Severance. (i) In the event of any termination of the Executive’s employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B). (iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below: A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment. B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement. (vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below. (vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Employment Agreement (Baudax Bio, Inc.), Employment Agreement (Recro Pharma, Inc.)
Severance. (ia) In the event of any Upon termination of the Executive’s employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 ExecutiveGeneral Manager’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company District pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during the twelve (1215(a) 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly)herein, and shall continue the Executive’s, if General Manager timely executes and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for a period of twelve (12) months from the effective date of such termination, delivers to District an original Separation Agreement 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or her termination of employment, of a general release of claims against the Company and its affiliates substantially General Release in the form attached hereto as Exhibit Attachment 4, and does not thereafter timely exercise his right to revoke said Separation Agreement and General Release, General Manager shall receive his earned income and a severance allotment as follows:
(1) Cash for all uncompensated accrued earnings and vacation and sick (2) leave (in accordance with Section 7 herein) as of the effective date of termination; and A severance allotment as follows: An amount equal to six (6) months’ salary of General Manager and six (6) months of medical insurance and life insurance benefits on the “Release”same basis as District is providing such benefits immediately prior to termination of employment. However, if the unexpired term of the Employment Agreement is less than six (6) months, the severance allotment shall be in an amount equal to General Manager’s monthly salary multiplied by the number of full months left on the unexpired term of this Employment Agreement along with the corresponding medical and life insurance benefits for such number of months. MCSD GM Agreement 1107555.1 7
(b) Notwithstanding the foregoing in Section 16(a). Subject , if the basis for the "just cause" for termination pursuant to Section 11 below15(a) herein is that the General Manager engaged in any of the activities listed on Attachment 3, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(Bwhich attachment is incorporated herein by this reference, upon termination of General Manager’s employment for such reason(s), at such later time General Manager shall receive his earned income as specified therein); provided that if follows:
(1) Cash for ail uncompensated accrued earnings and vacation and sick leave (in accordance with Section 7 herein) as of the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the effective date of the Executive’s cessation of employmenttermination; and
(2) No severance allotment shall be paid.
B. The Executive(c) Upon termination of General Manager’s continued compliance employment pursuant to Section 15(b) herein, General Manager shall receive his earned income as follows:
(1) Cash for all uncompensated accrued earnings and vacation and sick leave (in accordance with Section 7 herein) as of the provisions effective date of the termination ; and
(2) No severance allotment shall be paid.
(d) Upon expiration of the term of the Agreement without a renewal by the District, General Manager shall receive his earned income as follows:
(1) Cash for all uncompensated accrued earnings and vacation and sick leave (in accordance with Section 7 herein) as of the effective date of the termination; and
(2) No severance allotment shall be paid. 1107555.1
(e) In accordance with Government Code Sections 553243 and 53243.2, 6, 7 and 8 notwithstanding any other provision of this Agreement., the parties hereto agree as follows:
(vi1) The Executive To the extent, if any, that General Manager is paid leave salary and benefits pending an investigation, General Manager shall not be required to seek fully reimburse District for such leave salary and benefits if General Manager is convicted of a crime involving an abuse of his office or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.position; and
(vii2) Any continuation If General Manager receives any severance allotment or other cash settlement from District upon termination of health insurance under this Agreement, General Manager shall fully reimburse District for such severance allotment or cash settlement if General Manager is convicted of a crime involving an abuse of his office or position. For purposes of this subsection (e) the phrase "abuse of office or position" shall have the meaning as set forth in Government Code Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease53243.4.
Appears in 2 contracts
Sources: General Manager Employment Agreement, General Manager Employment Agreement
Severance. If employment with the Company should be terminated by the Company for Cause, or by the Employee without Good Reason (iin which case the Employee will provide not less than ninety (90) In days written notice to the event of Board), and if there has not been a “Change in Control” within the prior twelve (12) months, no further compensation will be payable to Employee other than Employee’s base salary, any termination of bonus earned but unpaid for the Executive’s employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary immediately preceding annual performance period and other compensation accrued and payable through the date of such termination, . If employment with the Company should be terminated (Bi) the value within twelve (12) months of his or her accrued but unused vacation and paid time off through the date of termination, (C) except a “Change 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 Control” of the Company or (not including any severanceii) without Cause or for Good Reason, separation paythe Company agrees that Employee will be paid severance compensation, or supplemental unemployment benefit plan), in equal amounts over a period of eighteen (18) months in accordance with the terms Company’s normal payroll practices, an amount equal to eighteen (18) months of such Employee’s then current monthly base salary plus a pro-rated amount of any bonus that would have been earned under the Company’s short-term incentive plan or policy (based on Employee’s last day of employment and all applicable performance) provided all applicable performance conditions are met. In addition, if Employee elects to continue Employee’s health insurance pursuant to the “Accrued Benefits”Consolidated Omnibus Budget Reconciliation Act (COBRA).
(ii) In the event of termination of the Executive’s employment by reason of death, the Company shall pay (or provide reimburse to the Executive’s estate: (AEmployee) the Accrued Benefits, (B) “employer share” of the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), for a period of six (6) months from COBRA premiums at the effective date of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed same level as was contributed by the Company in during Employee’s employment. Employee’s receipt of any such year) severance payment or COBRA premium is subject to execution by Employee and paid promptly following C▇▇▇▇▇▇▇ of an agreement achieving mutually acceptable terms on matters such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).as:
(iiia) In the event return of a termination by the Company pursuant to Section 10(a)(iii)all C▇▇▇▇▇▇▇ property, documents, 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any event.instruments;
(ivb) Except as expressly provided in this Section 10(b), upon no admission of liability on the termination part of the Executive’s employment, all payments hereunder shall cease.C▇▇▇▇▇▇▇;
(vc) 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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or her termination of employment, of a general release of claims against the Company any and its affiliates substantially all claims;
(d) non-disclosure as described in the form attached hereto as Exhibit A (the “Release”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.;
(vie) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, non-solicitation of employees and customers as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.this Agreement;
(viif) Any continuation of health insurance under non-competition as described in this Section 10(bAgreement;
(g) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive cooperation as described in this Agreement; and
(or his eligible dependents, as applicableh) are not eligible, or cease to be eligible, for COBRA continuation mutual (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(bbi-lateral) will ceasenon-disparagement.
Appears in 2 contracts
Sources: Executive Employment Agreement (Crawford & Co), Executive Employment Agreement (Crawford & Co)
Severance. (i) In During the event of any termination of Term, if within 18 months after a Change in Control, the Executive’s employment for any reason, 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 satisfaction of the Release Condition, all within 60 days from the Date of Termination,
(or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (Bi) the value of his or her 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 employment by reason of death, the Company Employers shall pay or provide the Executive a lump sum in cash in an amount equal to 2.25 times the Executive’s estate: sum of (A) the Accrued BenefitsExecutive’s current Base Salary (or the Executive’s Base Salary in effect immediately prior to the Change in Control, if higher) plus (B) the Executive’s Base SalaryIncentive Compensation determined on the Date of Termination (or the Executive’s Incentive Compensation determined immediately prior to the Change in Control, if higher); and
(ii) if the Executive was participating in accordance the Employers’ group medical, vision and dental plan immediately prior to the Date of Termination, then the Employers shall provide the Executive with its normal payroll practices a lump sum payment equal to (but not less frequently than monthly)A) 18 times the amount 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 a period of six (6) 18 months from the effective date Date of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that Termination if the Executive is had remained employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).Employers; and
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during the twelve amounts payable under Subsections (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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (Ai) and (Bii) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to shall be paid or provided ten (10) in a lump sum within 60 days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B)Date of Termination; provided, at such later time as specified therein); provided however, that if the seventy (70) 60-day period following the date of termination begins in one taxable calendar year and ends in a second taxable calendar year, such payments or benefits amounts shall not commence until be paid in the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits described in Sections 10(b)(ii) and 10(b)(iii), and such benefits shall not be reduced or offset by an amounts received calendar year by the Executive from any other source, except to the extent provided in Section 10(b)(vii), belowlast day of such 60-day period.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Employment Agreement (Tier Reit Inc), Employment Agreement (Behringer Harvard Reit I Inc)
Severance. (ia) In the event that the Executive’s employment hereunder is terminated during the Term (i) by the Corporation other than for Cause, or (ii) by the Executive for Good Reason (as hereinafter defined) pursuant to a Notice of Termination (as hereinafter defined), then the Corporation shall continue the Executive’s participation (including participation by his spouse and other dependents) on the same basis as other senior officers in its medical and dental plans or arrangements, which plans and arrangements shall not include any life insurance or disability plans or arrangements (“Medical and Dental Plans”), and the Corporation will continue to pay the costs of coverage of the Executive and his spouse and other dependents under the Medical and Dental Plans on the same basis as other active officers of the Corporation covered under such Medical and Dental Plans, for the greater of twelve (12) months or the remainder of the Term (the “Severance Period”; provided that if the Executive’s employment hereunder is terminated during the Term (i) by the Corporation other than for Cause, or (ii) by the Executive for Good Reason pursuant to a Notice of Termination and, in the case of clause (i) or (ii), such termination occurs after a Change of Control, then the “Severance Period” shall be eighteen (18) months); provided, however, that if such continued participation in the Medical and Dental Plans is not possible under the terms thereof, the Corporation will provide the Executive with substantially identical benefits for the remainder of such period or an amount in cash equal to the cost to the Corporation for providing such benefits, paid in accordance with Section 10(e) of this Agreement. Notwithstanding the foregoing, the Corporation’s obligations pursuant to the first sentence of this Section 10(a) shall cease and terminate in the event that the Executive is, or becomes, eligible for coverage under a medical plan of a successor employer or a spouse’s employer. The Corporation shall also pay to the Executive severance payments in cash equal to the sum of (x) the amount of the Executive’s employment then current base annual salary and (y) the Target Bonus for any reasonthe fiscal year in which the termination occurs (or, if the Target Bonus for such fiscal year has not yet been established, the Target Bonus for the immediately preceding fiscal year), multiplied by the quotient obtained by dividing the number of days during the Severance Period, by three hundred sixty-five (365). In addition, the Executive (or his or her estate) shall be entitled to the payment of any accrued and unpaid salary (Aincluding accrued and unused vacation) his or her Base Salary through the date of termination, (B) the value any accrued and unpaid bonuses in respect of his or her accrued but unused vacation and paid time off through the date of termination, (C) except in the case of termination for Causeprior fiscal years, any bonus earned in a prior year but not yet paid on the date of terminationbonus, (D) reimbursement of all business expenses properly incurred prior to the date of termination consistent with Company policydetermined under Section 5, 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 termination occurs, prorated through the date of termination occurs (determined based on actual performance and the number of days termination. Further, the Executive is employed by shall be provided with outplacement assistance commensurate with the Company in such fiscal year), Executive’s position with such annual bonus (if any) paid at the same time it would have otherwise been paid absent Corporation during the Severance Period following the Executive’s termination of employment. Except as set forth in Sections 2, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly7(b), 8 and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any event.
(iv) Except as expressly provided in this Section 10(b10(a), upon 10(b)(iv) and 10(f) hereof, the termination Corporation shall have no further obligations under this Agreement in the event of the Executive’s employmenttermination of employment under this Section 10. The Executive shall have the obligations provided under Section 12 hereof, all payments hereunder shall ceaseto the extent applicable pursuant to its terms.
(vb) The payments and benefits described in Sections 10(b)(ii) and 10(b)(iii) are in lieu ofFor the purpose of this Agreement, and not in addition to“Good Reason” shall mean the occurrence, any other severance arrangement maintained by without the Company. The payments and benefits described in Sections 10(b)(ii) and 10(b)(iii), other than the Accrued Benefits, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or express written consent, of any of the following circumstances unless, in the case of the 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 paragraphs (60th) day following the effective date of his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(Bi), at such later time as specified therein(v); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation below, such circumstances are fully corrected prior to the Date of health insurance under this Section 10(bTermination (as defined below) will be accomplished by specified in the Company’s waiver or payment Notice of the applicable premium for COBRA continuation coverage. To the extent Executive Termination (or his eligible dependents, as applicabledefined below) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment given in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.respect thereof:
Appears in 2 contracts
Sources: Employment Agreement (Factory Card Outlet Corp), Employment Agreement (Factory Card Outlet Corp)
Severance. (i) In If the event of any termination of Company terminates the ExecutiveEmployee’s employment for any reasonreason other than for Cause, the Executive (or his or her estate) Employee shall be entitled to the 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 (A36) his or her Base Salary through month period on the date first day of the month of the Employee’s termination, said sum to be paid within Thirty (B30) days after the value Employee’s termination of his employment.
b. The Company shall pay the Employee all bonus of deferred compensation (whether in the form of cash, stock or her otherwise) accrued but unused vacation and paid time off through unpaid as of the date of Employee’s termination, said sum to be paid within Thirty (C30) except in days after the case Employee’s termination or employment.
c. For a period of Twenty-four (24) months after the Employee’s termination of employment with the Company, the Company shall continue to pay for Cause, any bonus earned in a prior year but not yet paid on and provide existing employee welfare benefits which the date Employee is receiving as of termination, (D) reimbursement of all business expenses properly incurred prior to the date of termination consistent with Company policy, and (E) any benefitsof employment, including any continuation or conversion rightslife insurance, provided under any employee benefit plan or policy of the Company (not including any severancehealth, separation paymedical, or supplemental unemployment benefit plan)dental, in accordance with the terms of such plan or policy (the “Accrued Benefits”).
(ii) In the event of termination of the Executive’s employment by reason of deathvision and wellness, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefitsaccidental death and dismemberment and disability benefits; provided, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days however that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by obligations under this subsection shall terminate from the date that the Employee first becomes eligible after termination of employment with the Company for other employees of the Company) for the period described above in clause (B)similar coverage under another employer’s plan.
(iii) In the event of a termination by the Company pursuant to 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 d. Notwithstanding anything 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 contrary in any event.
Stock Option Agreement: (ivi) Except all unvested shares underlying stock options shall become fully vested as expressly provided in this Section 10(b), upon the termination of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the ExecutiveEmployee’s cessation termination and (ii) the Employee shall continue to be treated under each Stock Option Agreement as if the Employee was an employee of employment.
B. the Company until the first to occur of (x) the Twenty-Four (24) month anniversary of the Employee’s termination of employment or (y) the expiration of the exercise period provided for therein; provided, however, in the event of the 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 the Stock Option Agreement shall apply. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreementsubsection shall also apply to all substitute stock options granted to Employee in exchange for the Employee’s Company stock options to which this subsection applies.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Executive Employment Agreement (Accentia Biopharmaceuticals Inc), Executive Employment Agreement (Accentia Biopharmaceuticals Inc)
Severance. (ia) In Subject to the event terms of any termination of the Executivethis Agreement, if Employee’s employment for any reasonis terminated by the Company without Cause (as defined below) during the Term (as defined below), Employee will be eligible to receive severance payments equal to twelve (12) months of Employee’s base salary in effect at the Executive time Employee ceased to be employed by the Company (or his or her estate) the “Severance Payments”), payable in accordance with Section 1. Employee shall be entitled to Severance Payments only (Ai) his or her Base Salary through the date upon execution by Employee of termination, a release (B) the value of his or her 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, (Dform satisfactory to Company) 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 claims against the Company (not including any severance, separation pay, or supplemental unemployment benefit plan), in accordance with the terms of such other than claims relating to equity and long-term incentive plan or policy compensation) (the “Accrued BenefitsGeneral Release”).
) and the General Release has become effective and is no longer subject to revocation no later than sixty (60) days following the termination of employment and (ii) In so long as Employee has not breached the event provisions of termination of any other agreement with the Executive’s employment by reason of deathCompany, the Company shall pay or provide including without limitation, any Restrictive Covenants contained in any equity award agreement, and Employee has not applied for unemployment compensation chargeable to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) . In the event of a termination breach by Employee of any agreement with the Company, including without limitation, any Restrictive Covenants, all Severance Payments shall cease and terminate and Employee shall repay to the Company pursuant the amount of Severance Payments paid to Section 10(a)(iii)Employee prior to such breach within thirty (30) days following notice of such breach. Employee shall not be entitled to any other salary, compensation or if benefits after termination of employment, except as may be provided under the Executive terminates this Change in Control 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 actual performance between Employee and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus ▇▇▇▇▇▇ (if any) or as required by law.
(b) Except as noted below, the Severance Payments pursuant to this provision shall be paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in equal installments in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consentnormal payroll practices. If Employee is party to a Change in Control Agreement, which the Severance Payments pursuant to this provision shall be paid on the date and schedule specified with respect to benefits under such Change in Control Agreement.
(c) The Severance Payments pursuant to this provision shall not be unreasonably withheldpaid or provided until the first scheduled payment date following the date that the General Release has become effective and no longer subject to revocation; provided, provided however, that such outplacement expenses if the Severance Payment constitutes nonqualified deferred compensation within the meaning of Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (“Section 409A”), the Severance Payment shall not exceed $25,000 in any event.
(iv) Except as expressly be paid or provided in this Section 10(b), upon the termination of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the Executive’s death, his/her estate’s) execution and delivery to the Company and the expiration of all applicable statutory revocation periods, by until the sixtieth (60th) day following such termination to the effective date extent necessary to avoid adverse tax consequences under Section 409A (e.g., if the 60 day period spans two calendar years); provided, further, that if Employee is a “specified employee” within the meaning of his or her termination Section 409A, and the Severance Payment constitutes nonqualified deferred compensation within the meaning 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”). Subject to Section 11 below409A, the Severance Benefits will begin to Payment shall not be paid or provided ten until the date that is six months and one day following such termination to the extent necessary to avoid adverse tax consequences under Section 409A. For purposes of Section 409A, the right to a series of installment payments hereunder shall be treated as a right to a series of separate payments.
