as provided above.
(c) If Executive shall die following his Termination, the payments and benefits provided under this Section 10 shall continue to be paid and/or provided to his estate.
(d) In the event of Executive’s Termination, all stock options granted to Executive under the 2002 Equity Plan on or before the Effective Date that are outstanding on the date of Termination shall automatically become vested and exercisable and shall remain exercisable for two years following the date of Termination or until their expiration pursuant to the terms of the applicable stock option award agreement, whichever is earlier. Upon Executive’s Termination, all Performance Awards granted to Executive under the 2002 Equity Plan on or before the Effective Date shall be treated as provided in the Performance Share Unit Award Agreement as if Executive’s employment is Terminated by the Company involuntarily (other than for cause) immediately following a Change in Control, except that if Executive’s Termination occurs after the Committee determines that the Performance Goals have been attained but before the Payment Date (determined as though there is no Change in Control) the Performance Awards shall be treated and paid as if Executive continued to be employed by the Company through the Payment Date (determined as though there is eligible no Change in Control). All shares of Restricted Stock granted to receive Executive on or before the severance benefits provided for by this Section 4.4(a), the Effective Date and any deferred compensation granted to Executive shall not automatically be eligible to receive severance benefits under any other Company planvested. The provisions of this paragraph shall be deemed incorporated by reference into Executive’s stock option award, policyPerformance Award, or agreementRestricted Stock award and deferred compensation agreements accordingly.
Appears in 1 contract
Severance. Subject Should your employment be involuntarily terminated by the Company other than for "Cause" (as defined below), you will be eligible to receive the following severance benefits: • Lump sum cash payment equal to your annual base salary in effect on the date of termination; • Lump sum cash payment equal to a portion of your target bonus, prorated based on the date of termination, multiplied by the “Company Performance Factor” (or equivalent ratio in any successor incentive plan) and payable at the same time as the annual incentive bonus is paid to then-current executive officers; and • COBRA subsidy for the first twelve (12) months following the month of termination; provided that such benefits shall be taxable to you to the Executive's continued compliance with his obligations extent advisable under Section 105(h) of the Internal Revenue Code of 1986, as amended (the "Code"). • Lump sum cash payment equal to your annual base salary in effect on the date of termination; • Lump sum cash payment equal to your annual target bonus in effect on the date of termination; • In the year of termination, lump sum cash payment equal to your annual target bonus in effect on the date of termination, prorated based on the date of termination; • Full acceleration for RSUs, options, and PSUs (PSUs paid at target); and • COBRA subsidy for the first twelve (12) months following the month of your termination; provided that such benefits shall be taxable to you to the extent advisable under Section 105(h) of the Code. Notwithstanding any other provision under this Agreementagreement, in the event that the amount of payments or other benefits payable to you under this agreement, together with any payments or benefits payable under any other plan, program, arrangement or agreement maintained by the Company or one of its affiliates, would constitute an “excess parachute payment” (within the meaning of Section 280G of the Code), the Company payments under this agreement shall have no obligation be either (a) provided in full pursuant to the Executive terms of this agreement or any other than: applicable agreement, or (b) reduced in a manner determined by the Company (by the minimum possible amounts) until no amount payable to you under this agreement constitutes an “excess parachute payment” (within the meaning of Section 280G of the Code), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes including any excise tax imposed by Section 4999 of the Code (including without limitation, any interest or penalties on such taxes), results in your receipt, on an after-tax basis, of the greatest amount or payments and benefits provided for hereunder or otherwise. To be entitled to the benefits under this agreement, you must agree to be bound by the terms and conditions outlined herein, including all restrictions applicable to you which includes the execution of a general release waiving all claims against the Company, which release will be provided to you in sufficient time to allow you to review and execute the release, and for any revocation period to expire, so that such benefits (other than the COBRA subsidy) can be paid to you by the short-term deferral deadline referred to in the following paragraph. Notwithstanding anything to the contrary set forth herein, all payments and benefits described in this agreement that are not otherwise exempt from Section 409A of the Code (“Section 409A”) shall be fully paid no later than the short-term deferral deadline set forth in Treasury Regulation Section 1.409A-1(b)(4). Notwithstanding anything to the contrary set forth herein, in the event that any change to this agreement or any additional terms are required to comply with Section 409A (or an exemption therefrom), you hereby agree that the Company may make such change or incorporate such terms (by reference or otherwise) without your consent. To the extent (i) any payments to which you become entitled under this agreement, or any agreement or plan referenced herein, in connection with your termination of employment with the Company constitute deferred compensation subject to Section 409A and (ii) you are deemed at the time of such termination of employment to be a “specified” employee under Section 409A, then such payment or payments shall not be made or commence until the earlier of (i) the payment expiration of the Executive's earned and unpaid compensation through six (6)-month period measured from the effective date of your “separation from service” (as such terminationterm is at the time defined in Treasury Regulations under Section 409A with the Company; or (ii) the payment date of any deferred bonusyour death following such separation from service; provided, subject however, that such deferral shall only be effected to the provisions of extent required to avoid adverse tax treatment to you, including (without limitation) the additional twenty percent (20%) tax for which you would otherwise be liable under Section 409A 409A(a)(1)(B) of the Code; (iii) Code in the payment absence of an amount equal to such deferral. Upon the sum expiration of the Executive's annual Base Salary plus applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the Executive's Maximum Bonus Amount (as in effect as absence of the date of termination), 50% of which this paragraph shall be paid to you or your beneficiary, as applicable, in one lump sum. For purposes of this agreement, no payment that is subject to (and not exempt from Section 409A) will be made to you upon termination of your employment unless such termination constitutes a “separation from service” within the Executive upon the first business day following the six month anniversary meaning of Section 409A, and Section 1.409A-1(h) of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementTreasury Regulations thereunder.
Appears in 1 contract
Severance. Subject In the event that Employee is subject to a Change in Control Involuntary Termination, Employee shall be entitled to receive severance benefits as follows: (A) a lump sum cash severance payment equal to [one and a half (1.5) times (if Employee is not the CEO)] [three (3) times (if Employee is the CEO)] the higher of (1) the base salary which Employee was receiving immediately prior to the Executive's continued compliance with his obligations under this Agreement, Change in Control or (2) the Company shall have no obligation base salary which Employee was receiving immediately prior to the Executive other than: (i) the Change in Control Involuntary Termination, which payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to on the Executive upon the first business sixtieth (60th) day following the six month anniversary Change in Control Involuntary Termination; (B) a lump sum cash payment equal to [one and a half (1.5) times (if Employee is not the CEO)] [three (3) times (if Employee is the CEO)] Employee’s Target Annual Bonus; and (C) payment by the Company of the date full cost of termination of employment the health insurance benefits provided to Employee and the remainder of which shall be paid Employee’s spouse and dependents, as applicable, immediately prior to the Executive Change in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject Control pursuant to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (excluding severance plans“COBRA”) or other applicable law through the earlier of the end of the [eighteen (18) month (if Employee is not the CEO)] [thirty-six (36) month (if Employee is the CEO)] period following the Change in Control Involuntary Termination date or the date upon which Employee is no longer eligible for such COBRA or other benefits under applicable law. The benefits to be provided under clauses (a)(i) and (a)(ii) shall be paid on the sixtieth (60th) day following Employee’s termination of employment ; PROVIDEDexcept that any payments under clause (a)(ii)(C) shall be paid on a monthly basis commencing on the sixtieth (60th) day following Employee’s termination of employment (subject in all cases to Employee’s release of claims against the Company as set forth in Section 1(a)). Notwithstanding the foregoing, that in the event the Board of Directors concludes in its reasonable judgment that such termination the provision of subsidized COBRA benefits to Employee is within six months following likely to cause the Closing, (A) in lieu Company to become subject to excise tax as a result of the benefit set forth in clause Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (iiithe “Healthcare Reform Act”), the Company shall pay the Executive Employee a lump sum monthly amount in cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum amount of the Executive's annual base salary and COBRA subsidy during the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to period the Company in exchange is obligated to provide subsidized COBRA benefits to Employee. In addition, Employee shall receive payment(s) for a refund of the full purchase price within 30 days following such return all salary, bonuses and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect unpaid vacation accrued as of the date of terminationEmployee’s termination of employment and up to three (3) months of outplacement services not to exceed $5,000 per month (with a provider and in a program selected by the Employee. provided Employee commences such services within ninety (90) days of Employee’s Change in Control Involuntary Termination date). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.
Appears in 1 contract
Sources: Management Continuity Agreement (Assertio Holdings, Inc.)
Severance. Subject to Provided the Executive's continued compliance with his obligations under this AgreementTermination Date occurs, the Company shall have no obligation and Executive agree that the Executive’s separation from employment with the Company will be treated as a “Qualifying Termination” (as defined in the Employment Agreement), provided that the Executive’s employment is not terminated due to a termination for “Cause” (as defined in the Employment Agreement) prior to the Executive other than: Termination Date. Accordingly,
(ia) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the The Company shall pay the Executive an aggregate cash severance amount equal to One Million Four Hundred Eighty-Seven Thousand Five Hundred Dollars ($1,487,500.00) payable in a lump sum, less all applicable taxes, withholdings and deductions, in the first payroll period following the date on which the Agreement becomes effective and non-revocable, and as provided for in the Employment Agreement, subject to Sections 2.3, 2.4 and 4.6 below.
(b) Effective as of the Termination Date, and subject to Sections 2.3, 2.4 and 4.6 below, the Executive’s outstanding incentive equity awards shall be treated as set forth below:
(i) All of Executive’s outstanding time-based restricted stock units (“RSUs”) which would have otherwise vested within one year following the Termination Date (totaling 10,141 RSUs) will become vested as of the Termination Date and settled in shares of Company common stock, to be provided to the Executive within 60 days after the Termination Date, pursuant to the terms and conditions of the Wyndham Hotels & Resorts, Inc. Equity and Incentive Plan Award Agreement - Restricted Stock Units, dated June 1, 2018, between the Company and Executive.
(ii) All of Executive’s stock options which would have otherwise vested within one (1) year following the Termination Date (totaling 18,583 options) will become vested as of the Termination Date and shall remain outstanding and exercisable for a period of two (2) years immediately following the Termination Date, pursuant to the terms and conditions of the Wyndham Hotels & Resorts, Inc. Equity and Incentive Plan Award Agreement - Non-Qualified Stock Options, dated June 1, 2018, between the Company and Executive.
(iii) All of Executive’s performance-based long-term incentive awards (“PVRSUs”) held as of the Termination Date (totaling 4738 shares), shall vest and be paid pro-rata based upon the portion of the full performance period during which Executive was employed by the Company plus twelve (12) months, provided only that the performance goals applicable to the PVRSUs are achieved. Payment of any such PVRSUs will occur at the same time that such PVRSUs are paid to actively-employed employees generally, as set forth in your Employment Agreement. The Executive has no other outstanding Company or Released Party (“Released Party” defined throughout the Agreement herein as defined in the Release identified in 2.4 and attached hereto as Exhibit A) incentive awards, equity awards or equity rights, except as set forth in subsection (b) herein. For the avoidance of doubt, Executive is not entitled to any future Company incentive awards or equity rights that may otherwise be provided to officers or employees of the Company after the date of this Agreement (March 31, 2020). Furthermore, for the avoidance of doubt, except as provided for in subsection (b) herein, nothing contained herein shall affect the terms of restricted stock shares or other equity compensation previously awarded to Executive, under the Wyndham Hotels & Resorts, Inc. 2018 Equity and Incentive Plan, as amended from time to time (“WHR Plan”) which shall continue to be governed under the terms and conditions of the WHR Plan.
(c) The Executive shall continue to be eligible to participate in the Company’s Officer Deferred Compensation Plan and 401(k) Plan up to and including the Termination Date, in accordance with the terms thereof.
(d) The Executive shall continue to participate in the medical, dental and vision plan coverage (collectively, “Health Plan”) in which he currently participates through the end of the month in which the Termination Date occurs. Following the Termination Date, the Executive may elect to continue coverage under the Health Plan in accordance with the provisions of the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), at his own expense; provided that the Company shall provide the Executive with a cash payment of Thirteen Thousand Five-Hundred and Fifty-Six Dollars ($13,556.00) less applicable taxes, withholdings and deductions (the “Health Reimbursement Payment”), which is meant to represent 18 months of the Executive’s estimated COBRA premiums for such coverage, in the first payroll period following the date on which the Agreement becomes effective and non-revocable. The Health Reimbursement Payment shall be paid in a lump sum cash amount equal on or before the 60th day following the Termination Date, subject to Sections 2.3, 2.4 and 4.6 below.
(e) To the extent the Executive would otherwise be entitled as an executive of the Company to participate in the Company’s executive health physical program, such entitlement will be provided to the product of Executive through December 31, 2020.
(xf) The Executive shall be eligible to continue to use the multiple set forth on ATTACHMENT 1 and (y) vehicle provided to him through the sum of Company’s executive car lease program in which he currently participates, upon the Executive's annual base salary and the Executive's target bonus amount (each, same terms as currently are in effect as of immediately prior to for him, through and until the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent SharesTermination Date. At that time, the Executive will shall have the option to purchase the vehicle in accordance with the terms of such program for use, at his own expense. If the Executive chooses not to purchase the vehicle, the Executive shall relinquish the vehicle to the Company’s Human Resources Department on or before the Termination Date.
(g) The Executive shall be paid entitled to outplacement services rendered by a lump sum cash amount within 30 days company selected by the Company, provided the services are utilized no later than 12 months following the date of termination of employment equal Termination Date.
(h) The Executive may continue to any amount withheld by use the financial services provided through the AYCO Company through the 2020 tax season ending on April 15, 2021.
(i) Executive shall be entitled to keep his Company-issued cell phone (“Cell Phone”) and laptop computer (“Laptop”). Executive will provide the Company’s Information Security and Information Technology Departments with the Cell Phone and Laptop, and the Company in connection shall be permitted to image and erase all information from the Cell Phone and Laptop, and then return the Cell Phone and Laptop to Executive for his personal use. Executive shall assume all financial responsibility associated with the Cell Phone and Laptop as of the Termination Date.
(j) Notwithstanding any Section 83(b) election made by other provision of this Agreement or the Employment Agreement, all payments to, vesting, benefits, and other rights of the Executive with respect under this Section 2.1 shall be subject to the New Parent Restricted Shares; PROVIDEDSections 2.3, FURTHER2.4 and 4.6 of this Agreement. In addition, that and without limitation of its rights at law or in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding provisoequity, the Company shall pay reserves the right to suspend payments to, vesting, benefits and other rights of the Executive over if the Company has a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event belief that the Executive is eligible to receive in breach of Section 3 of this Agreement, or otherwise is in breach of any representation, affirmation or acknowledgement by Executive under this Agreement or the severance benefits Release as defined in Section 2.4 herein and attached hereto as Exhibit A.
(k) Except as provided for by in this Section 4.4(a)2.1, the Executive shall acknowledges and agrees that he is not be eligible entitled to receive any severance benefits under any other Company severance plan, policyarrangement, agreement or program of the Company or its affiliates, or agreementany of the Released Parties or any Released Party.
Appears in 1 contract
Sources: Separation and Release Agreement (Wyndham Hotels & Resorts, Inc.)
Severance. (a) If Executive has a Separation from Service as a result of Executive’s discharge by the Company without Cause or by reason of Executive’s resignation for Good Reason, in either case within sixty (60) days prior to a Change in Control or within eighteen (18) months following a Change in Control, Executive shall be entitled to receive, in lieu of any severance benefits to which Executive may otherwise be entitled under any severance plan or program of the Company, the benefits provided below, which, with respect to clause (ii), will be payable in a lump sum on the day that is sixty (60) days following the date of Executive’s Separation from Service: US-DOCS\105966961.2
(i) The Company shall pay to Executive his or her fully earned but unpaid base salary, when due, through the date of Executive’s Separation from Service at the rate then in effect, reimbursement of business expenses incurred prior to the date of Executive’s Separation from Service and properly submitted in accordance with Company policy, plus all other benefits, if any, under any Company group retirement plan, nonqualified deferred compensation plan, equity award plan or agreement (other than any such plan or agreement pertaining to Stock Awards whose treatment is prescribed by Section 3(a)(iv) below), health benefits plan or other Company group benefit plan to which Executive may be entitled pursuant to the terms of such plans or agreements at the time of Executive’s Separation from Service (the “Accrued Obligations”);
(ii) Subject to the Section 3(c) and Executive's ’s continued compliance with his obligations Section 4, Executive shall be entitled to receive severance pay in an amount equal to one hundred percent (100%) multiplied by the sum of (x) Executive’s annual base salary as in effect immediately prior to the date of Executive’s Separation from Service, plus (y) Executive’s target annual bonus for the calendar year in which Executive’s Separation from Service occurs;
(iii) Subject to Section 3(c) and Executive’s continued compliance with Section 4, for the period beginning on the date of Executive’s Separation from Service and ending on the date which is twelve (12) full months following the date of Executive’s Separation from Service (or, if earlier, the date on which the applicable continuation period under this Agreementthe Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) expires) (the “COBRA Coverage Period”), the Company shall have no obligation continue to provide Executive and his or her eligible dependents who were covered under the Company’s health insurance plans as of the date of Executive’s Separation from Service with health (including medical and dental) insurance benefits substantially similar to those provided to Executive and his or her dependents immediately prior to the Executive other than: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; Separation from Service. If any of the Company’s health benefits are self-funded as of the date of Executive’s Separation from Service, or if the Company cannot provide the foregoing benefits in a manner that is exempt from or otherwise compliant with applicable law or the provision of such benefits may result in the Company incurring penalties under applicable law (iiincluding, without limitation, Section 409A of the Code and Section 2716 of the Public Health Service Act), instead of providing continued health insurance benefits as set forth above, the Company shall instead pay to Executive an amount equal to the monthly premium payment for Executive and his or her eligible dependents who were covered under the Company’s health plans as of the date of Executive’s Separation from Service (calculated by reference to the premium as of the date of Separation from Service) as currently taxable compensation in substantially equal monthly installments over the COBRA Coverage Period (or the remaining portion thereof);
(iv) Subject to Section 3(c) and Executive’s continued compliance with Section 4, the vesting and/or exercisability of each of Executive’s outstanding Stock Awards (other than Performance Awards, which will vest as to the “target” number of shares subject to such performance Awards, except to the extent alternative acceleration is specifically provided for pursuant to the grant documents) shall be accelerated in full effective as of the later of (A) the date of Executive’s Separation from Service or (B) the date of the Change in Control (provided that payment or settlement of any deferred bonus, subject such Stock Awards may be delayed as provided in the grant documents to the provisions of extent required by Section 409A of the Code; (iii). Nothing in this Section 3(a)(iv) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid construed to limit any more favorable vesting applicable to Executive’s Stock Awards in the Executive upon Company’s equity plan(s) and/or the first business day following stock award agreements under which the six month anniversary Stock Awards were granted. The foregoing provisions are hereby deemed to be a part of the date of termination of employment each Stock Award and the remainder of which shall be paid to the Executive supersede any less favorable provision in equal installments each month thereafter for six monthsany agreement or plan regarding such Stock Award; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d);
(v) subject Notwithstanding any other provision of this Agreement to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Sharescontrary, any Purchased Parent Shares severance benefits payable to Executive under this Agreement shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to reduced by any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld severance benefits payable by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary an affiliate of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits such individual under any other Company policy, US-DOCS\105966961.2 plan, policyprogram, agreement or agreementarrangement, including, without limitation, any severance agreement between such individual and any entity.