(10d) days after the Release becomes irrevocable (or For purposes of this Agreement, “Cause” shall mean with respect to the Employee (i) the commission of, or plea of guilty or no contest to, a felony or a crime involving moral turpitude or the commission of any amount payable under Section 10(b)(iii)(B), at such later time as specified therein)other act involving willful malfeasance or material fiduciary breach with respect to the Company; provided (ii) conduct that if results in or is reasonably likely to result in harm to the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments reputation or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date business of the Executive’s cessation Company; (iii) gross negligence or willful misconduct with respect to the Company; (iv) willful and repeated failure of employment.
B. The Executive’s continued compliance with Employee to carry out his or her material duties to the provisions Company; (v) a willful violation of Sections 5, 6, 7 and 8 a material policy of this Agreement.
the Company; or (vi) The Executive shall not be required to seek a violation of a state or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), belowfederal securities law.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Severance Agreement (Butler National Corp), Severance Agreement (Butler National Corp)
Severance. (i) In If your employment is terminated by the event of any termination of the Executive’s employment Company without Cause or by you for any reasonGood Reason, the Executive (or his or her estate) shall be entitled Company will continue to (A) his or her pay you your Base Salary through in accordance with the date of termination, (B) Company’s normal payroll cycle during the value of his or her 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 period commencing on the date of termination, (D) reimbursement of all business expenses properly incurred prior to termination and ending on 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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 month anniversary of such date of such termination; provided, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive however, that, if your employment is employed terminated by the Company in such year) and paid promptly following such termination, and without Cause or you resign for Good Reason within six (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during the twelve (126) months after a Change of Control pursuant to Section 10(a)(v)Control, the Company shall will instead pay you your Base Salary in accordance with the Company’s normal payroll cycle during the period commencing on the date of termination and ending on the twelve (A12) pay or provide to month anniversary of such date of termination. If you are participating in the Executive the Accrued Benefits, (B) pay the Executive a pro-rata annual bonus in respect of the fiscal year in which Company’s group health insurance plans on the effective date of termination occurs (determined based on actual performance without Cause or by you for Good Reason, and the number of days the Executive is employed by you timely elect and remain eligible for continued coverage under COBRA, or, if applicable, state insurance laws, the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination shall pay that portion of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by your COBRA premiums that the Company for other employees of the Company) for a period of twelve (12) months from was paying prior to the effective date of termination for such terminationsix- or twelve-month severance period, as applicable, or for the continuation period for which you are eligible, whichever is shorter. Notwithstanding the foregoing provisions of this Section (i) if you become reemployed with another employer and are eligible for medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall cease, and (Dii) 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any event.
(iv) Except as expressly provided in payments pursuant to this Section 10(b), upon the termination of the Executive’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, (the “Severance Benefits”) are conditioned conditional on clauses (A) your not being in breach of your obligations under Section 5 of this Agreement or the Proprietary Agreement which breach, if reasonably curable, is not cured within thirty (30) days after delivery to you by the Company of written notice of such breach, and (B) below:
A. The Executivethe Company’s (or receipt of an executed general release in the case favor of the Executive’s deathCompany, his/her estate’s) execution and delivery in a form acceptable to the Company (executed by you or your other duly authorized representative) and the expiration of all applicable statutory the revocation periods, by period set forth therein. You agree to accept the sixtieth (60th) day following the effective date of his or her aforementioned severance compensation as liquidated damages for your 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5this Section, 6, 7 and 8 understand and agree that such liquidated damages are in lieu of all other compensation and benefits owed to you under any and all other provisions of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits described in Sections 10(b)(ii) Agreement and 10(b)(iii), further constitute reasonable compensation for losses that you may incur and such benefits shall not be reduced or offset by an amounts received by the Executive from any other source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will ceasea penalty.
Appears in 2 contracts
Sources: Employment Agreement (Advanced BioHealing Inc), Employment Agreement (Advanced BioHealing Inc)
Severance. (i) In the event lieu of any termination of the Executive’s employment for any reason, the Executive (severance pay or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 severance benefits otherwise payable to the date of termination consistent with Company Employee under any plan, policy, and (E) any benefits, including any continuation program or conversion rights, provided under any employee benefit plan or policy arrangement of the Company or its subsidiaries, the following shall apply:
(not including any severance, separation pay, or supplemental unemployment benefit plan), in accordance a) If there is a Termination (as herein defined) of the Employee's employment with the terms of such plan or policy (the “Accrued Benefits”).
(ii) In the event of termination of the Executive’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during the any time within twelve (12) months after the occurrence of a Change of Control pursuant to Section 10(a)(v(as herein defined), such Employee shall be entitled to receive a lump-sum severance payment equal to (i) one hundred percent (100%) of such employee's then current salary plus (ii) the amount of such employee's most recently paid regular bonus (excluding special bonuses) attributable to a full calendar year's service to the Company shall (A) pay or provide or, if higher, the amount of the bonus attributable to a calendar year's service which was paid to the Executive Employee immediately prior to the Accrued Benefits, (B) pay Change of Control). All outstanding Stock Options granted to the Executive a pro-rata annual bonus in respect Employee which are not vested and exercisable as of the fiscal year in which the effective date of termination occurs Termination shall become vested and exercisable as of such date and shall remain exercisable for the periods prescribed in the Stock Option Plan. The Employee, such Employee's spouse and eligible dependents will continue to be provided with medical and dental benefits for the twelve (determined based 12)-month period following such Employee's Termination on actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue basis as provided to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other active employees of the Company) for a period of . Following such twelve (12) months from 12)-month period, the effective date Employee, such Employee's spouse and eligible dependents will begin eligibility for continuation of such termination, medical and (D) provide the Executive, at the Company’s expense, dental coverage in accordance with senior executive level outplacement services for a period of twelve (12) months from the date of termination, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 4980B of the Executive’s employmentInternal Revenue Code of 1986, all payments hereunder shall cease.
as amended (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"Code"). The payments and benefits described in Sections 10(b)(ii) and 10(b)(iii), Employee shall have no duty to mitigate damages by seeking other than the Accrued Benefits, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. employment. The Executive’s (or in the case of the Executive’s death, his/her estate’s) execution and delivery Company shall have no right to the Company and the expiration of all applicable statutory revocation periods, by the sixtieth (60th) day following the effective date of his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or offset hereunder with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments compensation or benefits shall not commence until received by the second taxable year. The initial payment will include Employee from or in connection with any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date employment subsequent to such Employee's Termination of the Executive’s cessation of employment.
B. The Executive’s continued compliance employment with the provisions of Sections 5, 6, 7 and 8 of this AgreementCompany.
(vib) The Executive shall If the Employee voluntarily terminates employment with the Company for any reason other than "Good Reason" (as herein defined) during the twelve (12)-month period following a Change of Control as described in Section 2(a) below, the Employee will not be required entitled to seek any severance payment or accept other employment, or otherwise to mitigate damages, as a condition to receipt acceleration of the benefits 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 vesting of any other source, except to the extent provided in Section 10(b)(vii), belowunvested Stock Options.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Employment Agreement (Earthweb Inc), Employment Agreement (Earthweb Inc)
Severance. (i) In the event lieu of any termination severance pay or severance benefits otherwise payable to the Employee under any plan, policy, program or arrangement of the Executive’s employment for any reasonCompany or its subsidiaries, the Executive following shall apply:
a. Subject to Section 3(d), if there is a Termination (or his or her estateas herein defined) (but excluding by the Employee for Good Reason) other than during the Change of Control Period (as herein defined), the Employee shall be entitled to receive (i) a lump-sum severance payment equal to nine-months of his then-current annual base salary, and (ii) his Annual Bonus with respect to any completed year for which the Employee has not yet been paid, based on actual performance, paid at the time that executives are generally paid their annual bonuses for the applicable bonus year but in any event no later than March 15 of the calendar year following the last day of such completed year.
b. Subject to Section 3(d), if there is a Termination of the Employee’s employment with the Company during the Change of Control Period, the Employee shall be entitled to receive (i) a lump-sum severance payment equal to (A) one hundred percent (100%) of his or her Base Salary through the date of termination, then current annual salary plus (B) the value amount of his or her accrued but unused vacation and then-current bonus target (or, if higher, the amount of any Annual Bonus paid time off through in respect of the date of termination, (C) except in the case of termination for Cause, any bonus earned in a prior calendar year but not yet paid on the date of termination, (D) reimbursement of all business expenses properly incurred prior to the date calendar year of termination consistent of employment), (ii) his Annual Bonus with Company policyrespect to any completed year for which the Employee has not yet been paid, based on actual performance, paid at the time that executives are generally paid their annual bonuses for the applicable bonus year but in any event no later than March 15 of the calendar year following the last day of such completed year and (Eiii) accelerated vesting, effective upon such Termination, with respect to 100% of his outstanding equity-based awards (if any): provided, that vesting of 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), performance-based awards shall be governed by and determined in accordance with the terms applicable governing documents.
c. Subject to Section 3(d), following a Termination, the Employee shall be reimbursed for the cost of health insurance continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), in excess of the cost of such plan or policy (the “Accrued Benefits”).
(ii) In the event of termination of the Executive’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days benefits that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other active employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant are required to Section 10(a)(iii)pay, 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for a period of twelve (12) months from (or until the Employee obtains individual or family coverage through alternative coverage, if earlier) (the “COBRA Period”), provided that the Employee elects COBRA coverage and subject to the conditions that: (i) the Employee is responsible for promptly notifying the Company if the Employee obtains alternative insurance coverage, (ii) the Employee will be responsible for the entire COBRA premium amount after the end of the COBRA Period; (iii) if the Employee declines COBRA coverage, then the Company shall not make any alternative payment to the Employee in lieu of paying for COBRA premiums, and (iv) such COBRA reimbursement payments shall be paid on an after tax basis as additional taxable compensation to the Employee.
d. The severance pay and severance benefits described in the foregoing provisions of this Section 3 are expressly conditioned upon the Employee’s execution and delivery of the Company’s customary general waiver and release of claims in favor of the Company and its affiliates, that has become effective and irrevocable in accordance with its terms within 60 days following the date of termination of employment. All payments (including any payments that would have been made between the date of termination of employment and the effective date of such termination, and (Drelease but excluding any payments in respect of equity awards) 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 made as soon as practicable but in any event.
(iv) Except as expressly provided in this Section 10(b), upon the termination of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 event within 10 days following the effective date of his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein)release; provided that if the seventy (70) such 60-day period following the date of termination begins spans two calendar years, in one taxable year and ends in a second taxable year, such no event will any payments or benefits that constitute “deferred compensation” within the meaning of Section 409A (“Section 409A”) of the Internal Revenue Code of 1986, as amended from time to time (the “Code”), be paid prior to the first day of such second calendar year. Any payments in respect of the settlement of equity awards (including equity awards that vested in accordance with this Section 3) shall be made in accordance with the agreements governing such grants.
e. Upon termination of the Employee’s employment for any reason, this Agreement shall terminate and the Company shall not commence until have any obligation to provide any compensation or benefits to the second taxable yearEmployee except as specifically contemplated herein. Upon termination of the Employee’s employment for any reason, whether voluntarily or involuntarily, the Employee shall be deemed to have resigned from all positions, directorships, and memberships held with the Company or any of its affiliates, whether as an employee, officer, director, trustee, consultant, or otherwise, and such resignations shall be effective upon such termination of employment without any other action required by the Employee. The initial payment will include any Severance Benefits that, but for Employee hereby agrees to execute all documentation reasonably requested by the above-described timing rule, would have otherwise been paid since Company to effectuate the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employmentforegoing, or otherwise to mitigate damages, as a condition to receipt authorizes the officers of the benefits described in Sections 10(b)(ii) and 10(b)(iii), and Company to execute all such benefits shall not be reduced or offset by an amounts received by the Executive from any other source, except to the extent provided in Section 10(b)(vii), belowdocumentation on his/her behalf.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Employment Agreement (Dhi Group, Inc.), Employment Agreement (Dhi Group, Inc.)
Severance. In the event that, prior to the end of the Specified Period, (a) the Succession Plan does not occur in accordance with the Merger Agreement, and you resign in accordance with the notice and timing procedures for Constructive Termination in the Severance Plan or (b) you experience a termination of your employment without Cause (as defined in the Severance Plan) or as a result of a Constructive Termination (as defined in the Severance Plan, but subject to the section entitled “Waiver of Constructive Termination” below) (each such termination of employment in clauses (a) and (b), a “Qualifying Termination”), you will be entitled to receive (i) any annual bonus or long-term incentive award earned or accrued for a prior performance period that has not yet been paid, (ii) the greater of (A) an amount equal to the sum of (x) your then applicable base salary through the remainder of the Specified Period; and (y) annual bonuses (based on your target bonus for the year in which the Qualifying Termination occurs) that would have been earned or accrued during the remainder of the Specified Period and (B) an amount equal to two times the sum of your then applicable annual base salary and target annual bonus for the year in which the Qualifying Termination occurs, (iii) the employer portion of the COBRA continuation premium to cover you and your dependents enrolled under the Corporation’s health, vision and dental plans in effect as of the termination date for 12 months and (iv) reimbursement of up to $25,000 of reasonable and well-documented expenses directly relating to outplacement counselling services obtained by you during the 18-month period following your termination date. The amounts in clauses (ii) and (iii) will be payable ratably over six months, in accordance with the Corporation’s normal payroll practices, commencing with the payroll period immediately following the date on which the Release Requirements of Section 9(a) of the Severance Plan are satisfied. The reimbursements in clause (iv) shall be made as soon as practicable after submission of appropriate expense reports with the Corporation, but in no event later than the end of the taxable year following the year in which such expense was incurred. In the event you experience a termination of employment due to your death or Disability (as defined in the Severance Plan), you will be entitled to receive a lump sum cash payment on the 60th day following your termination date, subject to compliance with the Release Requirements in Section 3.4(c) of the Employment Agreement, equal to the sum of (1) the Accrued Obligations (as defined in the Employment Agreement) and (2) 12 times the employer portion of the monthly COBRA continuation premium to cover you and your dependents enrolled under the Corporation’s health, vision and dental plans in effect as of the termination date. You hereby acknowledge and agree that no severance benefits or payments will be due to you under Section 3 of the Employment Agreement or Section 4 of the Severance Plan in the event of any termination of your employment following the Executive’s employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 Closing Date. Amounts under this letter agreement that are conditioned 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 satisfaction of the Company (not including any severanceRelease Requirements will be paid or will commence, separation pay, or supplemental unemployment benefit plan)if at all, in accordance with the terms of this letter agreement but in no event later than 75 days following your termination date and only if such plan or policy (the “Accrued Benefits”).
(ii) Release Requirements have been satisfied prior to such date. In the event of termination that the period for satisfying the Release Requirements of the Executive’s employment by reason of death, Severance Plan or under the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Employment 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable calendar year and ends in a second taxable calendar year, any payment that is conditioned on the satisfaction of such payments or benefits requirement shall not commence until in the second taxable calendar year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Merger Agreement (Crossfirst Bankshares, Inc.), Merger Agreement (First Busey Corp /Nv/)
Severance. (i) In the event lieu of any termination of the Executive’s employment for any reason, the Executive (severance pay or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 severance benefits otherwise payable to the date of termination consistent with Company Employee under any plan, policy, and (E) any benefits, including any continuation program or conversion rights, provided under any employee benefit plan or policy arrangement of the Company or its subsidiaries, the following shall apply:
(not including any severance, separation pay, or supplemental unemployment benefit plan), in accordance a) If there is a Termination (as herein defined) of the Employee’s employment with the terms of such plan or policy (the “Accrued Benefits”).
(ii) In the event of termination of the Executive’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during the any time within twelve (12) months after the occurrence of a Change of Control pursuant to Section 10(a)(v(as herein defined), such Employee shall be entitled to receive a lump-sum severance payment equal to (i) one hundred percent (100%) of such employee’s then current salary plus (ii) the Company shall amount of such employee’s target bonus for the current calendar year (A) pay or provide or, if higher, the amount of the bonus attributable to a calendar year’s service which was paid to the Executive Employee immediately prior to the Accrued Benefits, (B) pay Change of Control). All outstanding Stock Options granted to the Executive a pro-rata annual bonus in respect Employee which are not vested and exercisable as of the fiscal year in which the effective date of termination occurs Termination shall become vested and exercisable as of such date and shall remain exercisable for the periods prescribed in the Stock Option Plan. The Employee, such Employee’s spouse and eligible dependents will continue to be provided with medical and dental benefits for the twelve (determined based 12)-month period following such Employee’s Termination on actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue basis as provided to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other active employees of the Company) for a period of . Following such twelve (12) months from 12)-month period, the effective date Employee, such Employee’s spouse and eligible dependents will begin eligibility for continuation of such termination, medical and (D) provide the Executive, at the Company’s expense, dental coverage in accordance with senior executive level outplacement services for a period of twelve (12) months from the date of termination, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 4980B of the Executive’s employmentInternal Revenue Code of 1986, 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, as amended (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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 “ReleaseCode”). Subject The Employee shall have no duty to Section 11 below, the Severance Benefits will begin mitigate damages by seeking other employment. The Company shall have no right to be paid or provided ten (10) days after the Release becomes irrevocable (or offset hereunder with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments compensation or benefits shall not commence until received by the second taxable year. The initial payment will include Employee from or in connection with any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date employment subsequent to such Employee’s Termination of the Executive’s cessation of employment.
B. The Executive’s continued compliance employment with the provisions of Sections 5, 6, 7 and 8 of this AgreementCompany.
(vib) The Executive shall If the Employee voluntarily terminates employment with the Company for any reason other than “Good Reason” (as herein defined) during the twelve (12)-month period following a Change of Control as described in Section 2(a) below, the Employee will not be required entitled to seek any severance payment or accept other employment, or otherwise to mitigate damages, as a condition to receipt acceleration of the benefits 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 vesting of any other source, except to the extent provided in Section 10(b)(vii), belowunvested Stock Options.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Employment Agreement (Dice Holdings, Inc.), Employment Agreement (Dice Holdings, Inc.)