Appears in 1 contract
Severance. Subject (a) If the Company terminates Executive’s employment with the Company without Cause prior to twelve (12) months from the date of this Agreement, then the Company will pay Executive any accrued compensation and any other severance to be mutually agreed upon by the Parties within three (3) months of the date of this Agreement. If the Company terminates Executive’s employment with the Company without Cause following twelve (12) months of employment, then in accordance with Section 6(c) prior to the Executive's continued compliance with his obligations under this Agreementexpiration of the Initial Term, the Company shall have no obligation pay Executive a severance payment an amount equal to twelve months of Executive’s Base Salary as in effect on the date of termination, subject to subsections (c), (d), and (e).
(b) If during the Term of this Agreement there is a CC Termination upon a Change in Control or within one year thereafter, then the Executive will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Executive other than: (iunder Company plans in which Executive is a participant, but without duplication for any amounts due to Executive pursuant to Section 7(a)) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of payable in a lump sum in cash in an amount equal to the sum of of: (i) the Executive's annual ’s Base Salary plus the Executive's Maximum Bonus Amount (as in effect as on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of terminationsuch CC Termination), 50% of which shall be paid and (ii) the Executive’s Average Annual Bonus, subject to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; subsections (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(bc), (cd) and (de).
(c) Subject to Section 7(c), any severance payment payable to Executive pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Executive’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Executive executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (v60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Executive is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Severance Payment will be made on the Company's Supplemental ’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Executive Retirement Plan acknowledges and (vi) executive outplacement benefits, except agrees the Severance Payment to which the Executive is entitled under this Section 7 is conditioned upon and subject to the Executive’s executing and delivering the general release of claims in the form attached hereto as otherwise required by law or Exhibit B by the terms of 45th day following the Company's benefit plans Executive’s separation from service and not revoking the release within the seven (excluding severance plans); PROVIDED7) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, that the Severance Payment will be paid in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal second calendar year. Executive’s right to the product Severance Payment is further conditioned upon Executive’s continued compliance with Sections 8-11 of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum this Agreement. If Executive breaches any of the Executive's annual base salary and the Executive's target bonus amount (eachhis obligations in Sections 8-11 of this Agreement, as in effect as of he will immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned return to the Company in exchange for a refund any portion of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect Severance Payment that has been paid to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal him pursuant to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement7.
Appears in 1 contract
Severance. Subject (a) If the Company terminates Employee’s employment with the Company without Cause in accordance with Section 5(c) prior to the Executive's continued compliance with his obligations under this Agreementexpiration of the Initial Term, the Company shall have no obligation pay Employee a severance payment an amount equal to three (3) months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c), (d), and (e).
(b) If during the Term of this Agreement there is a CC Termination upon a Change in Control or within one year thereafter, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Executive other than: (iEmployee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal the payment of the Executive's earned and unpaid compensation through the effective Employee’s Base Salary in effect on date of such termination; CC Termination (ii) or, if greater, the payment highest Base Salary in effect during the three year period ending on the date of any deferred bonussuch CC Termination), subject to subsections (c), (d) and (e).
(c) Any severance payment payable to Employee pursuant to this Section 6 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the provisions of date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b), provided that Employee executes and delivers the release contemplated by Section 6(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment Code and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) Severance Payment constitutes “nonqualified deferred compensation” that is subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Severance Payment will be made on the Company's Supplemental Executive Retirement Plan ’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and (vi) executive outplacement benefits, except agrees the Severance Payment to which the Employee is entitled under this Section 6 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as otherwise required by law or Exhibit B by the terms of 45th day following the Company's benefit plans Employee’s separation from service and not revoking the release within the seven (excluding severance plans); PROVIDED7) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, that the Severance Payment will be paid in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal second calendar year. Employee’s right to the product Severance Payment is further conditioned upon Employee’s continued compliance with Sections 7-11 of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum this Agreement. If Employee breaches any of the Executive's annual base salary and the Executive's target bonus amount (eachhis obligations in Sections 7-11 of this Agreement, as in effect as of he will immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned return to the Company in exchange for a refund any portion of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect Severance Payment that has been paid to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal him pursuant to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement6.
Appears in 1 contract
Severance. Subject If the Company terminates the Executive’s employment at any time without Cause, or the Executive terminates employment with the Company for Good Reason, the Executive shall receive (i) an amount equal to the Executive's continued compliance ’s then current Base Salary for twelve (12) months (the “Severance Period”), less all applicable withholdings and deductions, paid in accordance with his obligations under this Agreement, the Company shall have no obligation to the Executive other than: Company’s standard payroll practices (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of this Section 409A 4(k)), (ii) if elected by the Executive in accordance with the election procedures in place at the time of termination, the Code; Company shall, during the Severance Period, reimburse the Executive for continuation premiums under COBRA (or similar applicable law) for the Executive and the Executive’s covered qualified dependents, and (iii) if the effective date for such termination of employment is on or after July 1st during any calendar year, a cash payment of an amount equal to (A) the sum of cash bonus paid to Executive pursuant to Section 3(b) for the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of calendar year prior to the date of termination), 50% multiplied by (B) a fraction, the numerator of which shall be paid to is the number of days during such calendar year that the Executive upon was employed by the first business day following the six month anniversary of the date of termination of employment Company, and the remainder denominator of which shall be paid to the Executive in equal installments each month thereafter for six months; is three hundred and sixty-five (iv365) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b(i), (cii) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), collectively, the “Severance Benefits”). No payments of Severance Benefits will be made prior to the sixtieth (60th) day following the Executive’s Separation from Service (as defined in Section 7(a)). On the 60th day following the Executive’s Separation from Service, the Company shall will pay the Executive in a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event payments that the Executive is eligible would have received on or prior to receive such date under the severance benefits provided original schedule but for by this the delay while waiting for the sixtieth (60th) day in compliance with Section 4.4(a)409A and the effectiveness of the Release, with the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementbalance of the payments being paid as originally scheduled.
Appears in 1 contract
Sources: Employment Agreement (Wayside Technology Group, Inc.)
Severance. Subject Upon termination of the Employment Period pursuant to Sections 4(b) or 4(d) (but in any event not upon termination of the Employment Period pursuant to Sections 4(a), 4(c), 4(e), 6 or upon expiration of the Employment Period on the third anniversary of the Effective Date) and, subject to Section 7, so long as the Executive executes a mutual general release with the Company in the form attached hereto as Exhibit B (with such changes therein as independent outside counsel selected by the Company and approved by the Executive's continued compliance , which approval shall not be unreasonably withheld, reasonably determines at the time of termination are required to comply with applicable law, a “Release”) in accordance with Section 7 and has not breached any of his obligations under this Agreementrepresentations set forth in Section 9, the Company shall have no obligation pay or provide to the Executive other than: Executive:
(ia) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum greater of (i) the amount of Base Salary that would have otherwise been due to Executive through the expiration of the Executive's annual Employment Period (such amount to be calculated based upon his then current Base Salary), and (ii) two (2) times his then applicable Base Salary plus (or in the event a reduction in Base Salary is the basis for the Executive's Maximum Bonus Amount (as ’s resignation, then the Base Salary in effect immediately prior to such reduction) (the “Severance Payment”);
(b) any Special Bonus payable as set forth in Sections 2(b)(ii)(A) or (B), as applicable;
(c) reimbursable expenses pursuant to Section 2(b)(vi), and
(d) subject to the Executive’s and/or his covered dependents’, as applicable, timely election of continuation coverage under COBRA, and the Executive’s or his covered dependent’s, as applicable, continued copayment of premiums at the same level and cost as if the Executive were an employee of the date Company (excluding, for purposes of terminationcalculating cost, an employee’s ability to pay premiums with pre-tax dollars), 50% of which shall be paid to continued participation in the Company’s (or its successors) health and medical insurance plans for the Executive upon the first business day following the six month anniversary and his covered dependents, in a manner intended to avoid any excise tax under Section 4980D of the date Code, for a period though the earlier of termination (x) the end of employment the applicable period that the Executive and/or his covered dependents, as applicable, are eligible for continuation coverage under COBRA and (y) the remainder Executive becoming eligible for coverage under the health and medical insurance plans of which a subsequent employer (the “COBRA Coverage”). Subject to Section 12(b), all amounts payable pursuant to Section 5(a) shall be paid to the Executive in equal installments each month thereafter for six months; a single lump sum in cash on the sixtieth (iv60th) treatment day after the date of termination and the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) Special Bonus shall be paid to the Executive as described below provided in Section 4.4(b2(b)(ii)(A) or (B), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Sharesapplicable. In addition, the Executive will be paid also receive any Base Salary, reimbursable expenses and benefits earned for actual services rendered prior to such date payable to the Executive in a single lump sum in cash amount within 30 not later than five (5) days following after the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that or as otherwise provided in the event that such termination is on applicable plan or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementprogram.
Appears in 1 contract
Severance. Subject (a) Provided the Executive does not resign prior to the Executive's continued compliance with his obligations Termination Date and does not engage in any act constituting Cause under this Agreementthe Plan, the Executive shall receive the payments and benefits set forth herein. For avoidance of doubt, the Company shall have no obligation may not terminate the Executive’s employment prior to the Termination Date unless the Executive engages in any act constituting “Cause” under the Plan or in the event of the Executive’s death or disability; provided that the payments and benefits set forth herein shall be provided in the event that the Executive’s employment terminates due to death or disability. Notwithstanding anything contained in the Plan to the contrary, no act by the Executive shall constitute Cause unless the Executive is provided written notice detailing the basis for Cause and an opportunity of no less than thirty (30) days to cure the matter to the reasonable satisfaction of the Board, if the Board determines reasonably and in good faith that such matter is curable. No matter shall be considered “Cause” unless the Company notifies the Executive that such matter may constitute “Cause” within thirty (30) days after the Board first has actual knowledge of such matter.
(b) The Executive shall receive a lump sum severance payment in the gross amount equal to one and one-half (1.5) times the sum of (x) $1,250,000 plus (y) the average of the three short-term incentive bonuses for the three (3) completed fiscal years of the Company ending prior to the Termination Date (currently anticipated to be the 2023, 2024 and 2025 calendar years). Such sum shall be paid out, less applicable tax withholdings, as soon as practicable following the Termination Date, but, except as provided in Section XII.D, in no event more than thirty (30) days after the Termination Date. This payment is in addition to any amounts payable under Paragraphs I(d) and (e) hereof.
(c) The Executive shall also receive a Supplemental Health & Life Payment of $70,000 (the “Supplemental Payment”), less applicable tax withholdings, which may, among other thanthings, be used to pay for COBRA and life insurance coverage after the Termination Date. The Supplemental Payment shall be paid at the same time as the lump sum severance payment above. The Executive shall also be paid any accrued: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; wages, (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; reimbursed expenses and (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount unused paid time off (as in effect “PTO”) as of the date of termination), 50% of which Termination Date. The Executive shall not accrue any PTO after the Termination Date. Such amounts shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and required under Company policy or applicable law.
(d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the The Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary ’s attorneys’ fees incurred in connection with this Agreement and the Executive's target bonus amount matters described herein, up to a maximum of $30,000. An invoice for such fees (each, as in effect as without description of immediately prior to the Closing), (Bservices) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned presented to the Company in exchange for a refund of the full purchase price within 30 days following such return and thirty (C30) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of this Agreement and shall be paid within ten (10) days following presentation.
(e) The foregoing are the sole severance payments and termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to will receive under the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementPlan.
Appears in 1 contract
Sources: Transition and Advisory Agreement (Corebridge Financial, Inc.)
Severance. Subject In exchange for the general release of all claims pursuant to Section 4 and the Release (as defined below), the provisions of Section 3 hereof, and the other promises, covenants and agreements by Executive set forth herein, subject to Executive’s execution and delivery of the Release as provided in Section 4 below (a) during the 24 month period commencing on the Termination Date (the “Severance Period”), Employer shall pay Executive severance at a rate equal to $280,000 per annum (subject to mandatory withholdings for taxes) (“Base Severance”), payable in equal installments on the Company’s regular salary payment dates (provided that the Board of Directors of the Company, in its discretion, shall have the option to accelerate the date on which any payment of any Base Severance payable to Executive would otherwise be paid at any time, provided further than any such acceleration shall not be deemed to have shortened the Severance Period), (b) on or about the date of the Closing (as defined in the Repurchase Agreement), Employer shall pay to Executive in cash a special bonus in the amount of $111,200 (subject to mandatory withholdings for taxes), and (c) during the Severance Period, Executive shall continue to participate in Employer’s group health, dental and vision benefit plan(s) (excluding, for the avoidance of doubt, any bonus and incentive compensation plans), on substantially the same terms and conditions as apply from time to time to Employer’s then employed senior executives (except that Employer shall pay the portion of the insurance premiums for such benefits normally paid by Executive) (clauses (a) through (c), collectively, the “Severance Payments and Benefits”). Following the Severance Period, as permitted by the continuation coverage provisions of Section 4980B of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), Executive shall be offered the opportunity to elect continuation coverage under Employer’s group medical, dental and vision benefit plan(s) (“COBRA coverage”). Employer shall provide Executive with the appropriate COBRA coverage notice and election form for this purpose. If Executive elects COBRA coverage, Executive shall pay 100% of Executive’s (and his dependents’) health, dental and vision insurance premiums under COBRA, for up to 18 months following the end of the Severance Period; provided that Executive shall notify Employer immediately of any change in his circumstances that would warrant discontinuation of his COBRA coverage and benefits (including but not limited to Executive’s receipt of group medical, dental or vision benefits from any other employer). The existence and duration of Executive’s rights and/or the COBRA rights of any of Executive’s eligible dependents shall be determined in accordance with Section 4980B of the Code. Except as set forth in this Section 2. Executive agrees that he is not entitled to any other salary, bonus, severance, reimbursement, benefit or expectation of remuneration or other monies from the Company or Employer or any of their respective subsidiaries or Affiliates (as defined in the Release) except as required by law and except for the distribution of amounts to Executive pursuant to the Executive's continued compliance with his obligations under this Agreement, the Company shall have no obligation to the Executive other than: terms of (i) the payment Executive Plan in the aggregate amount of the Executive's earned and unpaid compensation through the effective date of such termination; $109,368.89, (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; Deferral Plan and (iii) the payment of an amount equal amounts payable pursuant to the sum Repurchase Agreement; provided that, for the avoidance of doubt, Executive may continue as a participant in the 401(k) Plan to the extent permitted under the terms thereof. For purposes of the Executive's annual Base Salary plus Stock Option Agreement, the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit payments set forth in clause this Section 2 shall constitute severance payments and the Noncompetition Period (iii)as defined therein) shall continue until the end of the Severance Period. Following the Termination Date, pursuant to the Company shall pay terms and conditions of the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (eachPlan, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares Executive shall be returned to the Company in exchange for a refund of the distributed his full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, balance under the Executive will be paid Plan in a lump lump-sum cash amount within 30 days following the date of termination of employment equal payment (subject to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (Amandatory withholdings for taxes) in the immediately preceding provisoaggregate amount of $109,368.89. Following the Termination Date, pursuant to the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two terms and (y) the sum conditions of the Executive's annual Base Salary plus Deferral Plan, Executive shall be distributed his full balance under the Executive's Maximum Bonus Amount Deferral Plan (as in effect as of the date of terminationsubject to mandatory withholdings for taxes). In the event of a material breach by Executive of this Agreement, the Release, the Repurchase Agreement or the provisions of the other agreements that survive pursuant to Section 3 below, the Executive is eligible Company shall, in addition to receive any other rights or remedies available at law or in equity or under the severance benefits provided for by Release, be entitled to cease making payments pursuant to this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement2.
Appears in 1 contract
Sources: Separation Agreement (Rem Consulting of Ohio, Inc.)
Severance. Subject Upon termination of his employment by the Company, Employee shall be entitled to the Executive's continued compliance with his obligations under this Agreement, following:
a. For “Cause”. If the Company terminates Employee’s employment with the Company for “Cause” (as hereinafter defined”, Employee shall have no obligation be entitled to receive any compensation and benefits due him through the Executive Termination Date (hereinafter defined).
b. If the Employee’s employment with the Company terminates for any other thanreason, including a termination without “Cause” pursuant to Section 8, upon death or disability pursuant to Section 9, by Employee pursuant to Section 10, by mutual agreement of Employee and the Company pursuant to Section 11or by failure of a successor to continue Employee’s employment following a Change in Control (hereinafter defined), then: all earnout and other consideration due Employee under that certain Merger Agreement dated April 26, 2007 and due Employee’s affiliate, Intellectus, LLC, under that certain Software License and Assets Purchase Agreement dated as of even date herewith shall be accelerated and paid on the Termination Date. If the Employee’s employment with the Company terminates for any reason other than for “Cause” or by mutual agreement of Employee and the Company pursuant to Section 11, including a termination without “Cause” pursuant to Section 8, upon death or disability pursuant to Section 9, by Employee pursuant to Section 10 or by failure of a successor to continue Employee’s employment following a Change in Control (hereinafter defined), then Employee shall receive the following: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to one (1) year of Employee’s salary, at the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as rate in effect as of the date of the notice of termination), 50% (ii) a pro rated portion of any and all performance bonuses to which shall be paid Employee would have been entitled as if Employee had remained employed by Company and achieved all goals and objectives under Section 4(c) for the year as well as the quarter in which such termination occurs, (iii) all performance bonuses to which Employee would have been entitled as if Employee had remained employed by Company and achieved all goals and objectives under Section 4(c) and all benefits for a period of six (6) months after the Executive upon the first business day following the six month anniversary of the date of termination of employment Termination Date, and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment the same medical coverage Employee carried while an active employee at Company’s expense for a period of six (6) months after the Termination Date, after which Employee will be eligible under Part 6 of Subtitle B of Title I of the New Parent Restricted Shares Employee Retirement Income Security Act of 1974, as amended (and, if applicable, Purchased Parent Shares“COBRA”) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A continue such coverage at his own expense. All of the Code, immediate payout of benefits previously accrued under foregoing shall be payable in accordance with the Company's Supplemental Executive Retirement Plan ’s then effective payroll schedule applicable to Employee. All such payments shall be in full settlement and (vi) executive outplacement benefits, except as otherwise required by law or by the terms discharge of the Company's benefit plans (excluding severance plans); PROVIDED’s obligation to Employee, that in and the event that such termination is within six months following the Closing, (A) in lieu obligation of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares make such payments shall be returned conditioned upon the execution by Employee of a separation and release agreement in a form satisfactory to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect reasonably acceptable to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementEmployee.
Appears in 1 contract
Sources: Senior Management Employment Agreement (Shea Development Corp.)