Severance. Each Kraft Transferee who is involuntarily separated from a member of the Kraft Group within two years after his or her transfer date (each such two year period, a “Protection Period”), shall be eligible to receive a payment equal to the sum of:
(i) In the event of any termination severance or other amounts payable by such member of the Executive’s employment for any reasonKraft Group to such Kraft Transferee, the Executive (which severance or his or her estate) other amount shall be entitled no less than that paid to any employee of that member similarly situated in age, seniority or job responsibility (each, a “Kraft Severance Payment”); and
(ii) the excess, if any, of: (A) his any severance or her Base Salary other amounts that would have been payable by the member of the Altria Group from which the Kraft Transferee transferred if the Kraft Transferee had remained in the employ of such member of the Altria Group through the date of terminationhis or her involuntary separation (determined based on the Altria workforce reduction practices in effect on the date of the involuntary separation, which practices shall in no event be less favorable than the practices in effect on the date of transfer); over (B) the value of his or her accrued but unused vacation and paid time off through the date of terminationKraft Severance Payment (each, (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 an “Accrued BenefitsAltria Excess Severance Payment”).
(ii; provided that a Kraft Transferee shall not be entitled to any benefit under this Section 3.1(g) In the event of termination of the Executive’s employment by reason of death, the Company shall pay or provide to the Executive’s estateif: (A) the Accrued Benefits, Kraft Transferee is involuntarily separated because of misconduct or violation of any Kraft Group policy or procedure as determined by the appropriate member of the Kraft Group; or (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive Kraft Transferee voluntarily 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance employment with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees a member 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 Kraft Group. The member of the Executive’s employment, all payments hereunder Kraft Group from which the Kraft Transferee is involuntarily separated 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 be solely responsible for the Companypayment of the Kraft Severance Payment. The payments and benefits described in Sections 10(b)(ii) and 10(b)(iii), other than the Accrued Benefits, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case member of the ExecutiveAltria Group from which the Kraft Transferee transferred shall be solely responsible for the payment of the Altria Excess Severance Payment. Kraft will calculate and notify Altria in writing of the amount of the Kraft Severance Payment and Altria will calculate and notify Kraft in writing of the amount of the Altria Excess Severance Payment as soon as practicable following such Kraft Transferee’s death, his/her estate’s) execution and delivery involuntary termination. In order to receive the Company and the expiration of all applicable statutory revocation periods, by the sixtieth (60th) day following the effective date payment of his or her termination of employment, of Altria Excess Severance Payment the Kraft Transferee must execute a general release of claims against the Company and its affiliates substantially in the form attached hereto as Exhibit A (the “Release”). Subject to Section 11 below, the Severance Benefits will begin to be paid or agreement provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employmentby Altria.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Employee Matters Agreement (Kraft Foods Inc), Employee Matters Agreement (Altria Group, Inc.)
Severance. (ia) In the event of any your termination of employment from the Executive’s employment Company by reason of your death, Disability, voluntary resignation without Good Reason or by the Company for any reasonCause, the Executive (or his or her estate) shall you will be entitled to receive (Ai) his or her any unpaid Base Salary through the date of termination, (B) the value of his or her accrued but unused vacation and paid time off through the date of termination, (Cii) except in the case of your termination by the Company for Cause, any bonus Annual Bonus earned in a prior but unpaid with respect to the fiscal year but not yet paid ending on or preceding the date of termination, payable at the same time as it would have been paid provided you had not undergone a termination of employment; (Diii) reimbursement of all in accordance with applicable Company policy for any unreimbursed business expenses properly incurred prior to through the date of termination consistent termination; (iv) any accrued but unused vacation time in accordance with Company policy, policy and (Ev) all other payments, benefits or fringe benefits (excluding any severance or termination benefits) to which you shall be entitled under the terms of any applicable compensation arrangement or benefit, including any continuation equity or conversion rights, provided under any employee fringe benefit plan or policy of the Company program or grant or this Agreement (not including any severancecollectively, separation pay, or supplemental unemployment benefit plan), in accordance with the terms of such plan or policy (Sections 9(a)(i) through 9(a)(v) hereof shall be hereafter referred to as the “Accrued Benefits”). In addition, in the event of your termination of employment from the Company by reason of your death or Disability, you will also be entitled to receive a pro rata Annual Bonus (based on the number of days of employment in the calendar year in which such termination occurs) based on actual Company performance through the applicable performance period, payable the same time as the Annual Bonus would otherwise have been paid provided there had been no termination of employment during such calendar year (a “Pro Rata Bonus”).
(iib) In the event of your termination of the Executive’s employment by reason of death, from the Company shall pay by you for Good Reason or provide by the Company without Cause (each, a “Qualifying Termination”) during the two (2)-year period following the Closing, you will be entitled to the Executive’s estate: receive (Ai) the Accrued Benefits, (B) the Executive’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, (Cii) an amount equal to one (1) times the Executivesum of (x) your base salary, at the rate then in effect on your date of termination, plus (y) your Target Bonus, payable in equal installments over the twelve-month period following your termination of employment in accordance with the Company’s Target Bonus for the fiscal year of termination pro-rated through payroll practices in effect on the date of your termination of employment, and (determined based on iii) a Pro Rata Bonus. Thereafter, in the number event of days that the Executive is employed by your Qualifying Termination, you will receive severance benefits from the Company in such year) and paid promptly following such termination, and (D) continued health benefits for accordance with the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees severance practices of the Company, but, in any event, a total amount no less than (i) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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, (Bii) pay an amount equal to one (1) times the Executive a pro-rata annual bonus in respect sum of the fiscal year in which the effective date of termination occurs (determined based on actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if anyx) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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 Executiveyour base salary, at the Company’s expense, with senior executive level outplacement services for a period of twelve (12) months from the rate then in effect on your date of termination, using plus (y) your Target Bonus and (iii) a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any eventPro Rata Bonus.
(ivc) Except as expressly provided Payment of all amounts described in this Section 10(b), upon the termination of the Executive’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), 9 other than the Accrued Benefits, Benefits (the “Severance BenefitsPayments”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the Executive’s death, his/her estate’s) execution and delivery shall only be payable if you deliver to the Company and do not revoke a general release of claims in favor of the expiration Company in substantially the form of all applicable statutory revocation periodsExhibit B attached hereto. Such release shall be executed and delivered (and no longer subject to revocation, by if applicable) within sixty (60) days following termination. To the extent payment of any amount of the Severance Payments constitutes “nonqualified deferred compensation” for purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), any such payment scheduled to occur during the first sixty (60) days following the termination of employment shall not be paid until the sixtieth (60th) day following the effective date of his or her such termination of employment, employment and shall include payment of a general release of claims against the Company and its affiliates substantially in the form attached hereto as Exhibit A (the “Release”). Subject to Section 11 below, the Severance Benefits will begin any amount that was otherwise scheduled to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employmentprior thereto.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Employment Agreement (Styron Canada ULC), Employment Agreement (Trinseo S.A.)
Severance. (ia) Although nothing in this Section 2 shall be construed to alter the at-will nature of employment as set forth in Section 1 above, if Executive is terminated by the Company without Cause or resigns for Good Reason, Executive will be paid a lump sum amount equal to two times Executive’s then-current annual salary (the “Salary Severance”), in addition to all other accrued entitlements such as unpaid salary and accrued vacation, if any. If Executive is terminated by the Company without Cause or resigns for Good Reason, the Company will also provide Executive with outplacement services for up to six months by a provider selected and paid for by the Company in an amount not to exceed $20,000; Executive shall not be entitled to cash in lieu of outplacement services. If Executive is terminated by the Company without Cause, resigns for Good Reason, retires, dies, or resigns as a result of a disability, Executive will be entitled to receive a pro rata bonus payment (based on the actual performance of the Company over the entire year), at such time bonuses are paid to the Company’s senior executives generally, based on the number of months worked in the applicable fiscal year of the Company (the “Bonus Severance”). Executive will have no duty to mitigate. As a precondition to the Company’s obligation to pay Executive severance of two years of salary and a pro rata bonus, Executive agrees to execute and deliver to the Company a fully effective general release in the form attached to this Agreement as Attachment A within 30 days following the date Executive’s employment with the Company terminates. Company shall pay Executive the Salary Severance on the date which is the later of ten days after the date on which it receives the signed release (so long as such release has become effective and irrevocable in accordance with its terms), subject to Section 17, and the Company shall pay the Bonus Severance on the date which is the later of ten days after the date on which it receives the signed release (so long as such release has become effective and irrevocable in accordance with its terms) or the date on which Company pays bonuses to Company’s senior executives generally for the applicable year (such date to be in the calendar year following the year in which the separation from service occurs), subject to Section 17. Executive understands and agrees that Executive shall not be entitled to any other severance benefit not set forth in this Section 2, and accordingly Executive expressly acknowledges that the Company will not be obligated to make 401(k) contributions following the termination of Executive’s employment.
(b) In the event of any that Executive is qualified for and elects COBRA coverage under the Company’s health plans after a termination without Cause or a resignation for Good Reason, the Company will continue to pay its share of the Executive’s employment for any reason, the cost of premiums under such plans until Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 payis reemployed, or supplemental unemployment benefit plan)for a period of two years, whichever occurs first, payable in accordance with the terms of such plan Company’s normal benefit practices. Upon a termination for Cause and upon a resignation without Good Reason (other than due to death, disability or policy (the “Accrued Benefits”retirement), except as set forth in Section 2(a) above and/or one or more separate written agreements between Company and Executive, all unearned compensation, benefits and unvested options shall be forfeited.
(iic) In Notwithstanding the event terms of termination any stock incentive plan of the Executive’s employment Company or stock option or stock appreciation right agreement to which Executive is a party, if Executive is terminated by reason of death, the Company shall pay without Cause or provide to the Executive’s estate: (A) the Accrued Benefitsresigns for Good Reason, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), for a period of six (6) months from and on the effective date of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at subject to a “trading blackout” or “quiet period” with respect to the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), common shares or if the Executive terminates this Agreement during Company determines, upon the twelve (12) months after a Change advice of Control pursuant to Section 10(a)(v)legal counsel, 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 that on actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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 termination Executive may not to trade in the Company’s expensecommon shares due to Executive’s possession of material non-public information, with senior executive level outplacement services in each case, which restriction or prohibition continues for a period of twelve (12) months at least twenty consecutive calendar days, the Company hereby agrees that Executive shall be permitted to pay the exercise price and/or any tax withholding obligation payable in connection with the exercise of any of Executive’s then outstanding and exercisable Company stock options and/or stock appreciation rights by either tendering common shares of the Company then owned by Executive and/or instructing the Company to withhold from the common shares otherwise issuable upon exercise such stock options and/or stock appreciation rights a number of common shares having a fair market value on the date of terminationexercise equal to the exercise price and/or tax withholding obligation.
(d) For purposes of this Agreement, using the Company shall have “Cause” to terminate Executive’s services in the event of any of the following acts or circumstances: (i) Executive’s conviction of a reputable provider selected felony or entering a plea of guilty or nolo contendere to any crime constituting a felony (other than a traffic violation or by reason of vicarious liability); (ii) Executive’s substantial and repeated failure to attempt to perform Executive’s lawful duties to the Executive Company, except during periods of physical or mental incapacity; (iii) Executive’s gross negligence or willful misconduct with respect to any material aspect of the business of the Company or any of its affiliates, which gross negligence or willful misconduct has a material and demonstrable adverse effect on the Company; (iv) Executive’s material violation of a Company policy resulting in a material and demonstrable adverse effect to the Company or an affiliate, including but not limited to a violation of the Company’s consentCode of Business Conduct and Ethics; or (v) any material breach of this Agreement or any material breach of any other written agreement between Executive and the Company’s affiliates governing Executive’s equity compensation arrangements (i.e., which any agreement with respect to Executive’s stock, stock appreciation right and/or stock options of any of the Company’s affiliates); provided, however, that Executive shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or deemed to have been terminated for Cause in the case of the Executive’s deathclause (ii), his/her estate’s(iii), (iv) execution and delivery or (v) above, unless any such breach is not fully corrected prior to the Company and the expiration of all applicable statutory revocation periods, by the sixtieth thirty (60th30) day following the effective date of his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) calendar day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date delivery to Executive of the ExecutiveCompany’s cessation written notice of employment.
B. The Executive’s continued compliance with its intention to terminate his employment for Cause describing the provisions of Sections 5, 6, 7 and 8 of this Agreementbasis therefore in reasonable detail.
(vie) The Executive will be deemed to have a “Good Reason” if Executive terminates his employment because of (i) a material diminution of Executive’s duties as Chief Financial Officer, (ii) the failure by any successor of the Company to assume in writing the Company’s obligations under this Agreement, (iii) the breach by the Company in any respect of any of its obligations under this Agreement, and, in any such case (but only if correction or cure is possible), the failure by the Company to correct or cure the circumstance or breach on which such resignation is based within 30 days after receiving notice from Executive describing such circumstance or breach in reasonable detail, (iv) the relocation of Executive’s primary office location of more than 50 miles that places the primary office farther from Executive’s residence than it was before, or (v) the imposition by the Company of a requirement that Executive report to a person other than the Chief Executive Officer of the Company or the Chairman of the Board. Executive shall not be required have a Good Reason to seek or accept other employmentresign if the Company suspends Executive due to an indictment of Executive on felony charges, or otherwise provided that the Company continues to mitigate damagespay Executive’s salary and benefits. No Salary Severance is payable after Executive turns age 65, as regardless of whether Executive has a condition Good Reason for resignation and regardless whether the Company has Cause to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), belowterminate Executive.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Severance Agreement (Herbalife Ltd.), Severance Agreement (Herbalife Ltd.)
Severance. Provided Executive signs and delivers, and does not revoke, a general release in a form acceptable to the Company in its sole discretion, (ix) In the event of any termination of the Executive’s employment for any reason, the Executive (or his or her estate) shall be entitled to receive a severance payment equal to two (A2) his or her Base Salary through weeks of base salary for every full year that Executive was employed by the date Group, subject to a minimum payment of termination, twenty-six (B26) the value weeks base salary and a maximum payment of his or her accrued but unused vacation and paid time off through the date of termination, fifty-two (C52) 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 policyweeks base salary, and (Ey) 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 employment by reason of deathif Executive properly elects COBRA coverage, the Company shall pay or provide will make payments to the insurance provider(s) equal to the amount due for Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), COBRA coverage payments for a period of six (6) months from the effective date of such termination, (C) an amount time equal to the number of weeks of Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the severance payments or until Executive is eligible to receive health benefits under another medical plan, whichever is sooner (by way of example only, if Executive is entitled to a severance payment equal to thirty weeks base salary because he/she has been employed by the Company in such yearfor fifteen (15) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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)years, the Company will make monthly payments to the COBRA insurance provider for the first thirty weeks of COBRA coverage, assuming Executive has executed and not revoked the release and has not otherwise become eligible to receive benefits under another medical plan). Executive agrees to give the Company notice immediately if he/she becomes eligible to receive benefits under another medical plan. The release agreement shall (A) pay or provide be provided to the Executive during the Accrued Benefits, (B) pay the Executive a pro-rata annual bonus in respect first month of the fiscal year in which the effective date of termination occurs (determined Notice Period. The severance payment based on actual performance tenure with the Company shall be paid in a lump sum within ten (10) days following the expiration of the Notice Period, provided that Executive has executed the release agreement, returned it to the Company, and allowed the number of days the Executive is employed revocation period therefor to expire, by the Company in such fiscal year)end of the Notice Period. The release agreement will provide, with such annual bonus (if any) paid among other things, for the general release of any and all claims that Executive may have against the Group and its officers, directors, employees and agents, whether known or unknown, and whether at the same time it would have otherwise been paid absent the Executive’s termination of employmentcommon law or arising under any statute, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (including but not less frequently than monthly)limited to statutes relating to discrimination and whistleblowing, and shall continue also will require Executive to keep the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees terms of the Company) for a period of twelve (12) months from the effective date of such terminationrelease confidential, 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, using a reputable provider selected subject to appropriate carve outs as required by the law. Executive with the Company’s consent, which shall not be unreasonably withheldentitled to any other payment of any kind, provided that such outplacement expenses shall not exceed $25,000 in any event.
except (iva) Except as expressly provided in this Section 10(b)Agreement, upon the termination of the Executive’s employment, all payments hereunder shall cease.
(vb) The payments earned wages or accrued vacation time that remains due and benefits described in Sections 10(b)(ii) and 10(b)(iii) are in lieu ofpayable, and not in addition to, any other severance arrangement maintained by the Company. The payments and (c) benefits described in Sections 10(b)(ii) and 10(b)(iii), other than the Accrued Benefits, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation that Executive is entitled to accrued benefits under the express terms of health insurance any plan governing such benefits and to the extent that such benefits cannot be cancelled under this Section 10(b) will be accomplished by either the Company’s waiver or payment terms of the relevant plan documents or applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will ceaselaw.
Appears in 2 contracts
Sources: Employment Agreement (FGL Holdings), Employment Agreement (Fidelity & Guaranty Life)
Severance. (i) In the event lieu of any termination of the Executive’s employment for any reason, the Executive (severance pay or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 severance benefits otherwise payable to the date of termination consistent with Company Employee under any plan, policy, and (E) any benefits, including any continuation program or conversion rights, provided under any employee benefit plan or policy arrangement of the Company or its subsidiaries, the following shall apply:
(not including any severance, separation pay, or supplemental unemployment benefit plan), in accordance a) If there is a Termination (as herein defined) of the Employee’s employment with the terms of such plan or policy (the “Accrued Benefits”).
(ii) In the event of termination of the Executive’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during the any time within twelve (12) months after the occurrence of a Change of Control pursuant to Section 10(a)(v(as herein defined), such Employee shall be entitled to receive a lump-sum severance payment equal to (i) fifty percent (50%) of such employee’s then current salary plus (ii) fifty percent (50%) of the amount of such employee’s most recently paid regular bonus (excluding special bonuses) attributable to a full calendar year’s service to the Company shall (A) pay or provide or, if higher, the amount of the bonus attributable to a calendar year’s service which was paid to the Executive Employee immediately prior to the Accrued Benefits, (B) pay Change of Control). All outstanding Stock Options granted to the Executive a pro-rata annual bonus in respect Employee which are not vested and exercisable as of the fiscal year in which the effective date of termination occurs Termination shall become vested and exercisable as of such date and shall remain exercisable for the periods prescribed in the Stock Option Plan. The Employee, such Employee’s spouse and eligible dependents will continue to be provided with medical and dental benefits for the twelve (determined based 12)-month period following such Employee’s Termination on actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue basis as provided to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other active employees of the Company) for a period of . Following such twelve (12) months from 12)-month period, the effective date Employee, such Employee’s spouse and eligible dependents will begin eligibility for continuation of such termination, medical and (D) provide the Executive, at the Company’s expense, dental coverage in accordance with senior executive level outplacement services for a period of twelve (12) months from the date of termination, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 4980B of the Executive’s employmentInternal Revenue Code of 1986, 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, as amended (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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 “ReleaseCode”). Subject The Employee shall have no duty to Section 11 below, the Severance Benefits will begin mitigate damages by seeking other employment. The Company shall have no right to be paid or provided ten (10) days after the Release becomes irrevocable (or offset hereunder with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments compensation or benefits shall not commence until received by the second taxable year. The initial payment will include Employee from or in connection with any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date employment subsequent to such Employee’s Termination of the Executive’s cessation of employment.
B. The Executive’s continued compliance employment with the provisions of Sections 5, 6, 7 and 8 of this AgreementCompany.
(vib) The Executive shall If the Employee voluntarily terminates employment with the Company for any reason other than “Good Reason” (as herein defined) during the twelve (12)-month period following a Change of Control as described in Section 2(a) below, the Employee will not be required entitled to seek any severance payment or accept other employment, or otherwise to mitigate damages, as a condition to receipt acceleration of the benefits 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 vesting of any other source, except to the extent provided in Section 10(b)(vii), belowunvested Stock Options.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Employment Agreement (Dice Holdings, Inc.), Employment Agreement (Dice Holdings, Inc.)
Severance. Provided (i) In the event Executive executes and delivers to the Company, within twenty-one (21) days (or forty-five (45) days if such longer period is required under applicable law) after the Effective Date of Termination, a written release in substantially the form attached hereto as Exhibit B (the “Release”) and (ii) the Executive does not revoke such Release during any applicable revocation period, the Company shall cause the payments and benefits described in this Section 6 (the “Severance Payments”) to be made in connection with the termination of the Executive’s employment for any reasonwith the Company during the Employment Term, unless such termination (i) is by the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her accrued but unused vacation and paid time off through the date of termination, (C) except in the case of termination Company 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 occurs by reason of the Executive’s employment death or Disability or (iii) is by reason the Executive under circumstances that do not constitute a Resignation for Good Reason. Severance Payments due and payable to the Executive by the Company in accordance with this Section 6 shall be determined as follows:
(i) In lieu of deathany further salary payments to the Executive for periods subsequent to the Effective Date of Termination, the Company shall pay or provide cause cash severance payment to be made to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, Executive 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, (C) an aggregate amount equal to the two (2) times such Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Annual Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, Salary (the “Cash Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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 “ReleasePayments”). Subject to Section 11 belowSuch Cash Severance Payments shall be made in twenty-four (24) successive equal monthly installments on the fifteenth day of each month beginning with the fifteenth day of the first calendar month, within the Severance Benefits will begin to be paid or provided ten sixty (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (7060) day period following the date of the Executive’s Separation from Service by reason of such termination begins of employment, that is coincident with or next following the date on which the required Release first becomes effective following the expiration of all applicable revocation periods, but in one taxable year no event shall such initial payment be made later than the last business day of such sixty (60)-day period on which the Release is so effective. Should the fifteenth day of any such calendar month not be a business day, then the payment for that month shall be made on the first business day thereafter. The monthly Cash Severance Payments to which Executive becomes entitled in accordance with this Section 6(c)(i) shall be treated as a right to a series of separate payments for purposes of Section 409A of the Code.
(ii) Provided the Executive and ends in his or her spouse and eligible dependents elect to continue medical care coverage under the Company’s group health care plans pursuant to their COBRA rights, the Company shall reimburse the Executive for the costs the Executive incurs to obtain such continued coverage (collectively, the “Coverage Costs”), to the extent those Coverage Costs exceed the amount payable at the time by a second taxable yearsimilarly-situated active employee for the same level of coverage, until the earlier of (x) twenty-four (24) months after the Effective Date of Termination or (y) the first date on which the Executive is covered under another employer’s health benefit program without exclusion for any pre-existing medical condition. During the COBRA continuation period, such payments coverage shall be obtained under the Company’s group health care plans. Following the completion of the COBRA continuation period, such coverage shall continue under the Company’s group health plans or benefits one or more other plans providing equivalent coverage. In order to obtain reimbursement for the reimbursable portion of the Coverage Costs under the applicable plan or plans, the Executive must submit appropriate evidence to the Company of each periodic payment within sixty (60) days after the required payment date for those Coverage Costs, and the Company shall within thirty (30) days after such submission reimburse the Executive for the reimbursable portion of that payment. To the extent the Executive incurs any other medical care expenses reimbursable pursuant to the coverage obtained hereunder, the Executive shall submit appropriate evidence of each such expense to the plan administrator within sixty (60) days after incurrence of that expense and shall receive reimbursement of the documented expense within thirty (30) days after such submission or after any additional period that may be required to perfect the claim. During the period such medical care coverage remains in effect hereunder, the following provisions shall govern the arrangement: (a) the amount of Coverage Costs or other medical care expenses eligible for reimbursement in any one calendar year of such coverage shall not commence until affect the second amount of Coverage Costs or other medical care expenses eligible for reimbursement in any other calendar year for which such reimbursement is to be provided hereunder; (ii) no Coverage Costs or other medical care expenses shall be reimbursed after the close of the calendar year following the calendar year in which those Coverage Costs or expenses were incurred; and (iii) the Executive’s right to the reimbursement of such Coverage Costs or other medical care expenses cannot be liquidated or exchanged for any other benefit. To the extent the reimbursed Coverage Costs are treated as taxable yearincome to the Executive, the Company shall report the reimbursement as taxable W-2 wages and collect the applicable withholding taxes, and the resulting tax liability shall be the Executive’s sole responsibility. As a condition to the foregoing medical care coverage, the Executive hereby agrees to provide prompt written notice to the Company of any medical care coverage to which he or she becomes entitled under another employer’s health benefit plan.
(iii) The Executive shall also be entitled to continued coverage, for a period of twenty-four (24) months following the Effective Date of Termination, under the Company’s employee group term life insurance and disability insurance plans at the level in effect for the Executive on the Effective Date of Termination. The initial payment will include any Severance Benefits thatCompany shall, but prior to the last day of each month during such twenty-four (24)-month period, pay to the applicable insurance companies the amount by which the aggregate premium required to provide Executive with such coverage for the abovemonth exceeds the monthly amount that a similarly-described timing rulesituated active employee is required to pay in order to obtain such coverage, would have as measured as of the Effective Date of Termination (the “Monthly Benefit Payments”); provided, however, that the Company’s obligation to make such Monthly Benefit Payments shall cease in the event Executive fails to pay his or her portion of the aggregate monthly premium for such coverage. Except to the extent a later payment date is otherwise been paid since required pursuant to Section 6(h)(i) of this Restated Agreement, the Company shall make the initial Monthly Benefit Payment on the earlier of (A) the fifteenth day of the first calendar month, within the sixty (60) day period following the date of the Executive’s cessation Separation from Service, that is coincident with or next following the date on which the required Release first becomes effective following the expiration of employment.
B. all applicable revocation periods or (B) the last business day of such sixty (60)-day period on which the Release is so effective. Each Monthly Benefit Payment shall be treated as a right to a separate payment for purposes of Code Section 409A and shall constitute taxable income to Executive The Executive’s continued compliance with Company shall collect the provisions of Sections 5, 6, 7 and 8 of applicable withholding taxes from the Cash Severance Payments or any other amounts due Executive under this Restated Agreement.
(viiv) The Executive All unvested long-term incentive grants, if any, outstanding on the Effective Date of Termination shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverageimmediately vest. To the extent Executive (any of the grants are stock options, each of those options shall remain exercisable for the underlying shares of Common Stock until the expiration or his eligible dependents, as applicable) sooner termination of that option in accordance with the terms of the applicable stock option agreement. To the extent any of the grants are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan)restricted stock unit awards, the Company’s obligation shares of Common Stock underlying each such award shall be issued at the time or times specified in the applicable award agreement, subject to continue group health coverage under this any required deferral pursuant to the provisions of Section 10(b) will cease6(g)(i).
Appears in 2 contracts
Sources: Employment Agreement (PharmaNet Development Group Inc), Employment Agreement (PharmaNet Development Group Inc)
Severance. (ia) In the event of addition to any termination of the Executive’s employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her accrued but unused vacation unpaid base salary 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on of employment, which shall be payable to Employee regardless of the number of days that the Executive is employed by the Company in such year) and paid promptly following reasons for such termination, and (D) continued health benefits for the Executiveif Employee’s eligible dependents at the Company’s expense (or such portion thereof as employment under this Agreement is then funded terminated by the Company for other employees than Cause, then Employee shall be entitled to receive his salary until the scheduled expiration of this Agreement; provided, however, that during such time Employee shall seek other employment (the Company) for the period described above in clause (B"Severance Benefit").
(iiib) In Notwithstanding anything in this Agreement to the contrary, Employee shall not be entitled to any of the Severance Benefit described herein if (i) in the event of a termination Change of Control (A) Employee is offered Comparable Employment by a Successor Company (as defined below); or (B) Employee accepts employment with a Successor Company (other than transition services that may be requested of Employee by the Company pursuant to Section 10(a)(iiiSuccessor Company), regardless of whether that employment constitutes Comparable Employment or (ii) if the Executive terminates this Agreement during the twelve (12) months after Employee accepts employment with another company on comparable terms following termination for other than Cause. The term “Successor Company” means, upon a Change of Control pursuant Control, a successor to Section 10(a)(v), the Company shall (A) pay as a result of the acquisition of securities, a merger, liquidation, reorganization, consolidation or provide sale of assets of the Company, or otherwise a successor to the Executive the Accrued Benefits, (B) pay the Executive Company as a pro-rata annual bonus in respect result of the fiscal year in which the effective date Change of termination occurs (determined based on actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the ExecutiveControl. Severance benefits shall be payable only upon Employee’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance employment with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which as provided herein. In no event shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or have any liability for severance with respect to any amount payable under Section 10(b)(iii)(B)Employee’s termination of employment with a Successor Company. For purposes of this Agreement, at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits "Comparable Employment" shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but mean an offer to continue this Agreement for the above-described timing ruleremaining term, or an offer for a new contract incorporating substantially all of the terms of this Agreement as they would have otherwise been paid since apply as of the date of the Executiveclosing of a transaction which constitutes a Change of Control, including, at least, Employee’s cessation of employmentthen current base salary, formula bonus, perquisites and benefits.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Employment Agreement (Priviam, Inc.), Employment Agreement (Priviam, Inc.)
Severance. If the Company terminates the employment of Employee without Cause (as provided in Section 4(b)), provided that such termination of employment constitutes a “separation from service” with the Company as such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto (“Separation from Service”), and only in such event, Employee shall be eligible to receive his then-current Base Salary payable in the form of salary continuation (“Severance”) for the longer of (a) three (3) months, or (b) the balance of the Initial Period (as defined below), so long as Employee does not violate any of the terms of Section 7 or Section 8. Employee’s eligibility for Severance is subject to and conditioned on Employee’s execution of and compliance with the terms of a general release and waiver in the form acceptable to the Company (the “Separation and Release Agreement”). For purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), each payment of Severance that Employee may be eligible to receive under this Agreement shall be treated as a separate and distinct payment. Should the Company learn that Employee has violated any of the terms of Section 7 or Section 8 during the salary continuation period (the “Severance Period”), then the Company may immediately cease such payments and Employee must, on demand, repay to the Company the payments for each month in which Employee breached any of the terms of Section 7 or Section 8. Furthermore, such Severance shall be reduced by any remuneration paid to Employee because of Employee’s employment or self-employment during the Severance Period. Employee shall promptly report all such remuneration to the Company in writing. Employee shall not be entitled to any Severance if: (i) In the event of any termination of the ExecutiveEmployee’s employment is terminated for any reasonCause (in accordance with Section 4(c)), the Executive by death (as provided in Section 4(d)) or his or her estate) shall be entitled to by disability (A) his or her Base Salary through the date of termination, (B) the value of his or her accrued but unused vacation and paid time off through the date of termination, (C) except as provided 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 paySection 4(e)), or supplemental unemployment benefit plan)(ii) Employee chooses not to sign the Separation and Release Agreement, or chooses to revoke the Separation and Release Agreement in accordance with the terms thereof once signed. For purposes of such plan or policy (the “Accrued Benefits”).
(ii) In the event of termination of the Executive’s employment by reason of deaththis Section 5, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the term “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Employment Agreement (Activecare, Inc.), Employment Agreement (Activecare, Inc.)
Severance. (i) In Without limiting the event of any termination generality of the Executive’s employment foregoing provisions of this Section 5.5, Purchaser shall have in effect for any reasontwelve (12) months following the Closing Date severance plans, practices and policies applicable to each Transferred Employee that are not less favorable in the Executive aggregate (or his or her estate) other than with respect to severance pay, which shall be entitled at least equal to (Athat in effect prior to Closing) his or her Base Salary through the date of terminationthan such plans, (B) the value of his or her accrued but unused vacation practices 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 policies applicable to such Transferred Employee immediately 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”)Closing Date.
(ii) Purchaser shall be responsible, and shall indemnify and hold harmless Seller and its Affiliates, for all Deal Related Severance up to a maximum amount in the aggregate equal to the Severance Cap. Thereafter, Purchaser, on the one hand, and Seller, on the other hand, shall each be responsible for fifty percent (50%) of the Deal Related Severance in excess of the Severance Cap. Purchaser shall be solely responsible for the costs of all Termination Amounts for Transferred Employees to the extent such amounts do not constitute Deal Related Severance and are triggered as a result of actions taken by Purchaser after the applicable Transition Date (or, in the case of any OUS Conveyed Company SSE, the date that is fifteen (15) days after the applicable SSE Reference Date for such OUS Conveyed Company SSE) of such Transferred Employee (and such amounts shall not count towards the Severance Cap, other than, for the avoidance of doubt, Continued Vesting, which decreases the Severance Cap as set forth in the definition thereof). Seller shall be solely responsible, and shall indemnify and hold harmless Purchaser and its Affiliates, for all Termination Amounts payable to Shared Service Employees to the extent not expressly Purchaser’s responsibility pursuant to the immediately preceding sentence, it being understood and agreed that Purchaser shall only be responsible for Termination Amounts for OUS Conveyed Company SSEs that remain employed with Purchaser fifteen (15) days after their applicable SSE Reference Date. Notwithstanding anything to the contrary in this Agreement, Purchaser shall be solely responsible and shall indemnify and hold harmless Seller and its Affiliates for (x) Deal Related Severance and (y) the Intrinsic Value (determined as of the date of determination) of the portion of any equity or equity-based awards held by any Business Employee that automatically vest under a Benefit Plan by reason of the termination of his or her employment with Seller or any of its Affiliates (including termination of a Business Employee’s employment by Seller or any of its Affiliates following rejection by such Business Employee of an offer of employment from the Purchaser) in connection with the transactions contemplated by this Agreement, including the Restructuring, in each of the foregoing cases, to the extent resulting from Purchaser’s failure to comply with the provisions of Section 5.5 and such amounts shall not count towards the Severance Cap; provided, that, Purchaser’s obligation under the immediately preceding clause (y) shall be payable in cash to such Business Employee (or, at the option of Purchaser, to Seller in lieu thereof, in which case Seller shall automatically assume any and all obligations to such Business Employee with respect to such vesting) in full satisfaction of Purchaser’s obligations under such clause (and in no event shall such clause (y) require Purchaser to issue any equity or equity-based awards). In the event of termination that it is determined that Purchaser or its Affiliates have paid for Deal Related Severance or Termination Amounts in excess of the Executive’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthlyamount for which Purchaser is responsible under this Section 5.5(e)(ii), Seller shall, promptly after such determination, reimburse and pay over, and shall indemnify and hold harmless Purchaser and its Affiliates, for a period of six (6) months from the effective date amount of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B)excess.