Severance. Subject (a) If the Company terminates ▇▇▇▇▇'▇ employment other than for Cause pursuant to the Executive's continued compliance with Section 1.3(d), and other than by reason of death or Disability pursuant to Section 3.7, or if ▇▇▇▇▇ resigns within ten (10) days following a material diminution in his title within six (6) months following a Change in Control then subject to ▇▇▇▇▇'▇ continuing obligations under this AgreementSection 2.4 and Section 2.5 and in consideration of the execution, delivery and effectiveness of a general release of claims in a standard form approved by the Company, the Company shall have no obligation pay to ▇▇▇▇▇ a lump sum of two (2) times ▇▇▇▇▇'▇ current Base Salary in cash within fifteen (15) days after the Executive other than: date of termination (i) or, if later, upon the payment effectiveness of the Executive's earned general release following any applicable revocation period) and shall vest one hundred percent (100%) of ▇▇▇▇▇'▇ then remaining unvested portion of the options granted in accordance with this Agreement, in addition to other amounts payable from qualified plans, nonqualified retirement plans, and deferred compensation plans, which amounts shall be paid in accordance with the terms of such plans.
(b) If ▇▇▇▇▇ resigns within ten (10) days following a material diminution in his title by the Board of Directors of the Company, other than in connection with a Change in Control or a termination of his employment for Cause or as a result of death or Disability pursuant to Section 3.7, then subject to ▇▇▇▇▇'▇ continuing obligations under Section 2.4 and Section 2.5 and in consideration of the execution, delivery and effectiveness of a general release of claims in a standard form approved by the Company, the Company shall vest fifty percent (50%) of ▇▇▇▇▇'▇ then remaining unvested portion of the options granted in accordance with this Agreement, and ▇▇▇▇▇'▇ entitlement to other amounts payable from qualified plans, nonqualified retirement plans, and deferred compensation plans shall be determined in accordance with the terms of such plans.
(c) If the Company terminates ▇▇▇▇▇'▇ employment for Cause, or if ▇▇▇▇▇ resigns (other than pursuant to Section 3.8(b) above), then ▇▇▇▇▇ shall only be entitled to be paid his accrued, unpaid compensation Base Salary through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of his termination of employment and the remainder of which his entitlement to other amounts payable from qualified plans, nonqualified retirement plans, and deferred compensation plans shall be paid to the Executive determined in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by accordance with the terms of the Company's benefit plans such plans.
(excluding d) No severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares benefits shall be returned provided pursuant to the Company in exchange Section 3.8(a) or Section 3.8(b) if ▇▇▇▇▇'▇ employment is terminated by reason of expiration or non-renewal of this Agreement for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementreason.
Appears in 1 contract
Severance. Subject to In the Executive's continued compliance with his obligations under this Agreement, the Company shall have no obligation to the Executive other than: (i) the payment event of the Executive's earned and unpaid compensation through ’s Separation From Service with the effective date of such termination; Company pursuant to Subsection 12 (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(bd), (ce) and or (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iiif), the Company shall pay the Executive Executive, as a lump sum cash severance allowance, the greater of (I) any minimum severance payments required under applicable Canadian or Toronto provincial law; or (II) all of the following: (A) an amount equal to twelve (12) months of his then-current Salary plus (B) the product of (xi) one-twelfth of the multiple set forth on ATTACHMENT 1 and Executive’s target amount of bonus in effect for the then-current year times (yii) the sum of the Executive's annual base salary and number of months of the current plan year during which the Executive was employed plus an additional twelve (12) months times (iii) the Executive's target bonus amount ’s individual goal performance score from the previous year, and (eachC) a continuation of Supplemental Benefits for twelve (12) months after the effective date of the Executive’s Separation From Service. These benefits shall be provided at the same cost to the Executive (if any), and at the same coverage level, as in effect as of immediately prior the effective date of the Executive’s Separation From Service. However, in the event the premium cost and/or level of coverage shall change for all management employees with respect to Supplemental Benefits, the Closing)cost and/or coverage level, likewise, shall change for the Executive in a corresponding manner. The amount of the severance allowance provided for in subsections (A) and (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares this Section 13 shall be returned paid out in equal installments over the severance period. Notwithstanding anything to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Sharescontrary contained herein, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior Executive receives (pursuant to the first anniversary operation of Section 9, above) severance benefits following the Executive’s Separation From Service with the Company after a Change in Control of the ClosingCompany, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the then Executive shall not be eligible entitled to receive any payment of a severance allowance pursuant to this Section 13. If the Executive is not entitled severance benefits under any other Company planpursuant to Section 9, policy, or agreementthen the Executive shall continue to be eligible for a severance allowance per this Section 13.
Appears in 1 contract
Severance. Subject (a) Effective as of the Closing Date, Buyer shall have in effect a severance plan covering Continued Non-Union Employees that contains terms identical in all material respects to those under Seller's Severance Pay Plan for Management Employees as of the Closing Date.
(b) Buyer shall, subject to any applicable laws, provide a special separation allowance for any Continued Employee whose employment with Buyer is terminated involuntarily by Buyer other than for cause on or prior to, in the case of Continued Non-Union Employees, three years after the Closing Date and, in the case of Continued Union Employees, the expiration date of the Collective Bargaining Agreement. Such allowance shall be not less than the sum of four weeks pay plus one week pay for each completed year of service (as determined by aggregating each affected individual's respective service with Seller and Buyer) and shall be payable by Buyer (to the Executive's continued compliance with his obligations under extent not paid pursuant to any Buyer severance plan referenced in Section 9.08(a)) in a lump sum within 30 days after termination of employment. In addition, in the case of each Continued Non-Union Employee described in the first sentence of this AgreementSection 9.08(b), the Company Buyer shall have no obligation pay (to the Executive other than: extent not paid pursuant to any Buyer severance plan referenced in Section 9.08(a)) the Continued Non-Union Employee a lump sum equal to the excess of (i) the payment actuarial equivalent of the ExecutiveEmployee's earned "potential benefit" under the applicable Buyer's Pension Plans, which such Employee would receive if such Employee's employment continued until three years after the Closing Date and unpaid such Employee's base and incentive compensation through for such deemed additional period was the effective same as in effect on the date of such termination; Employee's termination of employment with Buyer, over (ii) the payment actuarial equivalent of any deferred bonussuch Employee's "actual benefit" under the applicable Buyer's Pension Plans, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination)such Employee's termination of employment from Buyer. For the purpose of the foregoing sentence, 50% (i) the term "potential benefit" shall refer to the monthly pension that would have been payable to the applicable Employee commencing on the first day of the month following the latest of (A) the last day of the deemed additional period, (B) Employee's attainment of age 55, or (C) the earlier of (l) the first date as of which the sum of such Employee's age and years of service, as taken into account in determining the actuarial reduction for commencement prior to normal retirement age that is to be applied to his accrued benefit under the applicable Buyer's Pension Plans, equals 75 or (2) such Employee's attainment of age 65, (ii) the term "actual benefit" shall be paid refer to the Executive upon monthly pension payable to such Employee under the first business day following applicable Buyer's Pension Plans commencing as of the six month anniversary date determined in accordance with clause (i) of this sentence, and (iii) the actuarial equivalent of the "potential benefit" and the "actual benefit" shall each be a lump sum payable as of the date of such Employee's termination of employment and from Buyer, determined on the remainder basis of which shall be paid the interest rate used to determine the amount of lump sum distributions and, to the Executive extent applicable, other actuarial assumptions then in equal installments each month thereafter for six months; (iv) treatment effect under the applicable Buyer's Pension Plans. Buyer shall also provide outplacement services to such terminated Continued Non-Union Employee appropriate to the level of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) Employee's position and job responsibilities. Buyer shall also continue to provide or cause to be provided to any such terminated Continued Employee health insurance coverage and group term and universal life insurance coverage at the same rates as described below in Section 4.4(b), (c) and (d); (v) subject for active Continued Employees for a period equal to the provisions number of Section 409A weeks of separation allowance which any such terminated Continued Employee is entitled to from Buyer. Buyer shall have the right to require a release in form reasonably satisfactory to Buyer as a condition for eligibility to receive such separation allowance. The allowance shall not apply to Continued Employees whose employment is terminated due to death or expiration of sick allowance or other authorized leave of absence or who terminate employment voluntarily. If at any time during the three-year period following the Closing Date, Buyer shall assign a Continued Non-Union Employee to work on a regular basis at a location that is more than fifty miles from the location to which such Employee is assigned as of the CodeClosing Date, immediate payout of Buyer shall offer such Employee the option to terminate employment and receive the severance benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that set forth in the event that such termination is within six months following the Closing, (Athis Section 9.08(b) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementreassignment.
Appears in 1 contract
Sources: Asset Purchase Agreement (Consolidated Edison Co of New York Inc)
Severance. (a) Subject to Employee’s timely execution of this Separation Agreement in accordance with the Executive's continued compliance with his obligations under this terms hereof, and subject to Employee’s agreement to be bound by, and adherence to, 8x8’s Confidential Information, Non-Disclosure and Invention Assignment Agreement attached hereto as Attachment B (the “IP Agreement”), to the extent the provisions of such IP Agreement apply following the end of employment, the Company shall have no obligation to provide Employee, within ten (10) business days following the Executive other than: Effective Date of this Separation Agreement (i) as defined in Section 12 below), a lump sum severance payment in the payment amount of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus$363,300, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal which is equivalent to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), i) 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual Employee’s base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the ClosingTermination Date (totaling $273,000) and (ii) the prorated portion of the second half bonus for fiscal year 2023 (beginning October 1, 2022) through the Termination Date (totaling $90,300). 2243631.12A-NYCSR03A - MSW
(b) Subject to Employee’s timely execution (and non-revocation) of the Supplemental Release of Claims attached hereto as Attachment C (the “Supplemental Release”) in accordance with the terms thereof, and subject to Employee’s agreement to be bound by, and adherence to, the IP Agreement, to the extent the provisions of such IP Agreement apply following the end of employment, the Company shall provide Employee with the following benefits:
i. Provided that Employee elects to receive continuation of coverage as of the Termination Date under the Company’s group health insurance plans (including medical and dental insurance) pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), reimbursement for the full premium amounts charged to Employee under COBRA for the continuation of such group health insurance coverage, for a period of eighteen (B18) months following the Termination Date; provided, however, reimbursement of any such premium amounts due between the Termination Date and the Supplemental Release Effective Date (as defined in lieu the Supplemental Release) shall be made to Employee within ten (10) business days following the Supplemental Release Effective Date;
ii. Employee shall have the right, on the same basis as employees of the Company, for a period of eighteen (18) months following the Termination Date, to participate in and to receive benefits under any Company life, disability or other group insurance plans not described in Section 2(b)(i), as well as under the Company’s educational assistance and other benefit set forth in clause plan and policies, to the extent such rights are available, or can be secured on commercially reasonable terms, under such plans and policies; and
iii. Employee’s vesting will be accelerated by twenty-four (iv24) months following the Termination Date with respect to any Purchased Parent Sharesof Employee’s Time-Based Equity Awards (as defined in the Policy) that were not vested as of the Termination Date. Attachment D sets forth Employee’s vested Time-Based Equity Awards as of the Termination Date, any Purchased Parent Shares shall be returned together with the number of such Time-Based Awards the vesting of which is accelerating in accordance with this Section 2(b)(iii).
(c) Provided that this Separation Agreement and the Supplemental Release become effective and non-revocable in accordance with their terms, notwithstanding anything contained in this Separation Agreement or the Supplemental Release to the Company in exchange for contrary, if a refund of the full purchase price Change-in-Control occurs within 30 days following such return and three (C3) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days months following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDEDTermination Date, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect then effective as of the date of terminationsuch Change-in Control:
i. Employee will be deemed to have satisfied the performance vesting condition for 100% of the Company shares covered by Employee’s outstanding Stock Performance-Based Equity Awards (as defined in the Policy) that have a target Company share price for vesting purposes equal to or less than the Transaction Price (as defined in the Policy), and Employee will fully vest in all shares covered by such Stock Performance-Based Equity Awards for which the performance condition is deemed satisfied;
ii. Employee will be deemed to have satisfied the performance vesting condition for that percentage of the Company shares covered by Employee’s TSR Performance-Based Equity Awards (as defined in the Policy) determined by applying the formula set forth in the applicable award agreement as if (a) the last day of each performance measurement period specified in such agreement were the date of the Change-in-Control and (b) the fair market value of the Company’s common stock on such date were the Transaction Price provided, and Employee will fully vest in all shares covered by such TSR Performance-Based Equity Awards for which the performance condition is deemed satisfied; and 2243631.12A-NYCSR03A - MSW
iii. Employee’s vesting with respect to any of Employee’s Time-Based Equity Awards that remain unvested following the Termination Date will be accelerated in full.
iv. Attachment E sets forth Employee’s unvested Stock Performance-Based Equity Awards, TSR Performance-Based Equity Awards and Time-Based Equity Awards as of the Termination Date, together with the number of shares subject to such awards that would vest (or be eligible to vest) upon a Change-in-Control in accordance with this Section 2(c). For the avoidance of doubt, Employee will receive no acceleration of outstanding Stock Performance-Based Equity Awards or TSR Performance-Based Equity Awards unless a Change-in-Control occurs within three (3) months following the Termination Date.
(d) The Parties acknowledge and agree that the severance payments and benefits set forth in this Section 2 are the severance benefits contemplated by the Policy (as modified by the Employment Agreement) (collectively, the “Severance Benefits”). In addition, each of the event that the Executive is eligible Severance Benefits are subject to receive the severance benefits provided for by this Section 4.4(a)all required and authorized withholdings and deductions, the Executive shall including but not be eligible to receive severance benefits under any other Company planlimited to, policyall applicable federal, or agreementstate and local withholding taxes.
Appears in 1 contract
Sources: Separation Agreement and General Release (8x8 Inc /De/)
Severance. (a) If Executive has a Separation from Service as a result of Executive’s discharge by the Company without Cause or by reason of Executive’s resignation for Good Reason or as a result of Executive’s death or Permanent Disability, Executive shall be entitled to receive, in lieu of any severance benefits to which Executive may otherwise be entitled under any severance plan or program of the Company, the benefits provided below, which, with respect to clauses (ii), (iii) and the last sentence of clause (iv) below, if applicable, will be payable in a lump sum within ten (10) days following the effective date of the Release (as defined below):
(i) The Company shall pay to Executive (or his or her estate, if applicable) (A) his or her fully earned but unpaid base salary, when due, through the date of Executive’s Separation from Service at the rate then in effect, plus (B) all other benefits, if any, under any Company group retirement plan, nonqualified deferred compensation plan, equity award plan or agreement (other than any such plan or agreement pertaining to Stock Awards whose treatment is prescribed by Section 3(a)(v) below), health benefits plan or other Company group benefit plan to which Executive (or his or her estate, if applicable) may be entitled pursuant to the terms of such plans or agreements at the time of Executive’s Separation from Service;
(ii) Subject to Section 3(c) and, other than in the case of Executive's ’s death, Executive’s continued compliance with his obligations Section 4, Executive shall be entitled to receive severance pay in an amount equal to one hundred percent (100%) multiplied by Executive’s annual base salary as in effect immediately prior to the date of Executive’s Separation from Service;
(iii) Subject to Section 3(c) and, other than in the case of Executive’s death, Executive’s continued compliance with Section 4, payment of any amount equal to any annual bonus to which Executive would have been entitled to receive as of the date of Executive’s Separation from Service based on the Company’s and/or Executive’s performance through such date, to be determined by the Board or the Compensation Committee thereof in good faith in accordance with the terms of the applicable bonus program (for the avoidance of doubt, any bonus or part thereof that relates to goals or objectives covering a full calendar year will not be paid unless Executive’s Separation from Service occurs after the end of such calendar year);
(iv) Subject to Section 3(c) and, other than in the case of Executive’s death, Executive’s continued compliance with Section 4, for the period beginning on the date of Executive’s Separation from Service and ending on the date which is twelve (12) full months following the date of Executive’s Separation from Service (or, if earlier, the date on which the applicable continuation period under this Agreementthe Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) expires) (the “COBRA Coverage Period”), the Company shall have no obligation arrange to provide Executive and/or his or her eligible dependents who were covered under the Company’s health insurance plans as of the date of Executive’s Separation from Service with health (including medical and dental) insurance benefits substantially similar to those provided to Executive and his or her dependents immediately prior to the Executive other than: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; Separation from Service. If the Company is not reasonably able to continue health insurance benefits coverage under the Company’s insurance plans, the Company shall provide substantially equivalent coverage under other third-party insurance sources. If any of the Company’s health benefits are self-funded as of the date of Executive’s Separation from Service, or if the Company cannot provide the foregoing benefits in a manner that is exempt from or otherwise compliant with applicable law (ii) the payment of any deferred bonusincluding, subject to the provisions of without limitation, Section 409A of the Code; Code and Section 2716 of the Public Health Service Act), instead of providing continued health insurance benefits as set forth above, the Company shall instead pay to Executive (iiior his or her estate, if applicable) the payment of an amount equal to the sum of monthly premium payment for Executive and/or his or her eligible dependents who were covered under the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect Company’s health plans as of the date of termination), 50% of which shall be paid Executive’s Separation from Service (calculated by reference to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect premium as of the date of terminationSeparation from Service) as currently taxable compensation in substantially equal monthly installments over the COBRA Coverage Period (or the remaining portion thereof). In ; and
(v) Subject to Section 3(c) and, other than in the case of Executive’s death, Executive’s continued compliance with Section 4:
(A) the vesting of each of Executive’s outstanding Stock Awards (other than stock options, the vesting of which shall not accelerate pursuant to this clause (A)) (other than Performance Awards) shall be accelerated as to the number of Stock Awards that would vest over the twelve (12) month period following the date of Executive’s Separation from Service had Executive remained continuously employed by the Company during such period, with such acceleration to be effective as of the date of Executive’s Separation from Service;
(B) the post-termination exercise period of each of Executive’s outstanding stock options shall be extended through the first anniversary of Executive’s Separation from Service (provided that in no event that shall any stock option remain exercisable beyond the original outside expiration date of such stock option); and (C) except as otherwise provided in any agreement evidencing a Performance Award, with respect to each outstanding Performance Award held by Executive is as of the date of his or her Separation from Service, if Executive’s Separation from Service occurs more than six (6) months and one (1) day into the performance period then-underway at the time of Executive’s Separation from Service (the “Current Performance Period”) under such Performance Award, Executive (or his or her estate, if applicable) shall remain eligible to receive vest in such portion of the severance benefits Performance Award as is attributable to the Current Performance Period in accordance with the terms of such Performance Award based on actual performance relative to the performance goals applicable to the Current Performance Period, which vesting shall be effective on the last day of the Current Performance Period (or such other settlement date as may be provided for by in the agreement evidencing the Performance Award); provided, however, that in no event shall such vesting be effective later than the date specified in the first sentence of Section 7.8(a) below. Any portion of an outstanding Performance Award that is not eligible to vest based on the Current Performance Period shall terminate as of the date of Executive’s Separation from Service. Nothing in this Section 4.4(a)3(a)(v) shall be construed to limit any more favorable vesting applicable to Executive’s Stock Awards in the Company’s equity plan(s) and/or the stock award agreements under which the Stock Awards were granted. The foregoing provisions are hereby deemed to be a part of each Stock Award and, unless expressly superseded by the Executive shall not be eligible terms of any agreement evidencing a Performance Award, to receive severance benefits under supersede any other Company plan, policy, less favorable provision in any agreement or agreementplan regarding such Stock Award.