(iii) In Seller shall encourage each Business Employee and each Non-OUS Conveyed Company SSE who is offered employment by Purchaser or its Affiliates in connection with the event transactions contemplated by this Agreement to accept such offers and not make any commitment to any Business Employee or Non-OUS Conveyed Company SSE who is offered employment by Purchaser or its Affiliates in connection with the transactions contemplated by this Agreement about continuing the employment of such Person with Seller or its Affiliates following the Closing (or, in the case of a termination by Non-OUS Conveyed Company SSE, the applicable SSE Reference Date for such Non-OUS Conveyed Company pursuant SSE) or otherwise knowingly discourage such Person from accepting such offers; provided, that, nothing herein shall be interpreted as requiring Seller or any of its Affiliates to Section 10(a)(iiiprovide any Business Employee or Non-OUS Conveyed Company SSE with any additional compensation or benefits to incent such Person to accept such offer of employment. Further, subject to applicable Law or employment Contract terms existing prior to the date hereof, and except as required to provide any necessary notice of termination, Seller shall not, without the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed), (x) employ or if continue to employ or subsequently employ, in each case on or before the Executive terminates this Agreement during the twelve date that is nine (129) months after the Closing Date, any Business Employee who rejects any such offer and does not receive any Deal Related Severance or Termination Amounts in connection with the transactions contemplated by this Agreement or the Restructuring or (y) employ or continue to employ or subsequently employ, in each case on or before the date that is nine (9) months after the Closing Date, any Business Employee who receives Deal Related Severance or Termination Amounts in connection with the transactions contemplated by this Agreement or the Restructuring. To the extent permissible under applicable Law, Seller and Purchaser intend that the transactions contemplated by this Agreement not constitute a Change separation, termination or severance of Control pursuant employment of any Transferred Employee (or any Business Employee) prior to Section 10(a)(v)or upon the occurrence of the applicable Transition Date therefor, including for purposes of any Benefit Plan that provides for separation, termination or severance benefits, and that such employee will have continuous and uninterrupted employment immediately before and immediately after the Company Transition Date, and Seller and Purchaser shall, and shall (A) pay or provide cause their respective Affiliates to, comply with any requirements under applicable Law to ensure the same, subject to the Executive terms and conditions of this Agreement. Without limiting the Accrued Benefitsforegoing provisions, (B) pay Seller and Purchaser shall, and shall cause their respective Affiliates to, use their respective reasonable best efforts to cooperate, communicate and assist each other in eliminating or reducing any Business Employee’s right to receive any Deal Related Severance in connection with the Executive transactions contemplated by this Agreement or the Restructuring; provided, that, nothing herein shall be interpreted as requiring any Party or any of its Affiliates to provide any Business Employee with any additional compensation or benefits to eliminate or reduce any Business Employee’s right to receive any Deal Related Severance in connection with the transactions contemplated by this Agreement or the Restructuring. To the extent permissible under applicable Law, prior to the Closing, Purchaser will use its reasonable best efforts to provide Seller a pro-rata annual bonus in respect list of the fiscal year in which the effective date of termination occurs (determined based on actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus any Business Employees (if any) paid at that Purchaser would prefer remain employees of Seller following the same time it would have Closing (and, thus, not offered employment (or otherwise been paid absent hired) by Purchaser or its Affiliates in connection with the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthlytransactions contemplated by this Agreement), and shall continue the Executive’sSeller may, in its sole and his or her eligible dependents’absolute discretion, health insurance benefits at the Company’s expense elect that any such Business Employees (or such portion thereof as is then funded by the Company for other employees one or more of the Companythem) 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin cease to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but deemed “Business Employees” for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 all purposes of this Agreement.
, in which case all obligations of Purchaser or its Affiliates with respect thereto shall cease (vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits described in Sections 10(b)(iiincluding any obligation respecting Deal Related Severance) and 10(b)(iii)Seller may, and at its sole option, continue to employ such benefits shall not be reduced or offset by an amounts received by the Executive from any other source, except to the extent provided in Section 10(b)(vii), belowemployees.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (TE Connectivity Ltd.), Stock and Asset Purchase Agreement (CommScope Holding Company, Inc.)
Severance. (ia) In Subject to Section 9.1(a), from and after the event Closing Date and continuing until the expiration of the applicable Post-Closing Protected Period, Buyer shall, or shall cause an Affiliate to, provide any Continuing Employee who experiences an actual termination of employment by Buyer or its applicable Affiliate under circumstances that would have entitled such Continuing Employee to severance benefits had he or she remained an employee of Seller or one of its Affiliates under the Executive’s employment for any reasonseverance plans of the applicable Seller Entity or Acquired Company, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of terminationas applicable, (B) the value of his or her 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 effective immediately prior to the date of termination consistent with Company policyhereof and set forth on Schedule 9.1(a) (each, a “Seller Severance Plan” and (E) any benefitscollectively, 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“Seller Severance Plans”), in accordance with the terms of such plan or policy (the “Accrued Benefits”).
(ii) In the event of termination of the Executive’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not severance benefits no less frequently favorable than monthly), for a period of six (6) months from the effective date of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company those set forth in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above applicable Seller Severance Plan that would apply in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during the twelve (12) months after of employment “In Connection with a Change of Control pursuant to Section 10(a)(v), in Control” (as defined in 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 actual performance and the number of days the Executive is employed by the Company in such fiscal yearapplicable Seller Severance Plan), with all such annual bonus severance benefits to be conditioned upon execution by each such Continuing Employee of a valid release of claims for the benefit of Seller and Buyer, on a form acceptable to Seller and Buyer. Buyer shall provide Seller with notice of all such terminations and provide documentation of compliance with this Section 9.3(a), including copies of executed releases of claims, within sixty (if any60) paid at the same time it would have otherwise been paid absent the Executive’s days of each such termination of employment. With respect to the obligation in the Seller Severance Plans to provide compensation to a Continuing Employee for any Remaining Awards, (C) continue to pay the Executive his or her Base Salary, in accordance with Buyer will provide such compensation directly as part of Buyer’s discharge of its normal payroll practices (but not less frequently than monthlyseverance obligations under this Section 9.3(a), and subject to reimbursement from Seller within thirty (30) days of Buyer providing such documentation, which reimbursement shall continue include (x) the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for a period of twelve (12) months from the effective date aggregate amount of such termination, compensation paid to the applicable Continuing Employee pursuant to this Section 9.3(a) and (Dy) provide the Executiveemployer portion of any payroll, at the Company’s expenseemployment or other Taxes, with senior executive level outplacement services for a period of twelve (12) months from the date of terminationif any, using a reputable provider selected by the Executive with the Company’s consent, which shall not required to be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any eventpaid thereon.
(ivb) Except as expressly provided in this Section 10(b)Notwithstanding the foregoing, upon the termination Seller shall reimburse Buyer or its Affiliates within thirty (30) days of Buyer or its Affiliates providing documentation of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease[****].
Appears in 2 contracts
Sources: Purchase Agreement (Cree Inc), Purchase Agreement (Cree Inc)
Severance. (i) In the event of any termination of the Executive’s If your employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed terminated by the Company in such year) and paid promptly following such terminationwithout Cause or you resign for Good Reason (each, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iiidefined below), or if the Executive terminates this Agreement during the twelve (12) months after a Change of Control pursuant subject 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the Executive’s death, his/her estate’s) your 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 his or her termination of employment, of a general release of all claims against the Company and its affiliates substantially in a form acceptable to the form attached hereto as Exhibit A Company (a “Release”) that becomes effective and irrevocable within sixty (60) days following such termination of employment, then you will be entitled to the following: (i) continued payment of your base salary at the rate in effect immediately prior to your date of termination during the period commencing on your termination date and ending on the six (6)-month anniversary of your termination date (the “ReleaseSeverance Period”). Subject , payable in substantially equal installments in accordance with the Company’s standard payroll policies, less applicable withholdings, with such installments to Section 11 below, commence on the Severance Benefits will begin to be paid or provided ten (10) days after first payroll date following the date the Release becomes effective and irrevocable (or with respect the first installment to include any amount payable under Section 10(b)(iii)(Bthat would have been paid had the Release been effective and irrevocable on your termination date; (ii) if you elect to receive continued healthcare coverage pursuant to the provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), at the Company shall directly pay, or reimburse you for, the premium for you and your covered dependents through the earlier of (A) the end of the Severance Period and (B) the date you and your covered dependents, if any, become eligible for healthcare coverage under another employer’s plan(s) (and you agree to promptly notify the Company of such later time as specified thereineligibility); , provided that if the seventy Company determines that it cannot provide the foregoing benefit without potentially violating applicable law (70including, without limitation, Section 2716 of the Public Health Service Act) day period following or incurring an excise tax, then, in lieu of the foregoing benefit, a taxable amount equal to each remaining Company subsidy payment will thereafter be paid to you in substantially equal monthly installments; (iii) each outstanding equity award held by you will automatically vest with respect to that number of shares that would have vested during the Severance Period had your employment continued; and (iv) each of your options to purchase the Company’s common stock that is vested as of your termination date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence (after giving effect to any applicable accelerated vesting) will remain exercisable until the second taxable year. The initial payment will include any Severance Benefits that, but for earlier of the abovethirty-described timing rule, would have otherwise been paid since six (36)-month anniversary of your termination date or the original expiration date of the Executive’s cessation option. In addition, if your employment with the Company is terminated by the Company without Cause or you resign for Good Reason, in each case, within twelve (12) months following a Change in Control (as defined below), subject to your execution and delivery to the Company of a Release that becomes effective and irrevocable within sixty (60) days following such termination of employment, then each outstanding equity award held by you will automatically vest in full.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Confirmatory Employment Letter (Aligos Therapeutics, Inc.), Confirmatory Employment Letter (Aligos Therapeutics, Inc.)
Severance. (ia) In the event of any termination of the Executive’s employment for any reason, the Executive (or his or her estate) Employee shall be entitled to (A) his or her Base Salary through receive from the date of termination, (B) the value of his or her accrued but unused vacation and paid time off through the date of termination, (C) except Company severance benefits in the case amount provided in subsection b. below, if in connection with a Change in Control or within one year after a Change in Control, Employee's employment with the Company is terminated; provided, however, that Employee will not be entitled to any severance benefit if Employee's termination of termination employment is (i) for Cause, or (ii) initiated by Employee for other than Good Reason. Notwithstanding any bonus earned other provision of this Agreement, the consummation of a Transaction in itself shall not be deemed a termination of employment entitling Employee to severance benefits hereunder even if such event results in Employee being employed by a different entity which assumes the Company's obligations under this Agreement.
b) If Employee's services are terminated, entitling Employee to severance benefits pursuant to subsection a. above, Employee shall be entitled to the following benefits:
i) During the Severance Period, the Company shall continue to pay to Employee the annual base salary payable to Employee at the rate and according to the payment schedule in place immediately prior year but not yet paid to the termination of employment, subject to federal and state withholding, FICA, FUTA and withholding for all other applicable taxes;
ii) During the Severance Period, the Company shall continue on behalf of Employee (and Employee's dependents and beneficiaries), life insurance, disability insurance, medical and dental benefits and any/all other benefits which were being provided to Employee at the time of termination of employment and the expense shall be allocated between the Company and Employee on the date of termination, (D) reimbursement of all business expenses properly incurred same basis as prior to the date of termination consistent with Company policy, and of employment. The benefits provided pursuant to this subsection (Eii) any benefits, including any continuation or conversion rights, shall be no less favorable to Employee than the coverage provided to Employee under any employee benefit plan or policy the plans providing such benefits at the time notice of termination was given to Employee. The obligation 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”).
under this subsection (ii) In shall be limited to the event extent that Employee obtains any such benefits pursuant to a subsequent employee's benefit plans, in which case the Company may reduce the coverage of any benefit it is required to provide Employee under this subsection (ii) as long as the aggregate coverage of the combined benefit plans is no less favorable to Employee, in terms of amounts and deductibles and costs to Employee, than the coverage required to be provided under this subsection (ii) as long as the aggregate coverage of the combined benefit plans is no less favorable to Employee, in terms of amounts and deductibles and costs to Employee, than the coverage required to be provided under this subsection (ii). This subsection (ii) shall not be interpreted so as to limit any benefits to which Employee (or Employee's dependents or beneficiaries) are entitled under any of the Company's employee benefit plans, programs or practices following Employee's date of termination of employment. The provision of continued benefits to Employee under this subsection (ii) shall not deprive Employee of any independent statutory right to continue benefits coverage pursuant to Sections 601 through 606 of the Executive’s employment by reason Employee Retirement Income Security Act of death1974, as amended; and
iii) On the date of termination of employment, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) Employee an amount equal to the Executive’s Target Bonus bonus(es), if any, Employee would have received had Employee remained in the Company's employment during the Severance Period, calculated using the targeted bonus rate established by the Company under any applicable employment agreement or in its bonus plan then in effect (or, if no rate was established for the fiscal year period in question, the targeted bonus rate established for the prior period) and assuming that all performance criteria would have been met, provided, however, that if the targeted bonus rate is based on performance over a period of termination pro-rated through time which ends after the date of termination Severance Period, then the amount paid to Employee under this subsection (determined iii) shall be prorated based on the number of days that the Executive is Employee was employed by the Company during the applicable bonus period plus the number of days in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B)Severance Period.
(iiiiv) In the event the Employee is employed under any employment agreement with the Company which also provides for severance payments upon termination of Employee's employment under certain circumstances, and if Employee is entitled to receive severance payments and/or benefits thereunder, then the severance payments and/or benefits provided hereunder shall be reduced on a termination dollar-for-dollar basis by the Company pursuant to Section 10(a)(iii), or if severance payments and/or benefits provided under the Executive terminates this Agreement during employment agreement; it being 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 intention of the fiscal year in which parties hereto that the effective date Employee shall only be entitled to receive "one" set of termination occurs (determined based on actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’s employment, all payments hereunder shall cease.
(v) The severance payments and benefits described in Sections 10(b)(ii) and 10(b)(iii) are in lieu of, and not in addition to, under 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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employmentcircumstances.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Retention Agreement (Golf Galaxy, Inc.), Retention Agreement (Golf Galaxy, Inc.)
Severance. (i) In the event of any termination of the Executive’s employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 employment (i) by reason the Company without Cause or (ii) by Executive for Good Reason, and subject to Executive’s signing, not revoking, and letting become effective a general release of deathclaims with the Company in a form satisfactory to the Company no later than 60 days following such termination (or the shorter period specified by the Company in the release, but not less than 30 days), Executive shall receive, as partial consideration for the covenants of Executive set forth in the agreement referenced in Section 6 hereof, a severance payment (the “Severance Benefit”) in an amount equal to twenty-four (24) month’s base salary plus 75% of Executive’s target cash bonus for the year in which the termination of Executive’s employment occurs or, if such target cash bonus has not yet been determined as of the date of Executive’s termination, 75% of Executive’s target cash bonus for the year immediately preceding the year in which the termination occurs. No release of claims is required as a condition to these payments if the Company fails to provide the form of release it is seeking by the tenth business day following Executive’s termination of employment. The Company shall pay or provide the Severance Benefit to the ExecutiveExecutive in semi-monthly installments to be paid on each of the 15th and last business day of each calendar month, each such semi-monthly installment to be equal to one-half of a month’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salarybase salary, in accordance with its normal the Company’s customary payroll practices (but not less frequently than monthly)practices, with payment beginning in the first payroll after the release becomes effective; provided, however, that if the last day of the 60 day period for a period an effective release falls in the calendar year following the year of six (6) months from the effective Executive’s date of such termination, (C) an amount equal the severance payments will be paid or begin no earlier than January 1 of such subsequent calendar year. Executive shall also continue to the Executive’s Target Bonus for the fiscal year be entitled to receive all Company medical and dental insurance, life insurance and disability insurance benefits to which Executive was entitled as of termination pro-rated through the date of termination (determined based the “Continuing Benefits”), subject to the terms of all applicable benefit plans and to the extent such benefits can be provided to non-employees (or to the extent such benefits cannot be provided to non-employees, then the Company shall pay to Executive on each of the 15th and last business day of each month during the applicable period the amount that the Company was paying to the applicable third party for such benefits immediately prior to the termination of Executive’s employment), at the same average level and on the number same terms and conditions which applied immediately prior to the date of days that the Executive is employed by the Company in such year) and paid promptly following such Executive’s termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense shorter of (i) twenty-four (24) months, or such portion thereof as is then funded by the (ii) until Executive obtains comparable coverage from another employer. The Company for other employees of the Companyshall also pay to Executive any payments due pursuant to Section 5(g) for the period described above in clause (B).
(iii) hereof. In the event of a termination by that the Company elects not to renew this Agreement pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during the twelve (125(a) months after a Change of Control pursuant to Section 10(a)(v)hereof and employment then ends, 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 actual performance Severance Benefit and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any event.
(iv) Except as expressly provided Continuing Benefits specified above in this Section 10(b)5(e) shall apply but, upon wherever “twenty-four (24) months” appears, it shall be amended to read as “twenty-one (21) months,” provided further that such cessation of employment will only be covered by Section 5(e) if Executive is then otherwise willing and able to continue employment on the same conditions as in the expiring term. If Executive is not then willing and able to continue, the termination of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will ceasetreated like a resignation without Good Reason.”
Appears in 2 contracts
Sources: Executive Employment Agreement (Icagen Inc), Executive Employment Agreement (Icagen Inc)
Severance. (i) In the event of any termination of the Executive’s employment If Employee is asked to resign or is terminated as City Manager, then Employee shall be paid for any reasonaccrued, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of terminationbut unused, (B) the value of his or her accrued but unused vacation and paid time off through the date of terminationadministrative leave, (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 accrued sick leave. Subject to the date provisions of termination consistent with Company policyCalifornia Government Code section 53260 and 53261, and (E) any Employee shall also be eligible to receive two severance benefits: first, 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 employment by reason of death, the Company shall pay or provide a cash payment equivalent to the Executivesum of Employee’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), for a period of then-current monthly base salary multiplied by six (6) months from the effective date of such terminationmonths, (C) with an amount equal to the Executive’s Target Bonus additional one month for the fiscal every full year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of service thereafter up to a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for a period maximum of twelve (12) months from the effective date of such terminationseverance; and second, and (D) provide the Executiveprovided Employee timely elects COBRA coverage, reimbursement for Employee’s monthly COBRA-eligible health benefits, at the Company’s expensethen-current coverage levels, for six (6) months, with senior executive level outplacement services an additional one month for every full year of service thereafter up to a period maximum of twelve (12) months from of reimbursed COBRA coverage, and subject to Employee’s payment of the date 2% administrative fee. Eligibility for severance benefits is expressly conditioned upon Employee’s execution of termination(i) a waiver and release of any and all of Employee’s claims against City, using its Councilmembers, officers, and employees, and (ii) a reputable provider selected covenant not to sue any of those parties. The parties intend this provision to comply with California Government Code section 53260, which limits severance benefits to an amount equal to the Employee’s monthly salary multiplied by the Executive number of months remaining on the unexpired term of the Agreement. The parties also intend this term to comply with the Company’s consentprovisions of California Government Code section 53261, which shall not limits health benefits, which may be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any event.