Appears in 1 contract
Severance. (a) Subject to the Executivelimitations set forth in Section 13, if the Employee's continued compliance with his employment is terminated by the Subsidiary without Substantial Cause (including, without limitation, upon termination of this Agreement following notice thereof by the Company or the Subsidiary pursuant to Section 3 hereof) or by the Employee for Good Reason, then, without further liability of the Subsidiary or the Company, except for their obligations pursuant to this Section 10(a) and their obligations to pay or provide any salary and expenses accrued to the termination date, any unpaid bonus referred to in Section 4(b) hereof, any Closing Bonus (whether payable before or after such termination of employment) pursuant to Section 4(c) hereof, and such rights and benefits of participation of or in respect of the Employee under this Agreementemployee benefit plans, programs and arrangements of the Company, the Company shall have no obligation to Subsidiary and their Affiliates, in accordance with the Executive other than: terms and provisions of such plans, programs and arrangements, (i) the payment of Employee shall be entitled to severance compensation for the Executive's earned and unpaid compensation through the effective date of Severance Period (as hereinafter defined) following any such termination, payable in equal monthly installments, subject to withholding and other applicable taxes, at an annual rate equal to the Employee's base salary for the year of termination, as such annual rate is increased from year to year in accordance with Section 4(a) hereof; (ii) as additional severance compensation following any such termination, the payment of any deferred bonus, subject Employee shall be entitled to the provisions bonus compensation referred to in Section 4(b) hereof for the Severance Period, payable as and when ordinarily determined for the applicable year, with a bonus not less than seventy-five percent (75%) of Section 409A his rate of annual base salary in effect for the Codeyear of termination; (iii) the payment of an amount equal to Employee and the sum of the ExecutiveEmployee's annual Base Salary plus the Executive's Maximum Bonus Amount spouse and Dependent Children (as in effect as of the date of termination), 50% of which hereinafter defined) shall be paid entitled to the Executive upon the first business day following the six month anniversary of medical and dental benefits as provided immediately prior to the date of termination of employment and the remainder of which shall continue for the Severance Period (which benefits shall be paid terminated sooner to the Executive extent provided by another employer and shall be subject to coordination with Medicare payments in equal installments each month thereafter for six monthsaccordance with the terms of the applicable benefit plan); (iv) treatment of the New Parent Restricted Shares (andEmployee shall be entitled to receive, during the Severance Period, the benefits described in Section 4(d) hereof and the automobile rights and perquisites described in Section 4(e) hereof, provided, however, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject any such benefit is not available to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.the
Appears in 1 contract
Severance. Subject (a) If Employee’s employment is terminated by the Company without Cause or by Employee for Good Reason within twenty-four (24) months following a Change in Control, then subject to the Executive's requirements of this Section 2 and Employee’s continued compliance with his obligations Section 3, Employee shall be entitled to receive, in lieu of any severance benefits to which Employee may otherwise be entitled, including under this Agreementany Other Arrangement (as defined below), the Company shall have no obligation to the Executive other than: benefits provided below:
(i) The Company shall pay to Employee (A) his or her fully earned but unpaid base salary, when due, through the payment date of termination at the rate then in effect, (B) his or her accrued but unpaid vacation or paid time off through the date of termination, when due, plus (C) all other amounts or benefits to which Employee is entitled under any compensation, retirement or benefit plan or practice of the Executive's earned and unpaid compensation through Company at the effective date time of termination in accordance with the terms of such termination; plans or practices, including, without limitation, any continuation of benefits required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) or applicable law (the “Accrued Obligations”);
(ii) the payment of any deferred bonus, subject Employee shall be entitled to the provisions of Section 409A of the Code; (iii) the payment of receive severance pay in an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount of:
(A) Employee’s monthly base salary as in effect immediately prior to the date of termination for the twelve (12) month period following the date of termination, plus
(B) An amount equal to the greater of (1) Employee’s maximum target bonus for the fiscal year during which the date of termination occurs or (2) Employee’s maximum target bonus for the fiscal year during which the Change in Control occurs, payable, in the case of both clauses (A) and (B), in a lump sum within ten (10) days following the effective date of Employee’s Release, but in no event later than two and one-half (2 ½) months following the last day of the calendar year in which the date of Employee’s termination of employment occurs;
(iii) Employee shall be entitled to receive a lump sum cash payment equal to (A) twelve (12) multiplied by (B) the monthly premium Employee would be required to pay for continuation coverage pursuant to COBRA for Employee and his or her eligible dependents who were covered under the Company’s health plans as of the date of Employee’s termination such that Employee’s premiums are the same as for active employees (calculated by reference to the premium as of the date of termination) (provided that Employee shall be solely responsible for all matters relating to his or her continuation of coverage pursuant to COBRA, including, without limitation, his or her election of such coverage and his or her timely payment of premiums), 50% of which payment shall be paid to the Executive upon the first business day within ten (10) days following the six month anniversary effective date of Employee’s Release, but in no event later than two and one-half (2 ½) months following the last day of the calendar year in which the date of Employee’s termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six monthsoccurs; and
(iv) treatment The vesting and/or exercisability of any outstanding unvested portions of Employee’s Stock Awards the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) vesting of which is solely time-based and (d); (v) not subject to the provisions satisfaction of Section 409A a performance condition shall be automatically accelerated on the effective date of Employee’s Release. In ||| addition, Employee’s Stock Awards may be exercised by Employee (or Employee’s guardian or legal representative) until (A) the Codedate that is nine (9) months following the date of termination, immediate payout or (B) such longer period as may be specified in the applicable stock award agreement; provided, however, that in no event shall any Stock Award remain exercisable beyond the original outside expiration date of benefits previously accrued under such Stock Award; provided, however, that, any Stock Awards that vest in whole or in part based on the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or attainment of performance-vesting conditions shall be governed by the terms of the applicable Stock Award agreement. Employee’s vested Stock Awards shall be governed by the terms and conditions of the Stock Award agreements and the Company's benefit plans (excluding severance plans); PROVIDED’s equity plan under which such Stock Awards were granted. Notwithstanding the foregoing, that in the event that the Stock Award agreement or the equity plan pursuant to which the Stock Awards were granted provides for more favorable treatment of Employee’s Stock Awards, nothing in this Agreement is intended to limit Employee’s right to such termination is within six months following the Closing, (A) more favorable treatment as provided in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on Stock Award agreement or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company equity plan, policy, or agreement.
Appears in 1 contract
Sources: Change in Control Severance Agreement (Ligand Pharmaceuticals Inc)
Severance. Subject If your employment is terminated by the Company for reasons other than Cause or on account of your death, or if you resign for Good Reason, in either case during the 24-month period beginning on the date of a Change in Control, and you execute a Separation Agreement and General Release within 21 days after your Separation from Service (or within 45 days after your Separation from Service, if permitted by the Company) and such Separation Agreement and General Release become irrevocable, then:
a. The Company will pay a lump-sum amount to you, within sixty (60) calendar days following your Separation from Service, equal to two (2.0) times your Annualized Total Compensation; provided that if the Executive's continued compliance with his obligations under this Agreementsixty (60) day period begins in one taxable year and ends in a subsequent taxable year, the Company shall have no obligation to payment will be made in the Executive other than: (i) subsequent taxable year; however, if the payment Change in Control is not a “change in control event,” within the meaning of section 409A of the Executive's earned and unpaid compensation through Internal Revenue Code of 1986, as amended (the effective date “Code”), then such amount shall be payable in equal regular intervals over the twenty-four (24) months, in accordance with the Company’s regular payroll practices, beginning on the first practicable paydate following expiration of such termination; the applicable revocation period. This amount, whether paid as a lump sum or in installments, constitutes a “Change-in-Control Severance Benefit” under the terms of the ▇▇ ▇▇▇▇▇▇▇▇▇ Senior Leadership Separation Pay Plan (ii) the payment of any deferred bonus“SLSPP”), subject to the limits set forth therein, all provisions of Section 409A of the Code; SLSPP (iiiexcept as otherwise provided in the SLSPP) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination)shall apply thereto, 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or set forth in this Agreement, no other amount shall be payable under the SLSPP. Any dispute regarding this Change-in-Control Severance Benefit, including your eligibility therefor, will be governed by the terms of the SLSPP (including its claims and appeals procedures).
b. The Company also will pay a lump-sum amount to you equal to the amount, if any, that would have been payable to you under the Company's benefit plans ’s annual bonus program for the calendar year that includes the date of your Separation from Service had you remained employed through the end of such calendar year on the basis of the Company’s actual performance for such calendar year (excluding severance planswithout regard to any objectives specific to you); PROVIDEDprovided, however, that such amount shall be adjusted on a pro rata basis based on the number of days you were actually employed during the calendar year in which your Separation from Service occurs. Such lump-sum amount, if any, shall be paid at the same time as annual bonuses for such year are paid to employees of the Company, but in no event later than two and one half (2 1/2 months) after the end of the calendar year that includes the date of your Separation from Service. This lump-sum amount constitutes a “Change-in-Control Severance Benefit” under the terms of the SLSPP, subject to the limits set forth therein, and all provisions of the SLSPP (except as otherwise provided in the SLSPP) shall apply thereto, and, except as set forth in this Agreement, no other amount shall be payable under the SLSPP. Any dispute regarding this Change-in-Control Severance Benefit, including your eligibility therefor, will be governed by the terms of the SLSPP (including its claims and appeals procedures).
c. The Company will provide to you:
i. continued medical (including the executive physical benefit program), dental and vision coverage pursuant to COBRA (“COBRA Continuation Coverage”) subsidized by the Company at active employee rates for 18 months. Such benefits will be provided to you through COBRA at the same coverage level as in effect immediately prior to your Separation from Service (or at such other level as you may elect in accordance with COBRA during annual enrollment), will require you to elect COBRA Continuation Coverage for said benefits through the Company’s standard COBRA administration system, and will take the form of a subsidy of the COBRA Continuation Coverage premium payable by you equal to an amount that results in your remaining premium for COBRA Continuation Coverage (and only such coverage) being the same dollar amount that you would have paid for the same benefit coverage as an active employee. For purposes of clarity, the medical, dental and vision benefits shall be discontinued prior to the end of the stated continuation period in the event that such termination is within six months following you cease to be eligible under COBRA for COBRA Continuation Coverage under the ClosingCompany’s medical, dental and vision plans (including, for example, when you become covered by a group health plan of a subsequent employer).
ii. your (A) in lieu separate individual life and disability policies paid for by the Company to the extent such coverage can reasonably be continued under the terms of the applicable policy and (B) financial planning benefit, in each case, utilized immediately preceding your Separation from Service, for twenty-four (24) months; provided that the value of a benefit available in any calendar year that is not used in that calendar year may not be carried over and made available in any other calendar year. In the event the Company or its Affiliates no longer offer, change, or discontinue such benefits during the 24-month severance period set forth in clause (iii)above, the Company or its Affiliates will provide you with any corresponding benefits offered to active current employees. Notwithstanding the foregoing these medical, dental, vision, and other benefits shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately be discontinued prior to the Closing), (B) in lieu end of the benefit set forth continuation period stated above in clause (iv) with respect the event that you become eligible for substantially similar coverage or benefits from a subsequent employer, as determined solely by the Company in good faith. For purposes of enforcing this provision, you shall have a duty to keep the Company informed as to the terms and conditions of any Purchased Parent Sharessubsequent employment and the corresponding coverage or benefits you are eligible for based on such employment, any Purchased Parent Shares and shall be returned provide correct and complete information concerning the same to the Company in exchange for a refund timely manner. Your short-term and long-term disability, group life insurance and accidental death and dismemberment insurance will end on the date of your Separation from Service. The benefit described in this Section 1(c) constitutes a “Change-in-Control Severance Benefit” under the terms of the full purchase price within 30 days following such return SLSPP, subject to the limits set forth therein, and (C) in lieu all provisions of the benefit SLSPP (except as otherwise provided in the SLSPP) shall apply thereto, and, except as set forth in clause (iv) with respect to any Purchased Parent Sharesthis Agreement, no other amount shall be payable under the Executive SLSPP. Any dispute regarding this Change-in- Control Severance Benefit, including your eligibility therefor, will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld governed by the terms of the SLSPP (including its claims and appeals procedures).
d. Any outstanding stock options, restricted stock awards, performance share units or other equity awards granted to you from time to time shall vest in accordance with the terms of the applicable equity compensation plan and award agreements. Your rights of indemnification under the Company’s and any of its Affiliates’ organizational documents, any plan or agreement, at law, or otherwise and your rights thereunder to directors’ and officers’ liability insurance coverage for, in both cases, actions as an officer or director of the Company in connection with any Section 83(b) election made by the Executive with respect and its Affiliates shall survive your Separation from Service to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination)extent provided therein. In the event that the Executive is eligible of your Separation from Service, you will be deemed to receive the severance benefits provided for by this Section 4.4(a)resign as an officer and director of, and from all other positions with, the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementand its Affiliates and employee benefit plans.
Appears in 1 contract
Sources: Change in Control Agreement (RR Donnelley & Sons Co)
Severance. Subject to (a) If at any time during the Employment Period the Executive's continued compliance with his obligations under this Agreement, the Company shall have no obligation to the Executive other than: employment (i) is terminated by the payment Corporation for reasons other than Cause (as it is defined in subsection (c), or the reasons specified in subsection (b) herein), or (ii) the Corporation and Executive do not agree to renew Executive's employment at the end of the Employment Period upon terms at least similar to the terms of this Agreement; then Executive shall be entitled to receive: (1) monthly base salary at the annual rate then in effect for eighteen months after termination of employment, (2) a prorated portion of the then current year's cash bonus opportunity and the Long Term Incentive Plan bonus targets as calculated below, (3) an acceleration and lapse of all the restrictions on exercisability of all outstanding stock options previously granted to Executive, (4) an acceleration and lapse of all restrictions on all stock previously awarded and in escrow under the Corporate Development Incentive ("CDIP") Plan, so that said stock is released and delivered to Executive, and (5) a prorated portion of the then current year's CDIP dollar amount opportunity. For purposes of determining bonuses for each respective plan mentioned in subsections (2) and (5) above, the attainment of the performance goal shall be determined by reference to the Corporation's actual performance through the end of the month in which termination occurs, extrapolated in a straight line over the uncompleted portion of the performance period. The resulting award amount shall be prorated by comparing the period from the beginning of each performance period through the end of the month in which termination occurs versus each total performance period. Five bonus calculations will be made for Executive, although actual performance will determine if a bonus will be paid. All bonuses earned shall be paid in equal installments over the 18 months.
(b) The respective sections cited below explain what payments are due to Executive after termination of employment if at any time during the Employment Period a termination occurs as a result of: (1) death (Section 1(f)), or (2) Change in Control (Section 1 (d)), or (3) disability (Section 1(e)).
(c) If at any time during the Employment Period, (1) this Agreement terminates as a result of the Executive voluntarily resigning, or (2) the Corporation terminates the Executive for Cause, then all of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of rights under this Agreement which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days would accrue following the date of that termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementcease.
Appears in 1 contract
Sources: Employment Agreement (Kellwood Co)
Severance. Subject to (i) Upon a termination of the Executive's continued compliance with his obligations under this Agreementemployment (other than by reason of death or Disability which is addressed in Section 5(d)(ii)), subject to the satisfaction of the Release Condition described in Section 5(f) below, the Company shall have no obligation Executive will be entitled to the Executive other than: receive:
(iA) the payment of the Executive's earned accrued and unpaid compensation Base Compensation through the effective date of termination, the Executive's accrued and unused vacation days as of the date of termination, and reimbursement of incurred and unreimbursed expenses under Section 4(d), within thirty (30) days following the date of termination (collectively, the amounts in this subsection (A), the “Accrued Obligations”);
(B) any STI award earned with respect to a fiscal year ending prior to the date of such termination; termination but unpaid as of such date, payable at the same time in the year of termination as such payment would be made if the Executive continued to be employed by the Company (iithe “Prior Year STI Award”);
(C) the payment of any deferred bonus, subject LTI award with respect to a fiscal year ending prior to the provisions date of Section 409A such termination but unpaid as of such date, shall be granted at the same time in the year of termination as such grant would be made if the Executive continued to be employed by the Company (the “Prior Year LTI Award”);
(D) unless the Executive was terminated for Cause or the Executive terminated his employment other than for Good Reason or the termination occurred at the expiration of the Code; (iii) the payment of Term, an amount equal to the sum product of two (2) times the Executive's annual Base Salary plus Compensation, which shall be paid in equal installments on the dates on which Executive's Maximum Bonus Amount (as ’s Base Compensation would otherwise have been paid in accordance with the Company’s normal payroll dates in effect as of the date of terminationExecutive’s termination of employment as if Executive’s employment had continued for such period, provided that the delay of the payment of any such amounts pending satisfaction of the Release Condition described in Section 5(f) below shall be accumulated and paid on the first of the Company’s first such scheduled payroll date following satisfaction of the Release Condition;
(E) unless the Executive was terminated for Cause or the Executive terminated his employment other than for Good Reason, any STI award related to the year in which the termination occurs calculated based on actual performance through the end of the applicable performance period and prorated for the number of days of the Executive's employment in the year in which the termination occurs, payable in a single lump sum at the same time as such payment would be made if the Executive continued to be employed by the Company (the “Pro-Rata Bonus”). The Pro-Rata Bonus shall supersede any conflicting provisions in the STI Plan;
(F) unless the Executive was terminated for Cause or the Executive terminated his employment other than for Good Reason, an LTI Award shall be made for the service of the Executive during the portion of the year in which the termination occurs (the “Pro-Rata LTI Award”), 50% of which Pro-Rata LTI Award shall be paid equal to the product of (x) the number of RSUs that would be included in a LTI award if he had served for the entire year in which the termination occurred, times (y) a fraction, with the numerator being the number of days of the Executive’s employment in the year in which the termination occurs and the denominator being 365. The Pro-Rata LTI Award shall be granted at the same time as such award would be made if the Executive upon continued to be employed by the first business day following Company. The Pro-Rata LTI Award shall supersede any conflicting provision in the six month anniversary LTI Plan;
(G) unless the Executive was terminated for Cause or the Executive terminated his employment other than for Good Reason, all RSUs that have been granted to Executive (including those referenced in Section 5(d)(i)(C) and Section 5(d)(i)(F)), but that have not vested as of the date of termination of employment and employment, shall vest in the remainder of which shall be paid Executive to the Executive in equal installments each month thereafter for six months; (iv) treatment same extent as if his employment with the Company had continued through the expiration of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A latest vesting period of the Code, immediate payout last RSUs awarded to him (the date of benefits previously accrued under expiration of such last vesting period is referred to herein as the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except “Final Vesting Date”). The foregoing vesting provision shall supersede any conflicting provisions in any Agreement as to Award of RSUs that would otherwise required by law or by the terms require forfeiture of RSUs that were not vested as of the Company's benefit plans date of termination of employment;
(excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (AH) in lieu of the benefit set forth in clause (iii), the Company shall pay unless the Executive a lump sum cash was terminated for Cause or the Executive terminated his employment other than for Good Reason, an amount equal to the product of (x) $2,000 times (y) the multiple set forth number of full calendar months between the month in which the Executive was terminated and the month in which the Executive and his current spouse reach the age at which both of them are eligible to receive Medicare (or similar benefits under any successor legislation replacing Medicare; referred to herein collectively as the “Medicare Eligibility Age”)), payable in a single lump sum as soon as reasonably practical following satisfaction of the Release Condition described in Section 5(f) (the “Lump Sum Payment”). If, during the time period covered in clause (y) above (“Coverage Period”), the monthly COBRA premium for MGP coverage is greater than $2,000 (“COBRA Excess Amount”), then MGP shall pay the COBRA Excess Amount to Executive on ATTACHMENT 1 the Company’s last payroll date for each remaining month in the Coverage Period. If the Medicare Eligibility Age is increased after the Lump Sum Payment is made, then the Coverage Period shall be extended accordingly and an additional lump sum shall be paid to Executive, as soon as reasonably practicable, in an amount equal to the difference between the original Lump Sum Payment and the amount that would have been computed as the product of clauses (x) and (y) above if such extended Coverage Period had been used in clause (y) above to compute the sum original Lump Sum Payment.
(I) any other amounts or benefits due to the Executive under Section 4(f) of this Agreement or otherwise in accordance with the Company’s benefit, fringe benefit plans, programs or policies, payable at such times and otherwise in accordance with the terms and conditions such arrangements (the “Other Benefits”); and
(ii) Upon a termination of employment due to the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Sharesdeath or Disability, the Executive will or a representative of the Executive shall be entitled to the Accrued Obligations, the Other Benefits, the Prior Year STI Award, the Prior Year LTI Award, the Pro-Rata Bonus, and an amount equal to the Executive’s Base Compensation (which shall be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments on the product of (x) two and (y) dates on which Executive’s Base Compensation would otherwise have been paid in accordance with the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as Company’s normal payroll dates in effect as of the date of termination). In the event Executive’s termination of employment as if Executive’s employment had continued for such period, provided that the Executive is eligible to receive delay of the severance benefits provided for by this payment of any such amounts pending satisfaction of the Release Condition described in Section 4.4(a5(f) below shall be accumulated and paid on the first of the Company’s first such scheduled payroll date following satisfaction of the Release Condition), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.
Appears in 1 contract
Severance. Subject to the ExecutiveEmployee's continued compliance with his obligations under execution of a Release of Claims pursuant to Section 6 of this Agreement, if, during the Term, the Company terminates Employee's employment without Cause, the Company shall have no obligation to the Executive other than: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an pay Employee a lump sum amount equal to the sum twelve (12) months of the ExecutiveEmployee's annual Base Salary plus at the Executive's Maximum Bonus Amount (as average rate in effect as over the term of this agreement (the date of termination"Severance Payment"), 50% of which shall be paid . If Employee becomes entitled to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii)Severance Payment, the Company shall pay the Executive a lump sum cash amount equal Severance Payment to Employee as soon as administratively practicable following the product date on which the Release of Claims (xdescribed in Section 6 of this Agreement) the multiple set forth on ATTACHMENT 1 becomes effective and irrevocable, but in no event later than sixty-five (y65) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date on which Employee's Termination of Employment occurs. In addition to the Severance Payment, if Employee is enrolled in the Company's medical insurance plan on the date of termination and provided that Employee is entitled to continue such participation under applicable law and plan terms, the Company shall reimburse the cost of employment equal Employee's and his eligible dependents' participation in such plan pursuant to any amount withheld by rights he (or his dependents) may have under COBRA (the Company "COBRA Reimbursements") until the earlier of (a) twelve (12) months from the date of Employee's Termination of Employment; or (b) the date Employee becomes eligible for similar benefits from a subsequent employer. Notwithstanding any provision in connection with any Section 83(b) election made by the Executive with respect this Agreement to the New Parent Restricted Shares; PROVIDEDcontrary, FURTHERif, as of Employee's "separation from service" (as defined in Section 409A), Employee is a "specified employee" (within the meaning of Section 409A) and if any payment, reimbursement and/or in-kind benefit that constitutes nonqualified deferred compensation (within the meaning of Section 409A) is deemed to be triggered by Employee's separation from service, then, to the extent one or more exceptions to Section 409A are inapplicable, all payments, reimbursements, and in-kind benefits that constitute nonqualified deferred compensation (within the meaning of Section 409A) to Employee shall not be paid or provided to Employee during the six-month period following Employee's separation from service, and (i) such postponed payment and/or reimbursement/in-kind amounts shall be paid to Employee in the event that such termination is on or a lump sum within thirty (30) days after the date that is six (6) months following Employee's separation from service; and (ii) any amounts payable to Employee after the Closing but prior to the first anniversary expiration of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24such six-month period shall continue to be paid to Employee in equal monthly installments accordance with the product terms of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementAgreement.
Appears in 1 contract
Sources: Employment Agreement (Hickok Inc)
Severance. Subject Upon termination of employment pursuant to Sections 8.2 (other than section 8.2(d) which contains separate severance payment parameters applicable solely in connection with a termination or reduction in duties after a Change of Control) or 8.4 (but in any event not upon termination of this Agreement pursuant to Sections 8.1, 8.3, 8.5 or upon expiration of this Agreement or otherwise), and so long as the Executive executes a release in the Company’s customary form and the Executive has not breached any of his representations or covenants set forth herein, the Company shall pay to Executive, in addition to any other payments the Executive may be entitled to pursuant to the Executive's continued compliance with his obligations under terms of this Agreement, the Company shall have no obligation following:
(a) an amount equal to the Executive other than: greater of (ix) the payment amount of Base Salary due and owing Executive through the expiration of the Executive's earned and unpaid compensation through Term (such amount to be calculated based upon his then current Base Salary), or (y) two (2) times his then applicable Base Salary,
(b) an amount equal to a pro rata portion (based upon the effective portion of the Fiscal Year elapsed to the date of such termination) of the Annual Bonus, payable at the Company’s actual level of financial performance for the applicable fiscal year, but in no event lower than the “Threshold” level, which would have been payable to the Executive had Executive been employed by the Company under this Agreement for the entire Fiscal Year in which such termination occurs; and
(iic) an amount equal to a pro rata portion (based upon the payment portion of the Performance Period elapsed to the date of termination of this Agreement) of the Long Term Incentive Award set forth in Section 2(a)(v) above, which would have been payable to the Executive had Executive been employed by the Company under this Agreement for the entire Performance Period. For purposes of this Section 9(c) and for calculating the number of shares due to Executive hereunder, the Company’s financial performance shall be measured on the date of termination of this Agreement, as if the Performance Cycle had terminated on that date. All amounts payable pursuant to Sections 8.2(d)or 9(a) shall be paid to Executive in a lump sum in cash, not later than ten (10) days after the date of termination of this Agreement. Amounts, if any, payable pursuant to Section 9(b) shall be paid to Executive in a lump sum in cash, simultaneously with the payment, if any, of Annual Bonus to the Company’s other executives, for the applicable Fiscal Year in which this Agreement is terminated. Shares to be issued, if any, pursuant to Section 9(c) shall be issued to Executive not later than ten (10) days after the date of termination of this Agreement.
(d) The aggregate of all payments or benefits made or provided to Executive, in either cash and/or equity compensation, provided, if applicable, under Sections 8 and 9 of this Agreement and under all other plans and programs of the Company shall be referred to as the “Aggregate Payment”.
(e) In the event that the Aggregate Payment is determined to constitute a Parachute Payment, as such term is defined in Section 280G(b)(2) of the Code and an Excise Tax is thereafter applicable, then if reducing the Aggregate Payment to an amount which is one dollar less than the amount of the Aggregate Payment which could be made to the Executive before any deferred bonusportion of the Aggregate Payment becomes subject to Excise Tax, results in the net after-tax amount to be received by the Executive being greater than the net after-tax amount to be received by the Executive prior to such reduction when taking into account the Excise Tax which would be paid by the Executive, then the Aggregate Payment shall be reduced (first by reducing cash payments and then by reducing any payments or benefits under any other Plan, arrangement or agreement) to an amount which is one dollar less than the amount of the Aggregate Payment which could be made to the Executive before any portion of the Aggregate Payment become subject to Excise Tax.
(f) Any calculations and/or determinations which are required to be made in order to give effect to the provisions of Section 409A 9(d) above shall be made by the Company’s independent auditor or, if such independent auditor is unwilling or unable to serve in this capacity, such other nationally recognized accounting or tax firm selected by the Company with the consent of the Code; (iii) person serving as the payment Chief Executive Officer of an amount equal the Company immediately prior to the sum Change of Control, which consent shall not be unreasonably withheld.
(g) Upon termination of employment pursuant to Sections 8.2 or 8.4, then the Executive's annual Base Salary plus ’s unvested equity issued by the Executive's Maximum Bonus Amount (as in effect as of Company to Executive prior to the date of termination), 50% shall continue to vest for a period of which shall be paid to one (1) year from the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementdate.
Appears in 1 contract
Severance. Subject (A) In the event that (a) your employment terminates pursuant to Section 7C or (b) after the expiration of the Employment Period, if your employment continues as provided in Section 1, either you give notice of termination of employment to the Executive's continued compliance with his obligations under this Agreement, Company or the Company shall have no obligation to the Executive gives you notice of termination of employment other than: than for cause (as defined above) or disability, and provided that (i) within thirty (30) days prior to the payment expiration of the Executive's earned Employment Period Nabi had not offered to renew this Agreement on terms no less favorable to you than the terms then in effect, and unpaid (ii) within ninety (90) days following the expiration of the Employment Period ▇▇▇▇ has not tendered to you a new employment agreement executed on behalf of ▇▇▇▇ and containing such no less favorable terms, you shall receive the benefits set forth in Sections 8B, 8C and 8D. In the event your employment terminates pursuant to Section 7B (a), or as a result of your death, you shall receive the benefit set forth in Section 8D. Notwithstanding the foregoing provisions of this Section 8A, in the event your employment terminates under circumstances that entitle you to receive compensation through and other benefits pursuant to the April 1, 2004 Change of Control Severance Agreement between you and Nabi (the “Change of Control Severance Agreement”), you shall not receive the benefits set forth in Section 8B, 8C and 8D.
(B) Based on the effective date of such termination; , ▇▇▇▇ will continue to pay you your base salary as of the effective date of such termination (ii“Severance Pay”) and maintain in effect such fringe benefits (including auto allowance) as are accorded to other similarly situated employees (to the payment of any deferred bonusextent allowed under, and subject to the provisions limitations of, applicable plans) for eighteen (18) months. Severance Pay shall be made in equal bi-weekly installments.
(C) The Company shall pay for executive outplacement services up to $18,000 by an organization selected by ▇▇▇▇ in its sole discretion.
(D) All of your non-vested stock options, restricted stock or similar incentive equity instruments (“Options”) shall immediately vest. All such “Options” shall be exercisable for twelve (12) months past your termination date, except that no “Options” shall be exercisable beyond the original “Option” expiration date. To the extent the terms of any “Options” are inconsistent with this Agreement, the terms of this Agreement shall control.
(E) All payments or benefits to you under this Section 409A 8 (other than payments or benefits already accrued and otherwise due under ▇▇▇▇’s employee benefit plans or programs, or as a result of the Code; your death) will not be given unless you execute (iiiand do not rescind) the payment a written employment termination agreement in a form prescribed by ▇▇▇▇, containing terms consistent with this Agreement as well as a general release of an amount equal all claims against ▇▇▇▇ and related parties with respect to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of all matters occurring prior to or on the date of termination)the release, 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of including (but not limited to) employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law matters or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company matters in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of your termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.
Appears in 1 contract
Severance. Subject to In consideration for the Executive's continued compliance with his obligations under promises made by Executive in this Agreement, the Company shall have no obligation provide Executive: [
(1) monthly reimbursement of Executive’s COBRA health insurance premium costs for him and his eligible dependents at the coverage levels in place as of the Separation Date, assuming he is eligible for and timely and properly applies for the benefit, until the earlier to occur of twelve (12) months from the Separation Date and the date upon which Executive becomes eligible to receive coverage under a group health plan sponsored by another employer; (2) immediate one hundred percent (100%) vesting of any phantom units previously awarded to the Executive other than: under the Partnership’s Long-Term Incentive Plan which are not yet vested on the Separation Date, not to exceed 13,768 phantom units, which the Compensation Committee of the Board of Directors of the Company has heretofore approved to be paid to Executive in accordance with the Transition Agreement and in accordance with the terms of the Partnership’s Long-Term Incentive Plan; (3) free and clear title to Executive’s Company vehicle and a cash payment to Executive in an amount that will fully offset the income taxes incurred by Executive through the transfer of ownership of the vehicle to him; (4) compensation for any fully-vested phantom units in the Calumet GP, LLC Executive Deferred Compensation Plan in accordance with the terms of that plan; and (5) $_____________________________________________________] [sum of (i) the continued payment of his salary (which is based on an annual base salary of Three Hundred Fifty-Three Thousand Sixty-Seven Dollars and Zero Cents ($353,067.00)) on a semimonthly basis until the Executive's earned earlier of _______ and unpaid compensation through the effective date Project End Date (as that term is defined in the Employment and Transition Agreement between Company and Executive dated April 17, 2017), Initial if such salary continuance is applicable pursuant to the terms of such termination; the Transition Agreement, and (ii) the payment of any deferred bonus, subject to the provisions of Section 409A amount of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination)SAP Bonus, 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (andor any part thereof, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued such SAP Bonus has been earned under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal Transition Agreement]. These payments to the product of (x) the multiple set forth and on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares ’s behalf shall be returned jointly referred to herein as the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement“Severance Package.”
Appears in 1 contract
Sources: Employment Agreement (Calumet Specialty Products Partners, L.P.)
Severance. Subject to the Executive's continued compliance with his obligations under this Agreement’s execution of and the effectiveness of a General Release in a form substantially the same as the release attached as Exhibit A hereto (the “Release”) within twenty-eight (28) days of the Date of Termination (if after a Change in Control), or within twenty-eight (28) days of the Change in Control (if during a Potential Change in Control Period), if a Terminating Event occurs within eighteen (18) months following a Change in Control (or during a Potential Change in Control Period provided that a Change in Control takes place within 18 months thereafter) and during the Term, then the Company shall have no obligation to pay the Executive other than: the amounts, and provide the Executive the benefits, described in this Section 6.1 (i) “Severance Payments”), in addition to any payments and benefits to which the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject Executive is entitled under Section 5. Subject to the provisions of Section 409A of the Code; 6.4 (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination“Section 409A”), 50% the amounts set forth in subsections (A) and (B) of which this Section 6.1 shall be paid to in one lump sum payment no later than the Executive upon the first business thirtieth (30th) day following the six month anniversary Date of Termination provided, however, that if the Terminating Event is during a Potential Change in Control Period, or after the Change in Control but the Change in Control does not constitute a change in the ownership or effective control of the date Company, or in the ownership of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment a substantial portion of the New Parent Restricted Shares (andassets of the Company, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to within the provisions meaning of Section 409A of the Code, immediate payout and the Executive otherwise has a contractual right to severance that is considered deferred compensation within the meaning of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms Section 409A of the Company's benefit plans (excluding severance plans); PROVIDEDCode, that such amount shall be paid in the event that such termination is within six months following the Closingsame form (e.g., (Alump sum, salary continuation, etc.) in lieu of the benefit as set forth in clause such contract beginning with the first payroll date that occurs thirty (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x30) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary Date of the Closing, Termination. Except as described above or in lieu of the benefit set forth in clause Section 9.1 (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a“Successors; Binding Agreement”), the Executive shall not be eligible entitled to benefits pursuant to this Section 6.1 unless a Change in Control shall have occurred during the Term.
(A) The Company shall pay to the Executive a lump sum severance payment, in cash, equal to one and one half (1.5) times the sum of (i) the Base Salary, and (ii) the Target Bonus Amount in respect of the fiscal year in which the Date of Termination occurs (without giving effect to any event or circumstance constituting Good Reason), assuming for this purpose attainment of 100% of any applicable target;
(B) Either:
(i) In the case of Executives who do not receive sales commission-based variable compensation, (a) an amount equal to the Executive’s bonus for any fiscal year ended prior to the year of termination, to the extent such bonus has not already been paid (whether due to deferral or otherwise), calculated in accordance with the associated bonus plan (provided that any portion of such bonus that is discretionary shall be paid using the assumption that Executive has satisfied all individual performance requirements necessary for full payment of any discretionary portion of such bonus), plus (b) an amount equal to the Executive’s Target Bonus Amount multiplied by a fraction, the numerator of which is the number of days elapsed between the beginning of such fiscal year and the date of termination reduced by any periods (expressed in days) for which amounts under such incentive bonus arrangement have already been paid in such year, and the denominator of which is 365; or Change in Control Severance Agreement
(ii) In the case of Executives who receive sales commission-based variable compensation, an amount equal to (a) the Executive’s sales commission-based variable compensation for any fiscal year ended prior to the year of termination, to the extent such sales commission-based variable compensation has not already been paid (whether due to deferral or otherwise), plus (b) the target amount of sales commission-based variable compensation that could be earned by such Executive during the current fiscal year multiplied times a fraction, the numerator of which is the number of days elapsed between the beginning of such fiscal year and the date of termination and the denominator of which is 365, reduced by the amount by which such incentive sales commission-based variable compensation is already payable or has already been paid in respect of such fiscal year;
(C) To the extent that the Company’s Annual Executive Bonus Plan or any successor plan in existence on the date the Executive’s employment is terminated calls for the potential payment of an award attributable to “over-achievement” performance goals (i.e., requiring the achievement of goals that exceed or are in addition to the goals required for the Executive to receive severance the target annual bonus) and the Company pays over-achievement bonuses to executives for the fiscal year in which Executive’s employment terminates, the Company shall pay to Executive a lump sum amount equal to the over-achievement bonus for such fiscal year that would have been paid to Executive had he or she been employed by the Company on the date that such over-achievement bonuses are first paid to other participants in such bonus plan. Said amount shall be paid to Executive not later than the date that such over-achievement bonuses are first paid to other participants in said bonus plan;
(D) For the eighteen (18) month period immediately following the Date of Termination, the Company shall arrange to provide the Executive and his dependents health and dental insurance benefits under any other Company plancomparable in all material respects to those in effect immediately prior to the Change in Control, policyon the same terms and conditions as though the Executive had remained an active employee. The cost of providing the benefits set forth in this Section 6.1(D) shall be in addition to (and shall not reduce) the Severance Payments; provided, that if the plan or program in question, or agreementapplicable law, provides for a longer period of coverage following termination of employment, then the Executive shall receive this additional period of coverage pursuant to the terms and conditions as set forth in the plan or program or as prescribed by applicable law. Notwithstanding the foregoing provisions of this subsection, if the Executive becomes reemployed by another employer and is eligible (together with his or her dependents) for medical or dental insurance coverage that is substantially equivalent (as to extent of coverage and Executive’s cost) to the coverage of the same type that he or she (and his or her dependents) were entitled to receive under this subsection, the Company’s obligation to the Executive and his or her dependents under this subsection shall cease with respect to that type of coverage; and
(E) The Company shall pay the cost of providing the Executive with outplacement services up to a maximum of $45,000, provided that (i) the Executive begins to utilize such services within six months following the Date of Termination and completes the Change in Control Severance Agreement utilization of such services no later than the last day of the calendar year following the calendar year that contains the Date of Termination, and (ii) such services are provided by an outplacement provider approved by the Company (which approval shall not be unreasonably withheld, delayed or conditioned). Such payment shall be made by the Company directly to the service provider promptly following the provision of such services and the presentation to the Company of documentation of the provision of such services.