(iv) Except as expressly provided in this Section 10(b), upon continued for a maximum number of months remaining on the termination unexpired term of the Executive’s employment, all payments hereunder shall cease.
Agreement or until Employee finds other employment (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 Companywhichever occurs first). The payments and benefits described cash payment will be made in Sections 10(b)(ii) and 10(b)(iii), other than the Accrued Benefits, (the “Severance Benefits”) are conditioned a lump sum based on clauses (A) and (B) below:
A. The Executive’s (or timing set forth in the case of the Executive’s death, his/her estate’s) execution waiver and delivery to the Company release. All normal payroll taxes and the expiration of all applicable statutory revocation periods, withholdings as required by the sixtieth (60th) day following the effective date of his or 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”). Subject to Section 11 below, the Severance Benefits will begin to law shall be paid or provided ten (10) days after the Release becomes irrevocable (or made with respect to any amount payable amounts paid under Section 10(b)(iii)(B), at such later time as specified therein); provided that if this section. Employee expressly agrees to provide notice to the seventy City within five (705) day period following the date business days of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits described in Sections 10(b)(ii) and 10(b)(iii)accepting employment elsewhere, and such benefits shall not be reduced or offset by an amounts received by the Executive from any other source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the CompanyCity’s obligation to continue group pay for any further health coverage under this Section 10(b) will ceasebenefits shall terminate upon receiving notice that Employee has accepted such alternative employment.
Appears in 2 contracts
Sources: City Manager Employment Agreement, City Manager Employment Agreement
Severance. (ia) In Subject to Section 7.1(a) and Section 7.2(b), during the event of applicable Post-Closing Protected Period, the Buyer shall, or shall cause an Affiliate to, provide any Transferred Employee located in the United States who experiences a termination of employment by or with the Executive’s employment for any reason, Buyer or its applicable Affiliate under circumstances that entitle or would have entitled such Transferred Employee to severance benefits under the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through applicable severance plan of the date of termination, (B) the value of his or her 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 applicable Seller Entity effective immediately prior to the date of termination consistent with Company policyhereof and set forth on Schedule 7.2 (each, and a “Seller Severance Plan”) (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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company a “Qualifying Termination”), with cash severance benefits no less favorable than those set forth in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above applicable Seller Severance Plan that would apply in clause (B).
(iii) In the event of a termination of employment “In Connection with a Change in Control” (as defined in the applicable Seller Severance Plan) (the “Specified Severance Benefits”), with all such cash severance benefits to be conditioned upon execution by such Transferred Employee of a valid release of claims for the benefit of the Seller and the Buyer (or an applicable Affiliate of the Buyer), on a form reasonably acceptable to the Seller and the Buyer. The Buyer shall provide the Seller with notice of all Qualifying Terminations and provide documentation of compliance with this Section 7.2, including copies of executed releases of claims, within sixty (60) days of each such Qualifying Termination. Notwithstanding anything to the contrary in this Agreement, the provision of severance benefits pursuant to this Section 7.2 shall exclude any entitlements or obligations to accelerate the vesting of any equity or equity-based awards of the Buyer then-held by the Company pursuant applicable Transferred Employee.
(b) Notwithstanding anything to the contrary in 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)(v7.1(a), the Company Seller shall reimburse the Buyer and its Affiliates for the aggregate Specified Severance Benefits and the employer-portion of taxes associated therewith, payable to or for the benefit of any Transferred Employees (Aexcept for the employees set forth on Schedule 1.1(i)) pay or who experience a Qualifying Termination during the first [***] of the applicable Post-Closing Protected Period (the “Seller-Covered Qualifying Termination Period” and a Qualifying Termination during the Seller-Covered Qualifying Termination Period, a “Seller-Covered Qualifying Termination”). In connection with the foregoing, (i) within thirty (30) days following the Seller-Covered Qualifying Termination Period, the Buyer shall provide to the Executive Seller an invoice setting out 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 actual performance aggregate Specified Severance Benefits and the number employer-portion of days taxes associated therewith, payable as a result of all Seller-Covered Qualifying Terminations (the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly“Seller Reimbursement Amount”), and (ii) the Seller shall continue reimburse Buyer for the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense Seller Reimbursement Amount within forty-five (or such portion thereof as is then funded by the Company for other employees of the Company45) for a period of twelve (12) months from the effective date days following receipt 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any eventinvoice.
(iv) Except as expressly provided in this Section 10(b), upon the termination of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Asset Purchase Agreement (MACOM Technology Solutions Holdings, Inc.), Asset Purchase Agreement (Wolfspeed, Inc.)
Severance. (a) If the Employment Period is terminated by the Company without Cause or by you for Good Reason (as defined in Section 5(h) below), you will be entitled to receive (i) In the event of any termination of the Executive’s employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her your Base Salary as in effect at the time of such termination to the extent such amount has accrued through the date of terminationTermination Date (as defined in Section 5(e) below) and remains unpaid, (B) the value of his or her 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 any fully earned and declared but unpaid Performance Bonus as of the Executive’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued BenefitsTermination Date, (B) the Executive’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, (Ciii) an amount equal to the Executive’s Target Bonus for the fiscal year sum of termination pro-rated through Base Salary you would have received from the date of such termination (determined based on through the number of days that then applicable Expiration Date, which shall be payable in the Executive is employed by same amounts and at the Company in such year) and paid promptly following such termination, same intervals as if the Employment Period had not ended and (Div) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof any unpaid Expenses as is then funded by the Company for other employees of the Company) for Termination Date. Upon delivery of the period payments and benefits described above in clause (B).
(iii) In the event of a termination by the Company pursuant to this 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)(v5(a), the Company shall have no further obligation to you under this letter agreement or otherwise with respect to your employment with the Company. The Company’s obligation to make the payments to you described in clause (Aiv) pay or provide of this Section 5(a) is conditioned upon your executing and delivering, no later than 14 days following the Termination Date, a release relating 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 actual performance and the number of days the Executive is employed your employment by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees favor of the Company) for a period of twelve (12) months from the effective date of such termination, its Affiliates and (D) provide the Executivetheir respective stockholders, at the Company’s expenseofficers, with senior executive level outplacement services for a period of twelve (12) months from the date of terminationmembers, using a reputable provider selected by the Executive with the Company’s consentmanagers, which shall not be unreasonably withhelddirectors, provided that such outplacement expenses shall not exceed $25,000 in any event.
(iv) Except as expressly provided in this Section 10(b)employees, upon the termination of the Executive’s employment, all payments hereunder shall cease.
(v) The payments subsidiaries 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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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 A.
(b) If the “Release”). Subject to Section 11 belowEmployment Period is terminated by the Company for Cause or by you other than for Good Reason, the Severance Benefits Company will begin pay you (i) your Base Salary as in effect at the time of such termination to be paid the extent such amount has accrued through the Termination Date and remains unpaid, (ii) any fully earned and declared but unpaid Performance Bonus as of the Termination Date, and (iii) any unpaid Expenses as of the Termination Date. Upon delivery of the payment described in this Section 5(b), the Company will have no further obligation to you under this letter agreement or provided ten (10) days after the Release becomes irrevocable (or otherwise with respect to your employment with the Company.
(c) If the Employment Period is terminated upon your Disability (as defined in Section 5(g) below) or death, the Company will pay you or your estate or succession, whichever is applicable, (i) your Base Salary as in effect at the time of such termination to the extent such amount has accrued through the Termination Date and remains unpaid, (ii) any amount payable under Section 10(b)(iii)(B)fully earned and declared but unpaid Performance Bonus as of the Termination Date, at such later time and (iii) any unpaid Expenses as specified therein); of the Termination Date.
(d) Except as otherwise required by law or as specifically provided that herein, all of your rights to salary, severance, fringe benefits, bonuses and any other amounts hereunder (if any) accruing after the seventy (70) day period following termination of the Employment Period will cease upon the earlier of the date of such termination begins and your last day of active service. In the event the Employment Period is terminated, your sole remedy, and the sole remedy of your successors, assigns, heirs, representatives and estate, will be to receive the payments described in one taxable year and ends this letter agreement.
(e) Any termination of the Employment Period by the Company (other than termination upon your death) or by you must be communicated by written notice (in either case, a second taxable year“Notice of Termination”) to you. For purposes of this letter agreement, such payments or benefits shall not commence until “Termination Date” means (i) if the second taxable year. The initial payment will include any Severance Benefits thatEmployment Period is terminated by your death, but for the above-described timing rule, would have otherwise been paid since the date of your death, (ii) if the Executive’s cessation Employment Period is terminated upon your Disability, by the Company or by you, the date specified in the Notice of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
Termination (vi) The Executive shall which may not be required earlier than the date of such Notice). Notwithstanding anything contained herein to seek or accept other employmentthe contrary, or otherwise to mitigate damages, as a condition to receipt any termination of the benefits described in Sections 10(b)(ii) and 10(b)(iii), and such benefits shall not Employment Period by you must be reduced or offset by an amounts received by the Executive from any other source, except communicated to the extent provided in Section 10(b)(vii), belowCompany no less than 30 days prior to the intended Termination Date.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Employment Agreement (Tyme Technologies, Inc.), Employment Agreement (Tyme Technologies, Inc.)
Severance. If (ia) In the event of any termination of the ExecutiveEmployee’s employment is terminated by the Company without Cause or by the Employee for any reason, the Executive Good Reason or (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (Bb) the value Employee is not offered continuing employment on substantially the same terms as set forth herein in connection with a Change of his or her accrued but unused vacation and paid time off through the date of terminationControl, (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)then, in accordance with the terms of such plan or policy (the “Accrued Benefits”).
(ii) In the event of termination of the Executive’s employment by reason of deatheither case, the Company shall pay or provide to the Executive’s estateEmployee, as severance, an aggregate amount equal to: (Ai) his then current base salary during the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), for a twelve-month period of six (6) months from commencing on the effective date of such termination, the termination of Employee’s employment relationship with the Company (Cthe “Severance Period”) and (ii) an amount equal to twelve times the Executive’s Target Bonus monthly amount that the Company paid for the Employee’s participation in the Company’s health insurance plan during the month immediately preceding the Termination Date. All of the foregoing amounts shall be payable pro rata over the Severance Period in accordance with the Company’s normal payroll practices. Additionally, any bonus amounts earned as of the end of a fiscal year but not paid as of the Termination Date shall be paid to the Employee in a manner consistent with payment of such bonus amounts to the Company’s other senior management employees notwithstanding the subsequent termination pro-rated through of the date of termination (determined based on the number of days that the Executive is employed Employment Period. All benefits, including health insurance benefits, offered by the Company shall cease as of the Termination Date and the Employee may elect to continue his participation in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the CompanyEmployee’s expense (or such portion thereof as is then funded pursuant to COBRA by notifying the Company in the time specified in the COBRA notice to be delivered by the Company for other employees to the Employee as of the Company) for a period of twelve (12) months from the effective date of such termination, Termination Date 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, using a reputable provider selected by the Executive with Employee paying the Company’s consentmonthly premium himself. Notwithstanding the foregoing, which the Company shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in make any event.
(iv) Except as expressly provided in payments pursuant to this Section 10(b), upon 1.2 to the termination of Employee unless and until (x) the Executive’s employment, all payments hereunder shall cease.
(v) The payments Employee executes 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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the Executive’s death, his/her estate’s) execution and delivery delivers to the Company and the expiration of all applicable statutory revocation periods, by the sixtieth (60th) day following the effective date of his or her termination of employment, of a general release of claims against the Company and its affiliates in substantially in the form of Exhibit A attached hereto as Exhibit A (the “Release”). Subject , (y) such Release is executed and delivered to Section 11 below, the Severance Benefits will begin to be paid or provided ten Company within twenty-one (1021) days after the Termination Date and (z) all time periods for revoking such Release becomes irrevocable have lapsed (or with respect the “Release Period”). Once the executed Release is delivered to the Company, if any payments pursuant to this Section 1.2 had been deferred pending the receipt of such Release, the first payment following such delivery shall be in an amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if equal to the seventy (70) day total amount to which the Employee would otherwise have been entitled to during the period following the date of termination if such deferral had not occurred; provided, however, that in the event that the Release Period begins in one taxable calendar year and but ends in a second taxable subsequent calendar year, such payments or benefits then the first payment hereunder shall not commence until in no event be made prior to the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date first day of the Executive’s cessation of employmentsubsequent calendar year.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Severance Agreement (Carbonite Inc), Severance Agreement (Carbonite Inc)
Severance. (i) In the event of any termination of the ExecutiveIf Employee’s employment is terminated by Employer without Cause (as defined in Section 9(b)(ii) hereof) or by Employee for any reasonGood Reason (as defined in Section 9(b)(i) hereof), subject to Employee’s compliance with the Executive (or his or her estateobligations in Sections 3(c), 4, 6 and 7 hereof, and subject to Section 15(c) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her accrued but unused vacation and paid time off through the date of termination, (C) except hereof in the case of amounts in excess of the Separation Pay Limit to the extent that the Separation Pay Limit is applicable, Employee shall receive payment of an amount equal to the quotient obtained by dividing (i) Employee’s Base Salary and Target Cash Incentive (as defined below) for the year of termination (less any salary and incentive award payments paid to Employee for Causeemployment during any period following the delivery or receipt of a written notice of termination), any bonus earned in a prior year by (ii) twelve (12) (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 planas an employee), for each month in the Severance Period (as defined in Section 3(b) hereof) following such termination of employment (the “Basic Severance”), payable in accordance with the terms of such plan or policy (the “Accrued Benefits”).
(ii) In the event of termination of the Executive’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal regular payroll practices (of Employer, but not less frequently than monthly), for a period of six (6) months from the effective date of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses the first payment shall not exceed $25,000 in any event.
(iv) Except as expressly provided in this Section 10(b), upon be made on the termination of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the Executive’s death, his/her estate’s) execution and delivery to the Company and the expiration of all applicable statutory revocation periods, by first payroll period after the sixtieth (60th) day following such termination and shall include payment of any amounts that would otherwise be due prior thereto. Notwithstanding the effective date of his foregoing, if Employee’s employment is terminated by Employer without Cause or her termination of employment, of by Employee for Good Reason within twenty-four (24) months after a general release of claims against the Company and its affiliates substantially Change in Control (as defined in the form attached hereto as Exhibit A Markit Ltd. 2014 Equity Incentive Award Plan (the “ReleasePlan”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if Employee shall receive additional monthly severance payments equal to the seventy quotient obtained by dividing (70i) day Employee’s Base Salary and Target Cash Incentive for the year of termination (less any salary and incentive award payments paid to Employee for employment during any period following the date of termination begins in one taxable year and ends in a second taxable year, such payments delivery or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits described in Sections 10(b)(ii) and 10(b)(iiia written notice of termination), and such benefits shall by (ii) twelve (12) (but not be reduced or offset by as an amounts received by the Executive from any other source, except to the extent provided in Section 10(b)(viiemployee), below.
for twelve (vii12) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.months,
Appears in 2 contracts
Sources: Employment Agreement (IHS Markit Ltd.), Employment Agreement (IHS Markit Ltd.)