Appears in 1 contract
Severance. Subject to the Executive's continued compliance with his obligations under this Agreement’s execution of and the effectiveness of a General Release in a form identical to or substantially the same as the release attached as Exhibit A hereto (the “Release”) within twenty-eight (28) days of the Date of Termination, if a Terminating Event occurs within twelve (12) months following a Change in Control (or during a Potential Change in Control Period) and during the Term, then the Company shall pay the Executive the amounts, and provide the Executive the benefits, described in this Section 6.1 (“Severance Payments”), in addition to any payments and benefits to which the Executive is entitled under Section 5. Except as described above or in Section 9.1, the Executive shall not be entitled to benefits pursuant to this Section 6.1 unless a Change in Control shall have no obligation occurred during the Term.
(A) The Company shall pay to the Executive other than: a lump sum severance payment, in cash, equal to one (1) times the sum of (i) the payment of the Executive's earned Base Salary, and unpaid compensation through the effective date of such termination; (ii) the payment Target Bonus Amount in respect of the fiscal year in which the Date of Termination occurs (without giving effect to any event or circumstance constituting Good Reason), assuming for this purpose attainment of 100% of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an applicable target. Such amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day in one lump sum payment no later than thirty (30) days following the six month anniversary Date of Termination; provided, however, that if the Terminating Event is during a Potential Change in Control Period, or after the Change in Control but the Change in Control does not constitute a change in the ownership or effective control of the date Company, or in the ownership of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment a substantial portion of the New Parent Restricted Shares (andassets of the Company, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to within the provisions meaning of Section 409A of the Code, immediate payout and the Executive otherwise has a contractual right to severance that is considered deferred compensation within the meaning of Section 409A of the Code, such amount shall be paid in the same form (e.g., lump sum, salary continuation, etc.) as set forth in such contract beginning with the first payroll date that occurs thirty (30) days after the Date of Termination.
(B) For the eighteen (18) month period immediately following the Date of Termination, the Company shall arrange to provide the Executive and his dependents health and dental insurance benefits previously accrued under on the Company's Supplemental same terms and conditions as though the Executive Retirement Plan had remained an active employee. The cost of providing the benefits set forth in this Section 6.1(B) shall be in addition to (and (vishall not reduce) executive outplacement benefits, except as the Severance Payments. Benefits otherwise required by law or receivable by the terms Executive pursuant to this Section 6.1(B) shall be reduced to the extent the Executive becomes eligible to receive comparable benefits from a new employer or pursuant to a government-sponsored health insurance or health care program.
(C) The Company shall pay the cost of providing the Company's benefit plans Executive with outplacement services up to a maximum of $45,000, provided that (excluding severance plans); PROVIDED, that in i) the event that Executive begins to utilize such termination is services within six months following the Closing, (A) in lieu Date of Termination and completes the utilization of such services no later than the last day of the benefit set forth in clause calendar year following the calendar year that contains the Date of Termination, and (iii), ii) such services are provided by an outplacement provider approved by the Company (which approval shall pay not be unreasonably withheld, delayed or conditioned). Such payment shall be made by the Executive a lump sum cash amount equal Company directly to the product service provider promptly following the provision of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary such services and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned presentation to the Company in exchange for a refund of documentation of the full purchase price within 30 days following provision of such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementservices.
Appears in 1 contract
Sources: Change in Control Severance Agreement (Mercury Computer Systems Inc)
Severance. Subject to the Executive's continued compliance with his obligations under terms and conditions of this Agreement, the Company agrees to pay to the Executive:
(a) all accrued but unpaid Base Salary through the Termination Date (which shall have no obligation be paid on the first ordinary payroll date following the Termination Date), (ii) any unpaid or unreimbursed reasonable out-of-pocket expenses incurred by the Executive in connection with the business of the Company in accordance with Company policy to the extent incurred prior to the Termination Date (which shall be paid following Executive submission of such receipts evidencing such expenses in accordance with the Company’s expense reimbursement policies), (iii) any other amounts required to be paid pursuant to applicable law, if any, and (iv) accrued and/or vested benefits under any plan or agreement covering the Executive which shall be paid in accordance with, and governed by, the terms of such plan or agreement;
(b) a lump sum cash payment in an amount equal to $836,400, which is equal to twelve (12) months of the Executive’s Base Salary as of the Termination Date, which shall be paid on the next regular payroll date immediately following the sixtieth (60th) day after the Termination Date;
(c) an amount equal to $836,400, which is equal to twelve (12) months of the Executive’s Base Salary as of the Termination Date in consideration for the Executive’s compliance with the Restrictive Covenants set forth in Section 9 of the Employment Agreement, which will be paid in substantially equal installments in accordance with the payroll practices of the Company during the twelve (12) month period commencing on the Termination Date;
(d) a lump sum cash payment of $42,313, which shall be paid on the next regular payroll date immediately following the sixtieth (60th) day after the Termination Date, in consideration of the Company obligations pursuant to Section 7(d)(v) of the Employment Agreement (the amounts described in Sections 3(b), 3(c) and 3(d), collectively, the “Severance Payments”); and
(e) all outstanding equity-based compensation awards granted to the Executive other than: under the Long-Term Equity-Based Incentive Plan (ithe “Equity Plan”) of TPI (as defined in the payment Employment Agreement) shall continue to vest and remain exercisable (to the extent applicable) following the Termination Date as if Executive had remained employed by the Company, in accordance with the terms and conditions of the Executive's earned applicable Equity Plan and unpaid compensation through the effective individual award agreements evidencing such grants (including, for the avoidance of doubt, any performance vesting conditions and any original stated expiration date of such termination; options) (ii) the payment of any deferred bonus, “Equity Benefits”). The Company’s obligation to pay the Executive the Severance Payments and provide the Equity Benefits shall be subject to the provisions Executive’s execution and non-revocation of the Release of Claims attached as Exhibit A to the Employment Agreement within sixty (60) days following the Termination Date (the date on which the Release of Claims becomes non-revocable, the “Release Effective Date”) and the Executive’s continued compliance with the Restrictive Covenants (as defined below). Further, to the extent that any portion of the Severance Payments constitutes “nonqualified deferred compensation” within the meaning of Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code; ”) and all applicable regulations and guidance thereunder (iii) the “Section 409A”), any payment of an any amount equal or provision of any benefit otherwise scheduled to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately occur prior to the Closing), sixtieth (B60th) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days day following the date of the Executive’s termination of employment equal to any amount withheld by hereunder, but for the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event condition that the Executive is eligible to receive execute the severance benefits provided for by this Section 4.4(a)Release of Claims as set forth herein, the Executive shall not be eligible made until the first regularly scheduled payroll date following such sixtieth (60th) day (subject to receive severance benefits any additional delay as may be required under Section 7(a) of this Agreement), after which any other Company plan, policy, or agreementremaining Severance Payments shall thereafter be provided to the Executive according to the applicable schedule set forth herein.
Appears in 1 contract
Sources: Separation and General Release Agreement (Teva Pharmaceutical Industries LTD)
Severance. Subject to (a) Involuntary Termination other than for Cause, Death or Disability. Except as provided in the following sentence and Section 5(b), if the Company terminates Executive's continued compliance employment with his obligations under this Agreement, the Company shall have no obligation to the without her consent and for a reason other than "Cause" (as defined below), Executive other than: becoming "Disabled" (as defined below) or Executive's death, then promptly following such termination of employment, Executive will (i) the receive a lump-sum payment equal to 100% of the Executive's earned Base Salary and unpaid compensation through the effective date of such termination; target bonus, (ii) the payment of receive all accrued vacation, expense reimbursements and any deferred bonus, subject other benefits due to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of through the date of termination of employment in accordance with the Company's then existing employee benefit plans and policies, (iii) be entitled to an additional twelve (12) months vesting of any Company stock options (whether granted to Executive on, before or after the remainder date of which shall be paid to the Executive in equal installments each month thereafter for six months; this Agreement), (iv) treatment have four (4) years following termination of employment to exercise her vested Company stock options (whether granted on, before or after the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(bdate of this Agreement), (c) and (d); (v) subject to the provisions be paid her then existing Base Salary for a period of Section 409A six (6) months following her termination of the Codeemployment, immediate payout (vi) be 50% of benefits previously accrued her target annual bonus not later than six (6) months following her termination of employment, (vii) receive Company-paid coverage for a period of eighteen (18) months for himself and her eligible dependents under the Company's Supplemental Executive Retirement Plan and health benefit plans (vior, at the Company's option, coverage under a separate plan), providing benefits that are no less favorable than those provided under the Company's plans immediately prior to her termination of employment, (viii) executive outplacement benefits, except receive such other compensation or benefits from the Company as otherwise may be required by law or by the terms (for example, under Section 4980B of the CompanyCode). If the Company terminates Executive's benefit plans employment with the Company without her consent within eighteen (excluding severance plans); PROVIDED18) months after a "Change of Control" (as defined below) and for a reason other than Cause, that in the event that then promptly following such termination is within six months following of employment, Executive will (i) receive a lump-sum payment equal to 100% of the ClosingBase Salary and target bonus, (Aii) in lieu of the benefit set forth in clause (iii)receive all accrued vacation, the Company shall pay the expense reimbursements and any other benefits due to Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following through the date of termination of employment equal in accordance with the Company's then existing employee benefit plans and policies, (iii) be entitled to immediate 100% vesting of any amount withheld by the Company in connection with any Section 83(b) election made by the stock options granted to Executive with respect (whether granted to the New Parent Restricted Shares; PROVIDEDExecutive on, FURTHER, that in the event that such termination is on before or after the date that is six months of this Agreement), (iv) have four (4) years following termination of employment to exercise her vested Company stock options (whether granted on, before or after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of terminationthis Agreement), (v) be paid her then existing Base Salary and target bonus for a period of one (1) year following her termination of employment, (vi) receive Company-paid coverage for a period of two (2) years for himself and her eligible dependents under the Company's health benefit plans (or, at the Company's option, coverage under a separate plan), providing benefits that are no less favorable than those provided under the Company's plans immediately prior to her termination of employment, (vii) receive such other compensation or benefits from the Company as may be required by law (for example, under Section 4980B of the Code). In the event that the Executive is eligible All payments and benefits will be subject to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementapplicable withholding.
Appears in 1 contract
Sources: Employment Agreement (Atg Group Inc)
Severance. Subject In lieu of any severance pay or severance benefits otherwise payable to the Executive's continued compliance with his obligations Employee under this Agreementany plan, policy, program or arrangement of the Company or its subsidiaries, the following shall apply:
(a) If there is a Termination (as herein defined) of the Employee’s employment with the Company shall have no obligation at any time prior to the Executive other than: a “Change of Control” (as defined herein) without “Cause” (as defined herein), and (i) (X) such Termination occurs before the second anniversary of Employee’s employment with the Company, the Employee shall be entitled to receive a lump-sum severance payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum fifty percent (50%) of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's his then current annual base salary and the Executive's target bonus amount term of his non-compete pursuant to Section 5 of this Agreement shall be six (each, as in effect as of immediately prior to the Closing)6) months, (BY) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or Termination occurs after the date that is six months after the Closing second anniversary but prior to the first fifth anniversary of Employee’s employment with the ClosingCompany, in lieu the Employee shall be entitled to receive a lump-sum severance payment equal to seventy-five percent (75%) of his then current annual base salary and the term of his non-compete pursuant to Section 5 of this Agreement shall be nine (9) months, or (Z) such Termination occurs after the fifth anniversary of Employee’s employment with the Company, the Employee shall be entitled to receive a lump-sum severance payment equal to one hundred percent (100%) of his then current annual base salary and the term of his non-compete pursuant to Section 5 of this Agreement shall be twelve (12) months and (ii) the Employee shall also be entitled to accelerated stock option vesting, effective upon such Termination, with respect to twenty-five percent (25%) of the benefit set forth in clause shares of Company common stock underlying each of the Employee’s then unvested outstanding stock options, restricted stock and other outstanding equity-based awards.
(b) If there is a Termination of the Employee’s Employment with the Company following a Change of Control, the Employee shall be entitled to receive a lump-sum severance payment equal to (i) one hundred percent (100%) of his then current annual salary plus (ii) the amount of his then current bonus target, and (iii) accelerated vesting with respect to one-hundred percent (100%) of the shares of Company common stock underlying each of the Employee’s then unvested outstanding stock options, restricted stock and other outstanding equity-based awards.
(c) The Employee, such Employee’s spouse and eligible dependents will continue to be provided with medical and dental benefits for the benefits set forth in clause twelve (A) in 12)-month period following such Employee’s Termination on the immediately preceding provisosame basis as provided to active employees of the Company. Following such twelve (12)-month period, the Company shall pay the Executive over a 24-month period Employee, such Employee’s spouse and eligible dependents will begin eligibility for continuation of medical and dental coverage in equal monthly installments the product of (x) two and (y) the sum accordance with Section 4980B of the Executive's annual Base Salary plus Internal Revenue Code of 1986, as amended (the Executive's Maximum Bonus Amount (as in effect as of the date of termination“Code”). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.
Appears in 1 contract
Severance. Subject (a) If the Company terminates ▇▇▇▇▇▇'▇ employment other than for Cause pursuant to the Executive's continued compliance with Section 1.3(d), and other than by reason of death or Disability pursuant to Section 3.7, or if ▇▇▇▇▇▇ resigns within ten (10) days following a material diminution in his title within six (6) months following a Change in Control then subject to ▇▇▇▇▇▇'▇ continuing obligations under this AgreementSection 2.4 and Section 2.5 and in consideration of the execution, delivery and effectiveness of a general release of claims in a standard form approved by the Company, the Company shall have no obligation pay to ▇▇▇▇▇▇ a lump sum of two (2) times ▇▇▇▇▇▇'▇ current Base Salary in cash within fifteen (15) days after the Executive other than: date of termination (i) or, if later, upon the payment effectiveness of the Executive's earned general release following any applicable revocation period) and shall vest one hundred percent (100%) of ▇▇▇▇▇▇'▇ then remaining unvested portion of the options granted in accordance with this Agreement, in addition to other amounts payable from qualified plans, nonqualified retirement plans, and deferred compensation plans, which amounts shall be paid in accordance with the terms of such plans.
(b) If ▇▇▇▇▇▇ resigns within ten (10) days following a material diminution in his title by the Board of Directors of the Company, other than in connection with a Change in Control or a termination of his employment for Cause or as a result of death or Disability pursuant to Section 3.7, then subject to ▇▇▇▇▇▇'▇ continuing obligations under Section 2.4 and Section 2.5 and in consideration of the execution, delivery and effectiveness of a general release of claims in a standard form approved by the Company, the Company shall vest fifty percent (50%) of ▇▇▇▇▇▇'▇ then remaining unvested portion of the options granted in accordance with this Agreement, and ▇▇▇▇▇▇'▇ entitlement to other amounts payable from qualified plans, nonqualified retirement plans, and deferred compensation plans shall be determined in accordance with the terms of such plans.
(c) If the Company terminates ▇▇▇▇▇▇'▇ employment for Cause, or if ▇▇▇▇▇▇ resigns (other than pursuant to Section 3.8(b) above), then ▇▇▇▇▇▇ shall only be entitled to be paid his accrued, unpaid compensation Base Salary through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of his termination of employment and the remainder of which his entitlement to other amounts payable from qualified plans, nonqualified retirement plans, and deferred compensation plans shall be paid to the Executive determined in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by accordance with the terms of the Company's benefit plans such plans.
(excluding d) No severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares benefits shall be returned provided pursuant to the Company in exchange Section 3.8(a) or Section 3.8(b) if ▇▇▇▇▇▇'▇ employment is terminated by reason of expiration or non-renewal of this Agreement for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementreason.
Appears in 1 contract
Severance. Subject (a) If the Term is terminated by the Company for Cause,
(i) the Company and the Partnership will pay to the Executive an aggregate amount equal to the Executive's continued compliance with his obligations under this Agreementaccrued and unpaid base salary through the date of such termination;
(ii) all unvested options, restricted shares, and POPs will terminate immediately; and
(iii) any vested options issued pursuant to the Company shall have no obligation to Company's Incentive Plan and held by the Executive at termination, will expire ninety (90) days after the termination date.
(b) If the Term is terminated by the Executive other than: than because of death, Disability or for Good Reason,
(i) the Company and the Partnership will pay to the Executive an aggregate amount equal to the Executive's accrued and unpaid base salary through the date of such termination;
(ii) all unvested options and restricted shares terminate immediately;
(iii) any vested options issued pursuant to the Company's Incentive Plan and held by the Executive at termination, will expire ninety (90) days after the termination date; and
(iv) all POPs granted through the date of such termination shall immediately vest and convert, on a one-for-one basis, into common operating partnership units ("Common OP Units") of the Partnership and become free and clear of all contractual restrictions.
(c) If the Term is terminated upon the Executive's death or Disability,
(i) the Company and the Partnership will pay to the Executive's estate or the Executive, as the case may be, a lump sum payment equal to the Executive's base salary through the termination date, plus a pro rata portion of the Executive's earned and unpaid compensation through bonus for the effective date of such termination; fiscal year in which the termination occurred;
(ii) the payment Company will make payments for one (1) year of any deferred bonus, subject all compensation otherwise payable to the provisions of Section 409A of the Code; Executive pursuant to this Agreement, including, but not limited to, base salary, bonus and welfare benefits;
(iii) the payment of an amount equal to the sum all of the Executive's annual Base Salary plus unvested stock options will immediately vest and such options, along with those previously vested and unexercised, will become exercisable for a period of one (1) year thereafter;
(iv) all of the Executive's Maximum Bonus Amount unvested restricted stock will immediately vest and all of the restricted stock of the Company held by the Executive shall become free from all contractual restrictions; and
(as in effect as v) all POPs to be granted to Executive on May 1 of 2002, 2003 or 2004 (assuming 165,000 POPs were granted on each date that is subsequent to the date of termination), 50% of ) which shall be paid to the Executive upon the first business day following the six month anniversary of have not yet been granted by the date of termination shall be immediately granted and vested, all of employment the Executive's unvested POPs will immediately vest, and all of the Executive's POPs held at termination (including POPs granted and/or vested pursuant to this Paragraph 6(c)(v)) will be converted, on a one-for-one basis, to Common OP Units of the Partnership and shall become free from all contractual restrictions.
(d) Subject to Section 6(e) hereof, if the Term is terminated by the Company without Cause or other than by reason of Executive's death or Disability, in addition to any other remedies available, or if the Executive terminates the Term for Good Reason,
(i) the Company and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company Partnership shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 sum of (A) the Executive's then annual base salary and (B) the amount of the Executive's bonus for the preceding year, multiplied by (y) the sum greater of (A) two and one-half (2 1/2) and (B) a fraction, the numerator of which is the number of days remaining in the Term (without further extension) and the denominator of which is 365;
(ii) all of the Executive's annual base salary unvested stock options will immediately vest and such options, along with those previously vested and unexercised, will become exercisable for a period of one (1) year thereafter;
(iii) all of the Executive's target bonus amount (each, as in effect as of unvested restricted stock will immediately prior to the Closing), (B) in lieu vest and all of the benefit set forth in clause restricted stock of the Company held by the Executive shall become free from all contractual restrictions;
(iv) with respect all POPs to any Purchased Parent Sharesbe granted to Executive on May 1 of 2002, any Purchased Parent Shares shall be returned 2003 or 2004 (assuming 165,000 POPs were granted on each date that is subsequent to the Company in exchange for a refund date of the full purchase price within 30 days following such return and (Ctermination) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following which have not yet been granted by the date of termination shall be immediately granted and vested, all of employment the Executive's unvested POPs will immediately vest, and all of the Executive's POPs held at termination (including POPs granted and/or vested pursuant to this Paragraph 6(c)(iv)) will be converted, on a one-for-one basis, to Common OP Units of the Partnership and shall become free from all contractual restrictions; and
(v) the Company shall also continue in effect the Executive's health benefits noted in Section 4(c) hereof or their equivalent for a period equal to any amount withheld by the Company in connection with any Section 83(bgreater of (X) election made by two and one-half (2 1/2) years or the remaining Term, without further extension or (Y) the date on which the Executive with respect to the New Parent Restricted Sharesobtains health insurance coverage from a subsequent employer; PROVIDEDprovided, FURTHERhowever, that in the event that the Executive remains in the employ of MHR following such termination is on or after the date that is six months after the Closing but prior termination, his health insurance benefits shall be provided by MHR pursuant to the first anniversary of MHR Agreement rather than pursuant to this Section (6)(d)(v).
(e) If, within twenty-four (24) months following a Change in Control, the ClosingTerm is terminated by the Executive for Good Reason or by the Company without Cause, in lieu addition to any other rights which the Executive may have under law or otherwise, the Executive shall receive the same payments and benefits provided for under Section 6(d) hereof; provided, that the amount of -------- the benefit set forth multiplier described in clause (iii) and the benefits set forth in clause d)(i)(y)
(A) in of Section 6 hereof shall be increased from two and one-half (2 1/2) times to three and one-half (3 1/2) times.
(f) If at any time the immediately preceding provisoTerm is not extended pursuant to the proviso to Section 1 hereof as a result of the Company giving notice thereunder that it elects to permit the term of this Agreement to expire without extension, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of be deemed to have terminated the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount employment without Cause.
(as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a)g) As used herein, the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.term "Cause" means:
Appears in 1 contract
Sources: Executive Employment Agreement (Meristar Hospitality Corp)
Severance. Subject (a) Except as set forth in Section 2(b) below, in the event that your employment is terminated by Cubist for any reason other than for Cause, then, following, and subject to, receipt by Cubist of your signed and effective release of claims as more fully described in Section 7 below (and your not revoking such release during any applicable revocation period), Cubist shall pay you starting sixty (60) days following the date of your employment termination, an amount equal to twenty-four (24) months of your then-current base salary, with such payment to be made in twelve (12) equal semi-monthly installments, with the first payment retroactive to the Executive's continued compliance with his obligations day immediately following the date your employment terminated.
(b) In the event that, within twenty-four (24) months after a Change of Control, your employment is terminated either (i) by Cubist for any reason other than for Cause or (ii) by you for Good Reason, then, following, and subject to, receipt by Cubist of your signed and effective release of claims as more fully described in Section 7 below (and your not revoking such release during any applicable revocation period), Cubist shall make a one-time, lump-sum payment to you equal to twenty-four (24) months of your then current base salary plus Bonus on the sixtieth (60th) day following the termination of your employment.
(c) In the event that you become entitled to severance payments under Section 2(a) or 2(b) of this Agreement, the Company shall have no obligation subject to the Executive other than: (i) your having timely elected continuation coverage under the federal law known as “COBRA”, (ii) your timely payment of the Executive's earned full monthly COBRA premium for each month during the period described below and unpaid compensation through (iii) such continuation coverage not having terminated, for a period of up to twenty-four (24) months beginning on the effective date first day of the month after the month in which your employment terminates or, if earlier, until such time as your COBRA coverage terminates, Cubist shall pay to you in each such month, within ten (10) days of the first day of such termination; (ii) the payment of any deferred bonusmonth, subject an amount equal to the provisions full monthly COBRA premium for such month minus the active employee monthly cost of such coverage. Notwithstanding any other provision with respect to the timing of payments under this Section 2, in order to comply with the requirements of Section 409A of the Code; Internal Revenue Code of 1986, as amended and the regulations thereunder (iii) “Section 409A”), if any amount or benefit to be paid to you pursuant to this Agreement as a result of your termination of employment constitutes “deferred compensation” within the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount meaning of, and subject to, Section 409A, if you are a “specified employee” (as determined by Cubist in effect its sole discretion and as of defined below) on the date of termination)your termination of employment, 50% of which shall any payment or benefit or portion thereof, if any, that is scheduled to be paid or provided to you hereunder during the Executive upon first six (6) months following the date of your termination of employment shall not be paid until the date which is the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each seventh month thereafter for six months; (iv) treatment following your termination. For purposes of the New Parent Restricted Shares (andpreceding sentence, if applicablethe term “specified employee” means an individual who is determined by Cubist to be a specified employee under Treasury regulation Section 1.409A-1(i). Cubist may, Purchased Parent Shares) as described below but need not, elect in Section 4.4(b)writing, (c) and (d); (v) subject to the provisions of applicable limitations under Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms any of the Company's benefit plans special elective rules prescribed in Section 1.409A-1(i) of the Treasury Regulations for purposes of determining “specified employee” status. Any such written election shall be deemed part of this Agreement. For purposes of the Treasury Regulations under Section 409A, each payment described in this Section shall be treated as a separate payment. For purposes of this Agreement, references to termination of employment, separation from service and similar or correlative terms mean a “separation from service” (excluding severance plans); PROVIDEDas defined at Section 1.409A-1(h) of the Treasury Regulations) from Cubist and from all other corporations and trades or businesses, if any, that in the event that such termination is within six months following the Closing, (Awould be treated as a single “service recipient” with Cubist under Section 1.409A-1(h)(3) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of Treasury Regulations. A termination of employment equal for Good Reason or by Cubist for any reason other than for Cause under this Agreement is intended to any amount withheld by satisfy the Company meaning of “involuntary separation from service” (as defined in connection with any Section 83(b1.409A-1(n) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of terminationTreasury Regulations). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.
Appears in 1 contract
Severance. (a) Subject to the Executivelimitations set forth in Section 13, if the Employee's continued compliance with his employment is terminated by the Subsidiary without Substantial Cause (including, without limitation, upon termination of this Agreement following notice thereof by the Company or the Subsidiary pursuant to Section 3 hereof) or by the Employee for Good Reason, then, without further liability of the Subsidiary or the Company, except for their obligations pursuant to this Section 10(a) and their obligations to pay or provide any salary and expenses accrued to the termination date, any unpaid bonus referred to in Section 4(b) hereof, any Closing Bonus (whether payable before or after such termination of employment) pursuant to Section 4(c) hereof, and such rights and benefits of participation of or in respect of the Employee under this Agreementemployee benefit plans, programs and arrangements of the Company, the Company shall have no obligation to Subsidiary and their Affiliates, in accordance with the Executive other than: terms and provisions of such plans, programs and arrangements, (i) the payment of Employee shall be entitled to severance compensation for the Executive's earned and unpaid compensation through the effective date of Severance Period (as hereinafter defined) following any such termination, payable in equal monthly installments, subject to withholding and other applicable taxes, at an annual rate equal to the Employee's base salary for the year of termination, as such annual rate is increased from year to year in accordance with Section 4(a) hereof; (ii) as additional severance compensation following any such termination, the payment of any deferred bonus, subject Employee shall be entitled to the provisions bonus compensation referred to in Section 4(b) hereof for the Severance Period, payable as and when ordinarily determined for the applicable year, with a bonus not less than seventy-five percent (75%) of Section 409A his rate of annual base salary in effect for the Codeyear of termination; (iii) the Employee and the Employee's spouse and Dependent Children (as hereinafter defined) shall be entitled to medical and dental benefits as provided immediately prior to the date of termination which shall continue for the Severance Period (which benefits shall be terminated sooner to the extent provided by another employer and shall be subject to coordination with Medicare payments in accordance with the terms of the applicable benefit plan); (iv) the Employee shall be entitled to receive, during the Severance Period, the benefits described in Section 4(d) hereof and the automobile rights and perquisites described in Section 4(e) hereof, provided, however, if any such benefit is not available to the Employee under applicable law or the terms of any plan, program or arrangement because he is not an employee, or otherwise, the Subsidiary shall pay the Employee, within ten (10) days following such termination, a lump-sum cash payment of an amount equal to the sum value of such benefits, and the types, terms and conditions of the Executive's annual Base Salary plus benefits, rights and perquisites provided to the Executive's Maximum Bonus Amount Employee under clauses (as in effect iii) and (iv) of this Section 10(a) shall be not less favorable than the most favorable of (x) those provided to the Employee as of the date of termination), 50% this third amendment and restatement of which shall be paid this Agreement and (y) those provided to the Executive upon the first business day following the six month anniversary of Employee immediately prior to the date of termination of his employment; and (v) the Employee shall be entitled to reasonable outplacement services selected by the Employee at the Subsidiary's expense. Following expiration of the period within which the Employee is entitled to receive medical and dental benefits pursuant to clause (iii) of the first sentence of this Section 10(a), other than by reason of receiving such benefits from another employer or coordination of such benefits with Medicare payments, the Employee shall be entitled to elect to further continue any such benefits for himself, his spouse and his Dependent Children until the Employee's death so long as the Employee pays the applicable premiums otherwise payable by former employees of the Subsidiary generally for continuation coverage under the applicable plans. If a Change in Control occurs, and (I) at the time of such occurrence, any such severance compensation is being paid or required to be paid in the future to the Employee or (II) such termination of employment occurs following the Change in Control, the aggregate gross severance compensation payable under clauses (i) and (ii) of this Section 10(a) for the remainder of which Severance Period, or the previously unpaid portion thereof, as the case may be, shall be paid by the Company or the Subsidiary in a lump-sum cash payment, as of the date of the Change in Control (in the case of clause (I) immediately preceding) or such termination of employment (in the case of clause (II) immediately preceding) and no provision shall be made for any future increases in base salary pursuant to the Executive Section 4(a) hereof nor shall any discount be taken with regard to payment pursuant to Section 4 because of payment in equal installments each month thereafter for six months; a lump sum rather than as specified in clauses (i) through (iv) treatment of this Section 10(a); provided, however, that, for purposes of determining the New Parent Restricted Shares bonus compensation payable under clause (and, if applicable, Purchased Parent Sharesii) as described below in of this Section 4.4(b10(a), (ca) if the termination occurs during the calendar year in which the Change in Control occurs, the bonus compensation with respect to such calendar year shall be determined in accordance with Section 4(b) hereof, except that the actual EBITDA achieved shall be deemed to be the EBITDA for the portion of the calendar year through the date of the transaction giving rise to the Change in Control, and such EBITDA shall be annualized if necessary by multiplying such EBITDA by a factor of 365 divided by the number of days of the calendar year elapsed as of the date of the transaction giving rise to the Change in Control, and (d); b) in all other cases, the bonus shall be equal to seventy-five percent (v75%) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product greater of (x) the multiple set forth on ATTACHMENT 1 Employee's rate of annual base salary in effect immediately prior to the date of such termination and (y) the sum his rate of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to during the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.calendar year immediately
Appears in 1 contract
Severance. (a) If Executive has a Separation from Service as a result of Executive’s discharge by the Company without Cause or by reason of Executive’s resignation for Good Reason or as a result of Executive’s death or Permanent Disability, in any case within eighteen (18) months following a Change in Control, Executive shall be entitled to receive, in lieu of any severance benefits to which Executive may otherwise be entitled under any severance plan or program of the Company, the benefits provided below, which, with respect to clause (ii) and the last sentence of clause (iii) below, if applicable, will be payable in a lump sum within ten (10) days following the effective date of the Release (as defined below):
(i) The Company shall pay to Executive (or his or her estate, if applicable) his or her fully earned but unpaid base salary, when due, through the date of Executive’s Separation from Service at the rate then in effect, plus all other benefits, if any, under any Company group retirement plan, nonqualified deferred compensation plan, equity award plan or agreement (other than any such plan or agreement pertaining to Stock Awards whose treatment is prescribed by Section 3(a)(iii) below), health benefits plan or other Company group benefit plan to which Executive (or his or her estate, if applicable) may be entitled pursuant to the terms of such plans or agreements at the time of Executive’s Separation from Service;
(ii) Subject to Section 3(c) and, other than in the case of Executive's ’s death, Executive’s continued compliance with his obligations Section 4, Executive shall be entitled to receive severance pay in an amount equal to one hundred percent (100%) multiplied by Executive’s annual base salary as in effect immediately prior to the date of Executive’s Separation from Service as well as payment of any amount equal to any annual bonus to which Executive would have been entitled to receive as of the date of Executive’s Separation from Service based on the Company’s and/or Executive’s performance through such date, to be determined by the Board or the Compensation Committee thereof in good faith in accordance with the terms of the applicable bonus program (for the avoidance of doubt, any bonus or part thereof that relates to goals or objectives covering a full calendar year will not be paid unless Executive’s Separation from Service occurs after the end of such calendar year);
(iii) Subject to Section 3(c) and, other than in the case of Executive’s death, Executive’s continued compliance with Section 4, for the period beginning on the date of Executive’s Separation from Service and ending on the date which is twelve (12) full months following the date of Executive’s Separation from Service (or, if earlier, the date on which the applicable continuation period under this Agreementthe Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) expires) (the “COBRA Coverage Period”), the Company shall have no obligation arrange to provide Executive and/or his or her eligible dependents who were covered under the Company’s health insurance plans as of the date of Executive’s Separation from Service with health (including medical and dental) insurance benefits substantially similar to those provided to Executive and his or her dependents immediately prior to the Executive other than: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; Separation from Service. If the Company is not reasonably able to continue health insurance benefits coverage under the Company’s insurance plans, the Company shall provide substantially equivalent coverage under other third-party insurance sources. If any of the Company’s health benefits are self-funded as of the date of Executive’s Separation from Service, or if the Company cannot provide the foregoing benefits in a manner that is exempt from or otherwise compliant with applicable law (ii) the payment of any deferred bonusincluding, subject to the provisions of without limitation, Section 409A of the Code; Code and Section 2716 of the Public Health Service Act), instead of providing continued health insurance benefits as set forth above, the Company shall instead pay to Executive (iiior his or her estate, if applicable) the payment of an amount equal to the sum of monthly premium payment for Executive and/or his or her eligible dependents who were covered under the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect Company’s health plans as of the date of termination), 50% of which shall be paid Executive’s Separation from Service (calculated by reference to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect premium as of the date of terminationSeparation from Service) as currently taxable compensation in substantially equal monthly installments over the COBRA Coverage Period (or the remaining portion thereof);
(iv) Subject to Section 3(c) and, other than in the case of Executive’s death, Executive’s continued compliance with Section 4, the vesting of each of Executive’s Stock Awards shall be accelerated in full (provided that any Stock Awards that vest upon achievement of any performance-based goals or targets shall be accelerated as to the “target” number of shares subject to such Stock Awards) effective as of the date of Executive’s Separation from Service. In Nothing in this Section 3(a)(iv) shall be construed to limit any more favorable vesting applicable to Executive’s Stock Awards in the event that Company’s equity plan(s) and/or the Executive is eligible stock award agreements under which the Stock Awards were granted. The foregoing provisions are hereby deemed to receive be a part of each Stock Award and to supersede any less favorable provision in any agreement or plan regarding such Stock Award; and
(v) Notwithstanding any other provision of this Agreement to the contrary, any severance benefits provided for payable to Executive under this Agreement shall be reduced by this Section 4.4(a), the Executive shall not be eligible to receive any severance benefits payable by the Company or an affiliate of the Company to such individual under any other Company policy, plan, policyprogram, agreement or agreementarrangement, including, without limitation, any severance agreement between such individual and any entity.