Severance. (i) In the event of any termination of the Executive’s employment for any reasonthat Employee is subject to an Other Involuntary Termination, the Executive (or his or her estate) Employee shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 employment by reason of death, the Company shall pay or provide to the Executive’s estatereceive severance benefits as follows: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), severance payments for a period of six (6) months from the effective date of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during the [twelve (12) months (if Employee is a SVP)] [eighteen months (18) (if Employee is the CEO)] 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 the termination occurs (determined based on actual performance and for purposes of this Section 2(b)[(i)][(ii)], the number of days “Severance Period”) equal to the Executive is employed by base salary which Employee was receiving immediately prior to the Company in such fiscal year)Other Involuntary Termination, with such annual bonus (if any) which payments shall be paid at during the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, Severance Period in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) standard payroll practices; and (B) below:
A. The Executive’s (or in payment by the case Company of the Executivefull cost of the health insurance benefits provided to Employee and Employee’s deathspouse and dependents, his/her estate’s) execution and delivery as applicable, immediately prior to the Company Other Involuntary Termination pursuant to the terms of COBRA or other applicable law through the earlier of the end of the Severance Period 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 Section 2(b)(i)[ and the expiration of all applicable statutory revocation periods, by 2(b)(ii)] shall be paid or commence to be paid on the sixtieth (60th) day following the effective date of his or her Employee’s termination of employment, of a general employment (subject to Employee’s release of claims against the Company and its affiliates substantially as set forth in Section 1(a)). Notwithstanding the foregoing, in the form attached hereto event the Board of Directors concludes in its reasonable judgment that the provision of subsidized COBRA benefits to Employee could cause the Company to become subject to excise tax as Exhibit A (a result of the “Release”). Subject to Section 11 belowPatient Protection and Affordable Care Act, as amended by the Healthcare Reform Act, the Severance Benefits will begin Company shall pay Employee a monthly amount in cash equal to be paid or provided ten (10the amount of the COBRA subsidy during the period the Company is obligated to provide subsidized COBRA benefits to Employee. In addition, Employee shall receive payment(s) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B)for all salary, at such later time bonuses and unpaid vacation accrued as specified therein); provided that if the seventy (70) day period following of the date of Employee’s termination begins in one taxable year of employment and ends up to three (3) months of outplacement services not to exceed $5,000 per month (with a provider and in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished program selected by the Company, provided Employee commences such services within ninety (90) days of Employee’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health planOther Involuntary Termination date), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Management Continuity Agreement (Assertio Holdings, Inc.), Management Continuity Agreement (Depomed Inc)
Severance. (i) In the event of any termination of the Executive’s employment for any reasonthat Employee is subject to an Other Involuntary Termination, the Executive (or his or her estate) Employee shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 employment by reason of death, the Company shall pay or provide to the Executive’s estatereceive severance benefits as follows: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), severance payments for a period of six (6) months from the effective date of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during the [twelve (12) months (if Employee is not the CEO)] [eighteen months (18) (if Employee is the CEO)] 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 the termination occurs (determined based on actual performance and for purposes of this Section 2(b)[(i)][(ii)], the number of days “Severance Period”) equal to the Executive is employed by base salary which Employee was receiving immediately prior to the Company in such fiscal year)Other Involuntary Termination, with such annual bonus (if any) which payments shall be paid at during the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, Severance Period in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) standard payroll practices; and (B) below:
A. The Executive’s (or in payment by the case Company of the Executivefull cost of the health insurance benefits provided to Employee and Employee’s deathspouse and dependents, his/her estate’s) execution and delivery as applicable, immediately prior to the Company Other Involuntary Termination pursuant to the terms of COBRA or other applicable law through the earlier of the end of the Severance Period 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 Section 2(b)(i)[ and the expiration of all applicable statutory revocation periods, by 2(b)(ii)] shall be paid or commence to be paid on the sixtieth (60th) day following the effective date of his or her Employee’s termination of employment, of a general employment (subject to Employee’s release of claims against the Company and its affiliates substantially as set forth in Section 1(a)). Notwithstanding the foregoing, in the form attached hereto event the Board of Directors concludes in its reasonable judgment that the provision of subsidized COBRA benefits to Employee could cause the Company to become subject to excise tax as Exhibit A (a result of the “Release”). Subject to Section 11 belowPatient Protection and Affordable Care Act, as amended by the Healthcare Reform Act, the Severance Benefits will begin Company shall pay Employee a monthly amount in cash equal to be paid or provided ten (10the amount of the COBRA subsidy during the period the Company is obligated to provide subsidized COBRA benefits to Employee. In addition, Employee shall receive payment(s) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B)for all salary, at such later time bonuses and unpaid vacation accrued as specified therein); provided that if the seventy (70) day period following of the date of Employee’s termination begins in one taxable year of employment and ends up to three (3) months of outplacement services not to exceed $5,000 per month (with a provider and in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished program selected by the Company, provided Employee commences such services within ninety (90) days of Employee’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health planOther Involuntary Termination date), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Management Continuity Agreement (Assertio Therapeutics, Inc), Management Continuity Agreement (Depomed Inc)
Severance. (ia) Although nothing in this Section 4 shall be construed to alter the at-will nature of employment as set forth in Section 1 above, if Executive is terminated by the Company without Cause or resigns for Good Reason, Executive will be paid a lump sum amount equal to two times Executive’s then-current annual salary (the “Salary Severance”), in addition to all other accrued entitlements such as unpaid salary and accrued vacation, if any. If Executive is terminated by the Company without Cause or resigns for Good Reason, the Company will also provide Executive with outplacement services for up to six months by a provider selected and paid for by the Company in an amount not to exceed $20,000; Executive shall not be entitled to cash in lieu of outplacement services. If Executive is terminated by the Company without Cause, resigns for Good Reason, retires, dies, or resigns as a result of a disability, Executive will be entitled to receive a pro rata bonus payment (based on the actual performance of the Company over the entire year), at such time bonuses are paid to the Company’s senior executives generally, based on the number of months worked in the applicable fiscal year of the Company (the “Bonus Severance”). Executive will have no duty to mitigate. As a precondition to the Company’s obligation to pay Executive severance of two years of salary and a pro rata bonus, Executive agrees to execute and deliver to the Company a fully effective general release in the form attached to this Agreement as Attachment A within 30 days following the date Executive’s employment with the Company terminates. Company shall pay Executive the Salary Severance on the date which is the later of ten days after the date on which it receives the signed release (so long as such release has become effective and irrevocable in accordance with its terms), subject to Section 21, and the Company shall pay the Bonus Severance on the date which is the later of ten days after the date on which it receives the signed release (so long as such release has become effective and irrevocable in accordance with its terms) or the date on which Company pays bonuses to Company’s senior executives generally for the applicable year (such date to be in the calendar year following the year in which the separation from service occurs), subject to Section 21. Executive understands and agrees that Executive shall not be entitled to any other severance benefit not set forth in this Section 4, and accordingly Executive expressly acknowledges that the Company will not be obligated to make 401(k) contributions following the termination of Executive’s employment.
(b) In the event of any that Executive is qualified for and elects COBRA coverage under the Company’s health plans after a termination without Cause or a resignation for Good Reason, the Company will continue to pay its share of the Executive’s employment for any reason, the cost of premiums under such plans until Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 payis reemployed, or supplemental unemployment benefit plan)for a period of two years, whichever occurs first, payable in accordance with the terms of such plan Company’s normal benefit practices. Upon a termination for Cause and upon a resignation without Good Reason (other than due to death, disability or policy (the “Accrued Benefits”retirement), except as set forth in Section 4(a) above and/or one or more separate written agreements between Company and Executive, all unearned compensation, benefits and unvested options shall be forfeited.
(iic) In Notwithstanding the event terms of termination any stock incentive plan of the Executive’s employment Company or stock option or stock appreciation right agreement to which Executive is a party, if Executive is terminated by reason of death, the Company shall pay without Cause or provide to the Executive’s estate: (A) the Accrued Benefitsresigns for Good Reason, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), for a period of six (6) months from and on the effective date of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at subject to a “trading blackout” or “quiet period” with respect to the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), common shares or if the Executive terminates this Agreement during Company determines, upon the twelve (12) months after a Change advice of Control pursuant to Section 10(a)(v)legal counsel, 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 that on actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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 termination Executive may not to trade in the Company’s expensecommon shares due to Executive’s possession of material non-public information, with senior executive level outplacement services in each case, which restriction or prohibition continues for a period of twelve (12) months at least twenty consecutive calendar days, the Company hereby agrees that Executive shall be permitted to pay the exercise price and/or any tax withholding obligation payable in connection with the exercise of any of Executive’s then outstanding and exercisable Company stock options and/or stock appreciation rights by either tendering common shares of the Company then owned by Executive and/or instructing the Company to withhold from the common shares otherwise issuable upon exercise such stock options and/or stock appreciation rights a number of common shares having a fair market value on the date of terminationexercise equal to the exercise price and/or tax withholding obligation.
(d) For purposes of this Agreement, using the Company shall have “Cause” to terminate Executive’s services in the event of any of the following acts or circumstances: (i) Executive’s conviction of a reputable provider selected felony or entering a plea of guilty or nolo contendere to any crime constituting a felony (other than a traffic violation or by reason of vicarious liability); (ii) Executive’s substantial and repeated failure to attempt to perform Executive’s lawful duties as contemplated in Section 2 of this Agreement, except during periods of physical or mental incapacity; (iii) Executive’s gross negligence or willful misconduct with respect to any material aspect of the Executive with business of the Company or any of its affiliates, which gross negligence or willful misconduct has a material and demonstrable adverse effect on the Company; (iv) Executive’s material violation of a Company policy resulting in a material and demonstrable adverse effect to the Company or an affiliate, including but not limited to a violation of the Company’s consentCode of Business Conduct and Ethics; or (v) any material breach of this Agreement or any material breach of any other written agreement between Executive and the Company’s affiliates governing Executive’s equity compensation arrangements (i.e., which any agreement with respect to Executive’s stock, stock appreciation right and/or stock options of any of the Company’s affiliates); provided, however, that Executive shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or deemed to have been terminated for Cause in the case of the Executive’s deathclause (ii), his/her estate’s(iii), (iv) execution and delivery or (v) above, unless any such breach is not fully corrected prior to the Company and the expiration of all applicable statutory revocation periods, by the sixtieth thirty (60th30) day following the effective date of his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) calendar day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date delivery to Executive of the ExecutiveCompany’s cessation written notice of employment.
B. The Executive’s continued compliance with its intention to terminate his employment for Cause describing the provisions of Sections 5, 6, 7 and 8 of this Agreementbasis therefore in reasonable detail.
(vie) The Executive will be deemed to have a “Good Reason” if Executive terminates his employment because of (i) a material diminution of Executive’s duties as Chief Operating Officer, (ii) the failure by any successor of the Company to assume in writing the Company’s obligations under this Agreement, (iii) the breach by the Company in any respect of any of its obligations under this Agreement, and, in any such case (but only if correction or cure is possible), the failure by the Company to correct or cure the circumstance or breach on which such resignation is based within 30 days after receiving notice from Executive describing such circumstance or breach in reasonable detail, (iv) the relocation of Executive’s primary office location of more than 50 miles that places the primary office farther from Executive’s residence than it was before, or (v) the imposition by the Company of a requirement that Executive report to a person other than the Chief Executive Officer of the Company or the Chairman of the Board. Executive shall not be required have a Good Reason to seek or accept other employmentresign if the Company suspends Executive due to an indictment of Executive on felony charges, or otherwise provided that the Company continues to mitigate damagespay Executive’s salary and benefits. No Salary Severance is payable after Executive turns age 65, as regardless of whether Executive has a condition Good Reason for resignation and regardless whether the Company has Cause to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), belowterminate Executive.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 2 contracts
Sources: Employment Agreement (Herbalife Ltd.), Employment Agreement (Herbalife Ltd.)
Severance. (i) In If the event of any termination of the Company terminates Executive’s employment (actually and not constructively, except as set forth in Section 4.3) without Cause or if Executive terminates employment for any reasonGood Reason as provided in section 4.3, the and provided that Executive (or his or her estatex) shall be entitled is in material compliance with this Agreement and the Confidentiality Agreement and (y) executes and returns to (A) his or her Base Salary through the date Company a complete release of termination, (B) all claims against the value of his or her accrued but unused vacation Company and paid time off through the date of termination, (C) except in the case of termination for Cause, any bonus earned related persons in a prior year but not yet paid on the date of termination, (D) reimbursement of all business expenses properly incurred prior form acceptable to the date of termination consistent with Company policy, that becomes effective and irrevocable within sixty (E60) 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), for a period of six (6) months from days after the effective date of such terminationtermination (“Termination Date”), the Company shall, in addition to payment of the Accrued Payments:
(Ca) pay severance to Executive in an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during the twelve (12) months of Base Salary at the rate in effect as of the Termination Date, which shall be paid in equal installments in twenty-four (24) substantially equal payments paid on the Company’s regular paydays, commencing on the Termination Date (the “Severance Period”); provided, however, that: (i) the first such payment shall be made on the first payday that is at least sixty (60) days after a Change the Termination Date and shall include all sums that would have been paid had payment commenced on the first payday after the Termination Date; (ii) the Severance Period shall terminate immediately upon Executive’s material breach of Control this Agreement or the Confidentiality Agreement; and (iii) if the sixty-day period within which the release must become effective spans two calendar years, no payment pursuant to this Section 10(a)(v), 4.6.2 shall be made before the Company shall first business day of the second calendar year;
(Ab) pay or provide to Executive an Annual Bonus in the Executive target amount for 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 Terminate Date occurs;
(determined based on actual performance c) provided that Executive timely elects and the number of days the Executive is employed by eligible for Continuation Coverage as defined herein the Company in such fiscal year)shall pay directly to the Company’s COBRA provider or group health plan provider for premiums to continue the medical, with such annual bonus dental and vision insurance coverage (if any) paid at of Executive and Executive’s eligible dependents pursuant to the same time it would have otherwise been paid absent continuation-coverage provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 or comparable state law (“Continuation Coverage”) from the Termination Date through the earlier of (i) the eighteen (18) month anniversary after the Termination Date; (ii) the Executive’s termination of employment, eligibility for group medical plan benefits under any other employer’s group medical plan; or (Ciii) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 cessation of the Executive’s employmentcontinuation rights under COBRA. provided, all however, if the Company determines that it cannot pay such amounts to the group health plan provider or the COBRA provider (if applicable) without potentially violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then the Company shall convert such payments hereunder to payroll payments directly to the Executive for the time period specified above. Such payments shall cease.be subject to tax-related deductions and withholdings and paid on the Company’s regular payroll dates; and
(vd) 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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The cause all of Executive’s (or in unvested equity to vest subject to the case below Termination Vesting Schedule as outlined herein, as of the Executive’s death, his/her estate’s) execution and delivery to the Company and the expiration of Termination Date. Equity grants shall in all applicable statutory revocation periods, by the sixtieth (60th) day following the effective date of his or 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”). Subject to Section 11 below, the Severance Benefits will begin other respects continue to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished covered by the Company’s waiver or payment Equity Incentive Plan and applicable grant agreements. “Termination Vesting Schedule”: Date Vesting Percentage Start Date through 180 days of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.employment 50% 181 through 270 days after Start Date 75% 271 days after Start Date and beyond 100%
Appears in 1 contract
Severance. If during the Term, Employee is Constructively Terminated (ias defined in Section 7(c) In the event of any termination of the Executive’s employment for any reasonEmployment Agreement), the Executive following shall apply:
(or his or her estatea) Such termination shall not be entitled to (A) his or her Base Salary through effective until the date of termination, (B) the value of his or her 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), for a period of which is six (6) months from the effective date that Employer gives Employee written notice of the termination (“Transition Period”). During the Transition Period, the Employee will continue to provide services to Employer to such terminationextent as Employer requires.
(b) At the end of the Transition Period, Employee shall be entitled to severance equal to 18 months (C“Severance Period”) of pay equal to Employee’s base salary as of the termination date, less standard withholdings for federal, state and local taxes. Such amount shall be paid in bi-weekly installments in accordance with Employer’s payroll practices.
(c) Employee shall also be paid an amount equal to any bonuses that are paid out to Employer’s executives during the ExecutiveSeverance Period that Employee would have been entitled to if his employment had not been terminated. Such bonuses shall be paid out based solely on earnings per share performance. Payment of such bonuses shall be made at such time as Employer’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and officers are paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B)their bonuses.
(iiid) In During the event Severance Period, all stock options and restricted stock awards outstanding on the Termination Date shall continue to vest and be exercisable. Employee acknowledges that he shall not be entitled to new stock option or restricted stock grants during or after the Severance Term.
(e) During the Severance Period, Employer will pay all premiums for supplemental executive life insurance. At the conclusion of a termination by the Company pursuant Severance Period, Employer, at Employee’s request, shall assign the supplemental life insurance policy to Section 10(a)(iii)Employee if permissible under the policy.
(f) During the Severance Period, or if the Executive terminates this Agreement during the twelve (12) months after a Change of Control pursuant Employee is entitled to Section 10(a)(v)continue to receive medical and dental benefits and Employee may continue deductions for medical and dental benefits, the Company shall (A) pay or provide and Employee consents to the Executive customary deductions for such benefits from 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 actual performance and the number of days the Executive is employed by the Company in such fiscal yearpayments under Section 3(b), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) . Employer will continue to pay employer contributions to Employee’s medical and dental benefits during the Executive his or her Base Salary, Severance Period. Employer will stop optional deductions for items such as retirement plans with Employee’s last paycheck for regular hours worked through the Transition Period. Employee will be eligible for COBRA benefits after the Severance Period ends in accordance with its normal payroll practices and to the extent required by applicable law.
(but not less frequently than monthlyg) Payment of amounts under Sections 3(b) and 3(c) are subject to Employee executing Employer’s standard employment release (copy attached hereto). Additionally, if required by IRS regulations, the payment of amounts under Sections 3(b) and 3(c) shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) be deferred for a period of twelve (12) six months from the effective date of such termination, and (D) provide the Executive, at the CompanyEmployee’s expense, with senior executive level outplacement services for a period of twelve (12) months from the date of termination, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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) last day following the effective date of his or 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”). Subject to Section 11 below, the Severance Benefits at which time Employee will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any a lump sum amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the abovesix month period and bi-described timing rule, would have otherwise been paid since weekly payments shall then commence for the date remainder of the Executive’s cessation of employmentseverance period.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Sources: Employment Agreement (Choice Hotels International Inc /De)
Severance. (a) If the Employment Period is terminated by the Company without Cause or by you for Good Reason (as defined in Section 5(h) below), you will be entitled to receive (i) In the event of any termination of the Executive’s employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her your Base Salary as in effect at the time of such termination to the extent such amount has accrued through the date of terminationTermination Date (as defined in Section 5(e) below) and remains unpaid, (B) the value of his or her 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 any fully earned and declared but unpaid Annual Target Incentive Award as of the Executive’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued BenefitsTermination Date, (B) the Executive’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, (Ciii) an amount equal to the Executive’s Target Bonus for the fiscal year sum of termination pro-rated through Base Salary you would have received from the date of such termination (determined based on through the number of days that then applicable Expiration Date, which shall be payable in the Executive is employed by same amounts and at the Company in such year) and paid promptly following such termination, same intervals as if the Employment Period had not ended and (Div) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof any unpaid Expenses as is then funded by the Company for other employees of the Company) for Termination Date. Upon delivery of the period payments and benefits described above in clause (B).
(iii) In the event of a termination by the Company pursuant to this 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)(v5(a), the Company shall have no further obligation to you under this letter agreement or otherwise with respect to your employment with the Company. The Company’s obligation to make the payments to you described in clause (Aiii) pay or provide of this Section 5(a) is conditioned upon your executing and delivering, no later than 14 days following the Termination Date, a release relating 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 actual performance and the number of days the Executive is employed your employment by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees favor of the Company) for a period of twelve (12) months from the effective date of such termination, its Affiliates and (D) provide the Executivetheir respective stockholders, at the Company’s expenseofficers, with senior executive level outplacement services for a period of twelve (12) months from the date of terminationmembers, using a reputable provider selected by the Executive with the Company’s consentmanagers, which shall not be unreasonably withhelddirectors, provided that such outplacement expenses shall not exceed $25,000 in any event.