Appears in 1 contract
Sources: Change in Control Severance Agreement (Tessera Technologies Inc)
Severance. (a) Subject to the Executivelimitations set forth in Section 13, if the Employee's continued compliance with his employment is terminated by the Subsidiary without Substantial Cause (including, without limitation, upon termination of this Agreement following notice thereof by the Company or the Subsidiary pursuant to Section 3 hereof) or by the Employee for Good Reason, then, without further liability of the Subsidiary or the Company, except for their obligations pursuant to this Section 10(a) and their obligations to pay or provide any salary and expenses accrued to the termination date, any unpaid bonus referred to in Section 4(b) hereof, any Closing Bonus (whether payable before or after such termination of employment) pursuant to Section 4(c) hereof, and such rights and benefits of participation of or in respect of the Employee under this Agreementemployee benefit plans, programs and arrangements of the Company, the Company shall have no obligation to Subsidiary and their Affiliates, in accordance with the Executive other than: terms and provisions of such plans, programs and arrangements, (i) the payment of Employee shall be entitled to severance compensation for the Executive's earned and unpaid compensation through the effective date of Severance Period (as hereinafter defined) following any such termination, payable in equal monthly installments, subject to withholding and other applicable taxes, at an annual rate equal to the Employee's base salary for the year of termination, as such annual rate is increased from year to year in accordance with Section 4(a) hereof; (ii) as additional severance compensation following any such termination, the payment of any deferred bonus, subject Employee shall be entitled to the provisions bonus compensation referred to in Section 4(b) hereof for the Severance Period, payable as and when ordinarily determined for the applicable year, with a bonus not less than seventy-five percent (75%) of Section 409A his rate of annual base salary in effect for the Codeyear of termination; (iii) the Employee and the Employee's spouse and Dependent Children (as hereinafter defined) shall be entitled to medical and dental benefits as provided immediately prior to the date of termination which shall continue for the Severance Period (which benefits shall be terminated sooner to the extent provided by another employer and shall be subject to coordination with Medicare payments in accordance with the terms of the applicable benefit plan); (iv) the Employee shall be entitled to receive, during the Severance Period, the benefits described in Section 4(d) hereof and the automobile and club membership rights and perquisites described in Section 4(e) hereof and payment by the Subsidiary of the premiums on the Executive Life Insurance Policies as described in Section 4(e) hereof, provided, however, if any such benefit is not available to the Employee under applicable law or the terms of any plan, program or arrangement because he is not an amount employee, or otherwise, the Subsidiary shall pay the Employee, within ten (10) days following such termination, a lump-sum cash payment equal to the sum value of such benefits, and the types, terms and conditions of the Executive's annual Base Salary plus benefits, rights and perquisites provided to the Executive's Maximum Bonus Amount Employee under clauses (as in effect iii) and (iv) of this Section 10(a) shall be not less favorable than the most favorable of (x) those provided to the Employee as of the date of termination), 50% this third amendment and restatement of which shall be paid this Agreement and (y) those provided to the Executive upon the first business day following the six month anniversary of Employee immediately prior to the date of termination of employment his employment; and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject the Employee shall be entitled to reasonable outplacement services selected by the provisions of Section 409A Employee at the Subsidiary's expense. Following expiration of the Code, immediate payout of period within which the Employee is entitled to receive medical and dental benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal pursuant to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) of the first sentence of this Section 10(a), other than by reason of receiving such benefits from another employer or coordination of such benefits with Medicare payments, the Employee shall be entitled to elect to further continue any such benefits for himself, his spouse and his Dependent Children until the benefits set forth Employee's death so long as the Employee pays the applicable premiums otherwise payable by former employees of the Subsidiary generally for continuation coverage under the applicable plans. If a Change in clause Control occurs, and (AI) at the time of such occurrence, any such severance compensation is being paid or required to be paid in the immediately preceding provisofuture to the Employee or (II) such termination of employment occurs following the Change in Control, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of aggregate gross severance compensation payable under clauses (xi) two and (yii) of this Section 10(a) for the Severance Period, or the previously unpaid portion thereof, as the case may be, shall be paid by the Company or the Subsidiary in a lump-sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect cash payment, as of the date of terminationthe Change in Control (in the case of clause (I) immediately preceding) or such termination of employment (in the case of clause (II) immediately preceding) and no provision shall be made for any future increases in base salary pursuant to Section 4(a) hereof nor shall any discount be taken with regard to payments pursuant to Section 4 because of payment in a lump sum rather than as specified in clauses (i) through (iv) of this Section 10(a). In ; provided, however, that, for purposes of determining the event bonus compensation payable under clause (ii) of this Section 10(a), (a) if the termination occurs during the calendar year in which the Change in Control occurs, the bonus compensation with respect to such calendar year shall be determined in accordance with Section 4(b) hereof, except that the Executive is eligible actual EBITDA achieved shall be deemed to receive be the severance benefits provided EBITDA for the portion of the calendar year through the date of the transaction giving rise to the Change in Control, and such EBITDA shall be annualized if necessary by this Section 4.4(a), multiplying such EBITDA by a factor of 365 divided by the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.number of days of the
Appears in 1 contract
Severance. Subject (i) If, during the Term of this Employment Agreement, (i) the Company terminates Executive without Cause, or (ii) Executive resigns for Good Reason, then, upon Executive’s Termination of Employment (as defined below), the Company shall (in lieu of any other severance benefits under any of the Company employee benefit plans, programs or policies): (x) if and only if the Company is on target to meet at least 100% of Annual Budget for the year in which Executive’s Termination of Employment occurs, pay to Executive a prorated portion of the Annual Bonus to which Executive would otherwise be entitled for the year of termination (if any) calculated at the end of such year and paid on the same date on which annual bonuses are paid to other executives of the Company; and (y) continue to pay Executive’s Base Salary at the time of such termination for a period of fifteen (15) months following such Termination of Employment (the “Severance Period”), plus, if Executive achieved at least 100% of the Target Bonus for the year prior to Executive’s Termination of Employment, and the Company is on target to meet at least 100% of the Annual Budget for the year in which Executive’s Termination of Employment occurs, the Company will also pay Executive an amount equal to the Target Bonus for the year in which Executive's continued compliance ’s Termination of Employment occurs, which Target Bonus amount shall be paid on the same date on which annual bonuses are paid to other executives of the Company. Such severance amounts provided in clause (y) above will be paid in accordance with his obligations the Company’s normal payroll practices, subject to such withholding and other taxes as may be required or as otherwise permissible under this Agreement, the Company’s practices or policies.
(ii) The Company shall have no obligation to the Executive other than: make any severance payments § 4(c)(i) if (i) the payment Executive violates any of the Executive's earned and unpaid compensation through the effective date provisions of such termination; § 5 of this Employment Agreement, (ii) the payment Company chooses not to renew this Employment Agreement either at the expiration of its initial term or at any deferred bonuspoint thereafter, subject to the provisions of Section 409A of the Code; or (iii) the payment of an amount equal Executive does not execute and deliver (without revoking) to the sum Company a general release in the form attached to this Employment Agreement as Exhibit A (the “Release”) following Executive’s Termination of Employment.
(iii) Executive waives Executive’s rights, if any, to have the Executive's annual Base Salary plus payments provided for under this § 4(c) taken into account in computing any other benefits payable to, or on behalf of, Executive by the Executive's Maximum Bonus Amount (as in effect as of the date of termination), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; Company.
(iv) treatment Notwithstanding anything to the contrary in this Employment Agreement, if a Change in Control (as defined in the NCP-ATK Holdings, Inc. 2010 Stock Option Plan) occurs, neither the Company, nor any current and/or future entity that controls, is controlled by or is under common control with the Company (collectively, “Affiliates”), nor any acquirer of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A Company or any Affiliate of the Code, immediate payout of benefits previously accrued Company will have any obligation to make severance payments under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company this Section in connection with any Section 83(b) election made by the such Change in Control unless Executive’s employment is terminated without Cause or Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that resigns for Good Reason following such Change in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementControl.
Appears in 1 contract
Severance. Subject to the Executive's continued compliance with his obligations under this Agreement, the Company shall have no obligation to the Executive other than: (i) With respect to each Transferred Employee whose employment is terminated by Purchaser or one of its Affiliates during the payment eighteen (18) month period immediately following the Lease End Date (or, in the case of Foreign Employees, the Executive's earned and unpaid compensation through twenty-four (24) month period immediately following the effective date Lease End Date), Purchaser shall provide severance benefits to each such employee which are no less favorable than those provided under the standard, country specific, non-restructuring severance policy of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as Sellers in effect as of the date of terminationthis Agreement, a copy of which is attached hereto on Schedule 10.2(b)(i).
(ii) To the extent that Conopco and its Affiliates are required to pay severance benefits to a number of Business Employees in excess of a maximum number of Business Employees determined in accordance with Schedule 10.2(b)(ii) (such maximum number, the "Maximum Number", and such excess number, the "Excess Number"), 50% Purchaser shall pay to Conopco, no later than the earlier of which shall be paid to August 1, 2001 or the Executive upon the first business thirtieth day following the six month anniversary of the date of termination of employment and the remainder of last day on which shall any Leased Employee ceases to be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued a Leased Employee under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDEDEmployee Lease Agreement, that in the event that such termination is within six months following the Closing, an amount equal to (A) in lieu the average severance required to be paid by Conopco and its Affiliates to all Business Employees (which, for the avoidance of doubt, is not just the benefit set forth in clause (iii)Excess Number of Business Employees) entitled to severance benefits, the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), multiplied by (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent SharesExcess Number; provided, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHERhowever, that in the event that such termination if a Foreign Employee is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible nevertheless entitled to receive severance benefits pursuant to applicable Laws, notwithstanding that Purchaser has made an offer of employment to such Foreign Employee in accordance with the provisions of this Article X, then (i) Conopco and its Affiliates shall be solely liable for severance benefits to such Foreign Employee and (ii) any such Foreign Employee shall be disregarded for purposes of determining under this Section 10.2(b)(ii) the number of Business Employees to whom Conopco and its Affiliates have provided severance benefits. With respect to Foreign Employees described in the last sentence of Section 10.1(a), to the extent that Purchaser is required to hire or continue the employment of Foreign Employees at the Closing Date due to foreign Laws (such Foreign Employees being deemed Transferred Employees in accordance with Section 10.1(b)) and Purchaser terminates the employment of such Foreign Employees on or prior to the last day on which any other Company planLeased Employee ceases to be a Leased Employee under the terms of the Employee Lease Agreement, policy, or agreementsuch terminated Transferred Employees shall not be disregarded but shall be counted for purposes of determining under this Section 10.2(b)(ii) the number of Business Employees to whom Conopco and its Affiliates have provided severance benefits (and therefore shall be counted toward the Maximum Number and in the calculation of the Excess Number).
Appears in 1 contract
Severance. Subject to You shall be eligible for the Executive's continued compliance with his obligations under severance benefits described in this Agreement, Section 8.
a. In the Company shall have no obligation to the Executive other than: event (i) the payment of the Executive's earned Company terminates your employment without Cause (as defined below and unpaid compensation through the effective date of such termination; other than due to your death or disability), or (ii) you terminate your employment for Good Reason (as defined below), and provided in either case of (i) or (ii) such termination or resignation constitutes a “separation from service” (as defined under Treasury Regulation Section 1.409A-1(h), without regard to any alternative definition thereunder, a “Separation from Service”) (such termination or resignation, an “Involuntary Termination”), then, in addition to the payment of any deferred bonusAccrued Obligations, subject to the provisions of Section 409A of the Code; (iii) the payment of your obligations below, you shall be entitled to receive an amount equal to twelve (12) months of your then current base salary (ignoring any decrease in base salary that forms the sum basis for Good Reason), less all applicable withholdings and deductions, paid on the schedule described below (the “Severance Pay”).
b. The Severance Pay is conditional upon (i) your continuing to comply with your obligations under your PIIA (as defined below); and (ii) your delivering to the Company an executed separation agreement and general release of claims in favor of the Executive's annual Base Salary plus Company, in a form attached hereto as EXHIBIT A, within the Executive's Maximum Bonus Amount (as time period set forth therein, which becomes effective in effect as of the date of termination)accordance with its terms, 50% of which shall be paid to no later than sixty (60) days following your Separation from Service (the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall “Release”). The Severance Pay will be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under on the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by ’s regular payroll schedule over the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days period outlined above following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Sharesyour Separation from Service; PROVIDEDprovided, FURTHERhowever, that in the event that such termination is on or after the date that is six months after the Closing but no payments will be made prior to the first anniversary of sixtieth (60th) day following your Separation from Service. On the Closing, in lieu of the benefit set forth in clause sixtieth (iii60th) and the benefits set forth in clause (A) in the immediately preceding provisoday following your Separation from Service, the Company shall will pay you in a lump sum the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum amount of the Executive's annual Base Salary plus Severance Pay that you would have received on or prior to such date under the Executive's Maximum Bonus Amount original schedule but for the delay while waiting for the sixtieth (as in effect as 60th) day, with the balance of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementSeverance Pay being paid as originally scheduled.
Appears in 1 contract
Severance. Subject If the Company terminates the Executive's employment without "cause" pursuant to Section 4(c) above (other than following a Change of Control, which is subject to Section 5) or the Executive's employment terminates as a result of a Notice of Non-Extension provided to the Executive by the Company pursuant to Section 2 above, then, subject to the Executive's execution of the Release attached hereto as Exhibit A (or in a substantially similar form as the Company deems necessary in order to comply with then applicable law) (the "Release") and the Release becoming effective in accordance with its terms not later than the sixtieth (60th) day following the Executive's termination of employment, the Executive shall be entitled to receive the following severance benefits: (i) as severance payments, the sum of (A) one (1) year of his then Base Salary and (B) the amount equal to the Executive's Target Bonus for the calendar year in which the Executive's termination of employment occurs, payable over a twelve (12) month period in accordance with the Company's payroll schedule in effect from time to time (the "Severance Payments"), and (ii) to the extent he is then a participant in the Company's health insurance plan and eligible for benefits under plan terms, and only if the benefit under this clause (ii) does not cause the Company to fail to satisfy the requirements of, or be in violation of, Section 2716 of the Public Health Service Act or Section 9815 of the Internal Revenue Code of 1986, as amended (the "Code"), to continued compliance health insurance coverage for one (1) year immediately following such termination at then existing employee contribution rates, which the Executive shall pay (such continued coverage to run concurrently with any continued coverage obligation under the federal law known as COBRA or any state equivalent) (the "COBRA Payments"). If the Company terminates the Executive's employment pursuant to Section 4(a) above or the Executive's employment is terminated pursuant to Section 4(b) above, then, subject to the Executive's (or, if applicable, his obligations estate's) execution of the Release and the Release becoming effective in accordance with its terms not later than the sixtieth (60th) day following the Executive's termination of employment, the Executive shall be entitled to receive the following severance benefits: (i) one (1) year of his then Base Salary, payable over a twelve (12) month period in accordance with the Company's payroll schedule in effect from time to time (the "Death/Disability Severance Payments"), and (ii) only in the event the Company terminates the Executive's employment pursuant to Section 4(a) above, the COBRA Payments. Such Severance Payments, Death/Disability Severance Payments, and COBRA Payments shall be the Executive's sole AmericasActive:9933006.8 entitlement upon termination of employment pursuant to Sections 4(a), 4(b), or 4(c) above, as applicable. Notwithstanding the foregoing, if the Company's payments under Section 4(e)(ii) (and under Section 5(ii) below) would violate the nondiscrimination rules applicable to non-grandfathered, insured group plans under the Affordable Care Act (the "ACA"), or result in the imposition of penalties under the ACA and the related regulations and guidance promulgated thereunder, the parties agree to reform Section 4(e)(ii) (and Section 5(ii) below) in a manner as is necessary to comply with the ACA. Subject to the last paragraph of this Section 4(e), the Severance Payments or the Death/Disability Severance Payments, and the COBRA Payments or the Enhanced COBRA Payments (as defined in Section 5 below) will commence on the sixtieth (60th) day following the Executive's termination of employment with the first payment inclusive of any payments that would have been otherwise payable during such initial sixty (60)-day period. Subject only to the Executive's delivery of an executed Release and such Release becoming effective within the provided sixty (60)-day period, the Company's obligation under this Section 4(e) shall be absolute and unconditional, and the Executive shall be entitled to such severance benefits regardless of the amount of compensation and benefits the Executive may earn or be entitled to with respect to any other employment he may obtain during the period for which severance payments are payable. If the Company terminates the Executive's employment with "cause" pursuant to Section 4(c) above, if the Executive terminates his employment pursuant to Section 4(d) above, or if the Executive's employment terminates as a result of a Notice of Non-Extension provided to the Company by the Executive, then the Executive shall not be entitled to any further payments under this Agreement, the Company shall have no obligation to the Executive other than: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonusincluding Base Salary, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount Bonus, Employee Benefits, Severance Payments, Death/Disability Severance Payments, COBRA Payments, Enhanced Severance Payment (as defined in effect as of the date of terminationSection 5 below), 50% of which shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; or Enhanced COBRA Payments (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below defined in Section 4.4(b), (c5 below) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by applicable law, including the terms payment of any amounts owed to the Executive and any obligation that the Company may have to offer the Executive continued benefit plan participation. To the extent that any amount payable under this Agreement constitutes an amount payable under a "nonqualified deferred compensation plan" (as defined in Section 409A of the Company's benefit plans Code (excluding severance planshereinafter, "Code Section 409A"); PROVIDED) that is not exempt from Code Section 409A, and such amount is payable as a result of a "separation from service" (as defined in Code Section 409A), including any amount payable under this Section 4 or Section 5 below, then, notwithstanding any other provision in this Agreement to the contrary, such payment will not be made to the Executive until the day after the date that in the event that such termination is within six (6) months following his separation from service (the Closing, (A) in lieu of the benefit set forth in clause (iii"Specified Employee Payment Date"), but only if, as of his separation from service, he is a "specified employee" under Code Section 409A and any relevant procedures that the Company shall pay may establish. For the Executive a lump sum cash amount equal to avoidance of doubt, on the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent SharesSpecified Employee Payment Date, the Executive will be paid in a single lump sum cash amount within 30 days following all payments that otherwise would have been made to him under this Agreement during the date six (6)-month period but were not made because of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or this paragraph. This paragraph will not be applicable after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and the benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreementdeath.
Appears in 1 contract
Sources: Employment Agreement (ORBCOMM Inc.)
Severance. Subject to (a) If the Executive's continued compliance with his obligations under this Agreement, Term is terminated by the Company shall have no obligation to the Executive other than: for Cause,
(i) the payment of Company and the Partnership will pay to the Executive an aggregate amount equal to the Executive's earned ’s accrued and unpaid compensation base salary through the effective date of such termination;
(ii) all unvested options and unvested restricted shares will terminate immediately; and
(iii) any vested options issued pursuant to the Company’s Incentive Plan and held by the Executive at termination, will expire ninety (90) days after the termination date.
(b) If the Term is terminated by the Executive other than because of death, Disability or for Good Reason,
(i) the Company and the Partnership will pay to the Executive an aggregate amount equal to the Executive’s accrued and unpaid base salary through the date of such termination;
(ii) all unvested options and unvested restricted shares terminate immediately; and
(iii) any vested options issued pursuant to the Company’s Incentive Plan and held by the Executive at termination, will expire ninety (90) days after the termination date.
(c) If the Term is terminated upon the Executive’s death or Disability,
(i) the Company and the Partnership will pay to the Executive’s estate or the Executive, as the case may be, a lump sum payment equal to the Executive’s base salary through the termination date, plus a pro rata portion of the Executive’s bonus for the fiscal year in which the termination occurred;
(ii) the payment Company will make payments for one (1) year of any deferred bonus, subject all compensation otherwise payable to the provisions of Section 409A of the CodeExecutive pursuant to this Agreement, including, but not limited to, base salary, bonus and welfare benefits; and
(iii) the payment of an amount equal to the sum all of the Executive's annual Base Salary plus ’s unvested stock options and restricted stock awards will immediately vest and such options, along with those previously vested and unexercised, will become exercisable for a period of one (1) year thereafter.
(d) Subject to Section 6(e) hereof, if the Term is terminated by the Company without Cause or other than by reason of Executive's Maximum Bonus Amount (as ’s death or Disability, in effect as of the date of termination)addition to any other remedies available, 50% of which shall be paid to or if the Executive upon terminates the first business day following Term for Good Reason,
(i) the six month anniversary of the date of termination of employment Company and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of Section 409A of the Code, immediate payout of benefits previously accrued under the Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company Partnership shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and one (y1) times the sum of (A) the Executive's ’s then annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu the amount of the benefit set forth in clause Executive’s bonus for the preceding year;
(ivii) all of the Executive’s unvested stock options and restricted stock will immediately vest and such options, along with respect to any Purchased Parent Sharesthose previously vested, any Purchased Parent Shares shall be returned to the Company in exchange will become exercisable for a refund period of the full purchase price within 30 days following such return and one (C1) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Sharesyear thereafter; PROVIDED, FURTHER, that in the event that such termination is on or after the date that is six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause and
(iii) and the Company shall continue in effect the Executive’s health insurance benefits set forth until the earlier of (x) one (1) year from the end of the term or (y) the date on which the Executive obtains health insurance coverage from a subsequent employer.
(e) If, within eighteen (18) months following a Change in Control, the Term is terminated by the Executive for Good Reason, or by the Company without Cause, or if the Agreement is not renewed by the Company in accordance with Section 1, in addition to any other rights which the Executive may have under law or otherwise, the Executive shall receive the same payments and benefits provided for under Section 6(d) hereof; provided, that the amount of the multiplier described in clause (Ad) in of Section 6 hereof shall be increased from one times to two times.
(f) If at any time the immediately preceding provisoTerm is not extended pursuant to the proviso to Section 1 hereof as a result of the Company giving notice thereunder that it elects to permit the term of this Agreement to expire without extension, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of be deemed to have terminated the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount ’s employment without Cause.
(as in effect as of the date of termination). In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a)g) As used herein, the Executive shall not be eligible to receive severance benefits under any other Company plan, policy, or agreement.term “Cause” means:
Appears in 1 contract
Sources: Executive Employment Agreement (Meristar Hospitality Corp)