(iv) Except as expressly provided in this Section 10(b)employees, upon the termination of the Executive’s employment, all payments hereunder shall cease.
(v) The payments subsidiaries 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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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 A.
(b) If the “Release”). Subject to Section 11 belowEmployment Period is terminated by the Company for Cause or by you other than for Good Reason, the Severance Benefits Company will begin pay you (i) your Base Salary as in effect at the time of such termination to be paid the extent such amount has accrued through the Termination Date and remains unpaid, (ii) any fully earned and declared but unpaid Annual Target Incentive Award as of the Termination Date, and (iii) any unpaid Expenses as of the Termination Date. Upon delivery of the payment described in this Section 5(b), the Company will have no further obligation to you under this letter agreement or provided ten (10) days after the Release becomes irrevocable (or otherwise with respect to your employment with the Company.
(c) If the Employment Period is terminated upon your Disability (as defined in Section 5(g) below) or death, the Company will pay you or your estate or succession, whichever is applicable, (i) your Base Salary as in effect at the time of such termination to the extent such amount has accrued through the Termination Date and remains unpaid, (ii) any amount payable under Section 10(b)(iii)(B)fully earned and declared but unpaid Annual Target Incentive Award as of the Termination Date, at such later time and (iii) any unpaid Expenses as specified therein); of the Termination Date.
(d) Except as otherwise required by law or as specifically provided that herein, all of your rights to salary, severance, fringe benefits, bonuses and any other amounts hereunder (if any) accruing after the seventy (70) day period following termination of the Employment Period will cease upon the earlier of the date of such termination begins and your last day of active service. In the event the Employment Period is terminated, your sole remedy, and the sole remedy of your successors, assigns, heirs, representatives and estate, will be to receive the payments described in one taxable year and ends this letter agreement.
(e) Any termination of the Employment Period by the Company (other than termination upon your death) or by you must be communicated by written notice (in either case, a second taxable year“Notice of Termination”) to you. For purposes of this letter agreement, such payments or benefits shall not commence until “Termination Date” means (i) if the second taxable year. The initial payment will include any Severance Benefits thatEmployment Period is terminated by your death, but for the above-described timing rule, would have otherwise been paid since the date of your death, (ii) if the Executive’s cessation Employment Period is terminated upon your Disability, by the Company or by you, the date specified in the Notice of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
Termination (vi) The Executive shall which may not be required earlier than the date of such Notice). Notwithstanding anything contained herein to seek or accept other employmentthe contrary, or otherwise to mitigate damages, as a condition to receipt any termination of the benefits described in Sections 10(b)(ii) and 10(b)(iii), and such benefits shall not Employment Period by you must be reduced or offset by an amounts received by the Executive from any other source, except communicated to the extent provided in Section 10(b)(vii), belowCompany no less than 30 days prior to the intended Termination Date.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. (ia) In the event of any termination of Except as otherwise provided in Section 8, if the Executive’s employment hereunder is terminated during the Employment Term (1) by the Company other than for any reasonCause or due to Disability, death or expiration of the Employment Term following notice by the Company not to extend the Employment Term in accordance with Section 3, or (2) by the Executive for Good Reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 receive as 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (Ci) an amount equal to $1,000,000 per year for two (2) years (payable, at the Company’s option, in a lump-sum or in equal installments in accordance with the Company’s payroll procedures during the two-year period following the date of the Executive’s Target Bonus termination) (such two-year period, the “Severance Period”); (ii) continued medical and dental benefits described in Section 4(c) for the fiscal year Severance Period, at the same rate of termination pro-rated through employee and Company shared costs of such coverage as in effect from time to time for active employees of the date of termination Company, and (determined iii) a pro rata portion (based on the number of days that the Executive is was employed by the Company during the calendar year of termination) of any incentive bonus otherwise payable in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Companyaccordance with Section 4(b)(1) for the period described above in clause (B).
(iii) In the event year of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’s employment, all payments hereunder shall cease.
(v) The payments 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. With respect to any such continued medical and dental benefits described in Sections 10(b)(iiclause (ii) and 10(b)(iii) are in lieu of, and not in addition to, any other severance arrangement maintained by of the Company. The payments and benefits described in Sections 10(b)(ii) and 10(b)(iii), other than immediately preceding sentence for which the Accrued BenefitsExecutive is eligible, (I) if the “Severance Benefits”Company cannot continue such benefits, the Company shall pay the Executive for the cost of such benefits; (II) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or such benefits shall be discontinued in the case of event the Executive becomes eligible for similar benefits from a successor employer (and the Executive’s death, his/her estate’s) execution and delivery eligibility for any such benefits shall be reported by the Executive to the Company Company); and (III) the expiration Executive’s period of all applicable statutory revocation periods“continuation coverage” for purposes of Section 4980B of the Internal Revenue Code of 1986, by the sixtieth as amended (60th) day following the effective date of his or 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 “ReleaseCOBRA”). Subject , shall be deemed to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since on the date of the Executive’s cessation termination of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 (b) For purposes of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.:
Appears in 1 contract
Severance. The Company agrees to provide enhanced severance benefits under certain circumstances by amending and restating Section (a) of the section of the Offer Letter titled “Separation / Change in Control” in its entirety as follows:
(a) If your employment is terminated by the Company or successor (or if the Company revokes this Offer Letter Agreement after you sign and return it) without “Cause” (as defined below) or by you for “Good Reason” (as defined below), subject to the notice and release requirements described below, the Company will pay (i) In your base salary for a period of 12 months, paid in a lump sum no later than 45 days after your termination date (the event of any “Severance Payment”); (ii) one full year’s Bonus at target level, paid in a lump sum no later than 45 days after your termination of date (the Executive’s employment for any reason“Bonus Payment”); and (iii) a pro rated Bonus (i.e., the Executive product of (or his or her estateA) shall the number of weeks you were employed by the Company in the year in which your employment terminated and (B) your target Bonus amount divided by 52) (the “Pro Rated Bonus”); in addition, you will be entitled to (Ax) his or her Base Salary through immediate vesting of (I) all unvested equity awards that were scheduled to vest during the date first 12 months following your termination (including performance-based restricted stock unit awards scheduled to vest during such period, which shall vest at target) and (II) all unvested portions of terminationthe Make Whole Equity Grant, regardless of when such unvested portions of the Make Whole Equity Grant were scheduled to vest (B) including the value Make Whole Equity Grant consisting of his or her accrued but unused vacation and paid time off through the date of terminationperformance-based restricted stock unit awards, (C) except calculated as provided in the case applicable award agreement) (collectively, the “Accelerated Equity Vesting”); (y) outplacement services for one year up to a maximum cost 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 $50,000 (the “Accrued BenefitsOutplacement Services”).
; and (ii) In the event of termination of the Executive’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (Cz) an amount equal to 12 months of premiums for COBRA continuation coverage of your health insurance should you elect such coverage, including the Executiveportion that was paid by the Company (the employer portion) and the portion paid by you (the employee portion) during your employment (the “COBRA Subsidy”). If your employment is terminated by the Company or its successor without Cause or by you for Good Reason during the window period starting with the signing of an agreement to engage in a Change in Control (as defined below) until 12 months after the Change in Control, subject to the notice and release requirements described below, then the Severance Payment shall be increased to 24 months, the Bonus Payment shall consist of two full year’s Target Bonus at target level and you will not be entitled to the Pro Rated Bonus, the COBRA Subsidy shall be increased to 18 months, and the Accelerated Equity Vesting and Outplacement Services shall remain the same (except that, for the fiscal year of termination properformance-rated through the date of termination (determined based on restricted stock unit awards scheduled to vest during such period, the number of days shares that shall vest will be calculated as provided in the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (Bapplicable award agreement).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. (i) In the event of any termination Provided that Executive signs this Agreement and does not revoke it, and signs each of the Executive’s employment for any reason, Consulting Agreement and the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 employment by reason of deathProprietary Information Agreement, the Company shall shall:
(a) pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) Executive an amount equal to the Executive’s Target Bonus for the fiscal year of termination proTwo Hundred Sixty-rated through the date of termination Five Thousand Dollars (determined based $265,000), such amount to be paid in a lump sum on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense first payroll date following January 1, 2018 (or such portion thereof as is then funded by the Company for and in all cases not later than January 15, 2018), subject to tax withholding and other employees authorized deductions, in recognition of the Company) for the period described above in clause (B).Executive’s performance during 2017; and
(iii) In the event of a termination by the Company pursuant to 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 (Ab) pay or provide reimburse the Executive for his premiums charged to continue medical coverage pursuant to the Executive the Accrued Benefits, Consolidated Omnibus Budget Reconciliation Act (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 actual performance and the number of days the Executive is employed by the Company in such fiscal year“COBRA”), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent or reasonably equivalent medical coverage under the Executive’s termination of employment, (C) continue group medical program available to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense employees generally for Executive (or and, if applicable, Executive’s spouse and eligible dependents) as in effect immediately prior to the Separation Date, to the extent that Executive elects such portion thereof as is then funded by the 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 continued coverage; provided that the Company’s expense, with senior executive level outplacement services for a period of twelve (12) months from the date of termination, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in obligation to make any event.
(iv) Except as expressly provided in payment or reimbursement pursuant to this Section 10(b)4(b) shall commence with continuation coverage for September 2017 and shall cease with continuation coverage for February 2018 (or, if earlier, shall cease upon the termination first to occur of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the Executive’s death, his/her estate’s) execution and delivery to the date Executive becomes eligible for coverage under the health plan of a future employer, or the date the Company and the expiration of all applicable statutory revocation periods, by the sixtieth (60th) day following the effective date of his ceases to offer group medical coverage to its active executive employees or 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”). Subject is otherwise under no obligation to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for offer COBRA continuation coveragecoverage to Executive). To the extent Executive (or his eligible dependentselects COBRA coverage, as applicable) are not eligible, or cease he shall notify the Company in writing of such election prior to be eligible, for COBRA such coverage taking effect and complete any other continuation (for example, because of their coverage enrollment procedures the Company may then have in another employer’s group health plan), the place. The Company’s obligation to continue group health coverage under pay or reimburse for premiums pursuant to this Section 10(b4(b) will ceasedoes not apply to any coverage that the Company (or one of its affiliates) is not required to offer Executive pursuant to COBRA. The Company’s obligations pursuant to clause (b) above are subject to the Company’s ability to comply with applicable law and provide such benefit without resulting in adverse tax consequences. Executive agrees that the Company may reduce any amount otherwise payable pursuant to clause (a) above by the amount of any required tax withholding or other authorized deduction otherwise required with respect to the payments and benefits contemplated by clause (b) above as well as any other required tax withholding amounts on other payments or reimbursements made by the Company for Executive’s benefit and that, if the amount otherwise payable pursuant to clause (a) above is not sufficient to satisfy all applicable tax withholding and other authorized deductions (for clarity, also taking into account the tax withholding and other authorized deductions with respect to the amount contemplated by clause (a)), Executive shall promptly make arrangements satisfactory to the Company to pay for such tax withholding and other authorized deductions.
Appears in 1 contract
Sources: Separation and Release Agreement (Cti Biopharma Corp)
Severance. (iIf the conditions set forth in Section 1(a) In the event of any termination of the Executive’s employment for any reasonor 1(b) or 1(c) are met, the Executive (or his or her estate) following provisions shall be entitled to applicable:
(Aa) his or her Base Salary through the date The Company shall pay you salary continuation at your then-current base salary rate for a period of termination, (B) the value of his or her 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 6 months following 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 (Company's normal payroll practice, as may be modified by the “Accrued Benefits”)Company from time to time.
(iib) In the event of termination of the Executive’s employment by reason of death, the The Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), for you a period of six (6) months from the effective date of such termination, (C) an amount one-time payment equal to your targeted bonus amount established by the Executive’s Target Bonus Company payable for the fiscal year of termination pro-rated through the in which your date of termination (determined based on occurs; provided that such payment shall be pro rated to reflect the number of days that the Executive is you have been employed by the Company in during such year) and paid promptly following such termination. (By way of example, and (D) continued health benefits if your targeted bonus amount for the Executive’s eligible dependents year 2000 is equal to 40% of your base salary of $100,000 and you have worked until June 30, 2000 before leaving the Company, the one-time payment under this subsection (b) would be $20,000.) The payment set forth in this Section 2(b) shall be paid at the Company’s expense (or such portion thereof as is then funded by the Company for other employees time of the first regularly-scheduled payroll payment (in accordance with the Company's normal payroll practice) for following the period described above in clause (B)date of your termination.
(iiic) In the event of a termination by the Company pursuant to 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 The Company shall provide you the same benefits to which you are eligible and are receiving at your termination date (A) pay or provide to the Executive extent permitted by law and/or the Accrued Benefits, (B) pay the Executive a pro-rata annual bonus in respect terms and conditions of the fiscal year in which the effective date of termination occurs (determined based on actual performance and the number of days the Executive is employed by the Company in applicable plan documents governing such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Companybenefits) for a period of twelve (12) 6 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year accordance with the Company's existing policies, as may be modified by the Company from time to time.
(d) Receipt by you of the foregoing payments will be conditioned on your execution and ends delivery of a release in a second taxable yearform acceptable to the Company. Moreover, the Company shall terminate all such payments or benefits shall not commence until the second taxable year. The initial payment will include if it determines that you have violated any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 contained in your Employee Non-Disclosure and 8 of this Developments Agreement or Non-Competition Agreement.
(vie) The Executive shall not be required If the Company in its discretion determines that it is obligated to seek withhold any tax in connection with the payments or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by 2, you hereby agree that the Company’s waiver or payment Company may withhold from such payments/benefits the appropriate amount of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will ceasetax.
Appears in 1 contract
Severance. (i) In If the event of any termination of Executive terminates this Agreement and her employment with the Company for Good Reason or if the Executive’s employment with the Company is terminated by the Company for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her accrued but unused vacation and paid time off through the date of termination, (C) except in the case of termination reason other than for Cause, any bonus earned in a prior year but not yet paid on the date including non-renewal 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 this Agreement by the Company (but not including any severance, separation pay, or supplemental unemployment benefit plancircumstances that would give rise to a payment to the Executive pursuant to Section 3.3(a) hereof), in accordance with the terms of such plan or policy (the “Accrued Benefits”).
(ii) In the event of termination of the Executive’s employment by reason of death, the Company shall pay or provide severance to the Executive as follows:
(i) severance pay in an amount equal to 1.0 times the 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
(ii) all accrued but unpaid bonuses for any completed fiscal year and vacation pay, expense reimbursement and other benefits due to the 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 (30) days after the 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 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 COBRA premiums for such coverage (at coverage levels in effect immediately prior to the Executive’s estatetermination) until the earlier of: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), for a period expiration of six (6) months from the effective date of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by termination or (B) the date upon which the Executive with becomes covered under similar plans of any subsequent employer or is otherwise ineligible for COBRA. All payments set forth in the Companyforegoing items (i) and (iii) hereof are defined as the “Severance Indemnity.” The Executive’s consentreceipt of the foregoing Severance Indemnity is conditioned upon her execution and delivery to the Company of a separation and release agreement acceptable to the Company governing the termination of the employment relationship between the Executive and the Company and the Executive’s release of all claims against all members of the Avadel Group of Companies and their employees, which shall not be unreasonably withheldofficers, provided that such outplacement expenses shall not exceed $25,000 in any event.
directors and contractors, and allowing the applicable revocation period required by law to expire without revoking or causing revocation of same, within sixty (iv60) Except as expressly provided in this Section 10(b), upon days following the date of termination of the Executive’s employment, all . Any Severance Indemnity payments hereunder that the Executive would otherwise be entitled to receive prior to the time the aforementioned release becomes effective and irrevocable shall cease.
(v) The payments be accumulated and benefits described paid in Sections 10(b)(ii) a lump sum after the release becomes effective and 10(b)(iii) are in lieu of, irrevocable; and not in addition toif the permissible period during which the Executive may execute and deliver the release and during which the applicable revocation period could expire spans more than one calendar year, any other severance arrangement maintained by payments that the Company. The payments Executive is entitled to receive during such period shall be accumulated and benefits described paid in Sections 10(b)(ii) and 10(b)(iii), other than the Accrued Benefits, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or a lump sum only in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable subsequent calendar year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. (i) In the event of any termination of the ExecutiveThe Company agrees to continue Employee’s employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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)current base salary, in accordance with the terms of such plan or policy Periodic Payments (the “Accrued Benefits”).
(ii) In the event of termination of the Executive’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal less required payroll practices (but not less frequently than monthlytaxes and other withholdings and deductions), for a 24-month period (“Severance Period”), beginning subsequent to Employee’s Termination Date, provided that Employee does not during the Severance Period accept employment or a consulting assignment, directly or indirectly, with or for a Competitor of six the Company, as that term is defined in this paragraph. If Employee accepts employment or a consulting assignment with or for a Competitor, directly or indirectly, or otherwise engages in competition with the Company, in any manner, all payments and benefits otherwise provided under this Agreement will cease. For the purpose of this Agreement, a Competitor of the Company is defined to mean any person, business, firm, corporation or other enterprise engaged in, or about to become engaged in, the production, marketing or selling of any product or service which resembles or competes with a product or service produced, marketed or sold by the Company (6or to Employee’s knowledge was under development by the Company), or any of the Company’s parent, subsidiary, or affiliated entities.
(a) months from the effective date of Periodic Payments shall be made at such termination, (C) an amount equal time as Employee would have received regular salary payments had Employee continued to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is be employed by the Company at an annual base salary rate of $635,000 (“Periodic Payments”), except that, depending on when Employee returns the signed Agreement to the Company, it may take an additional payroll cycle for Periodic Payments to commence. Further, in such year) no case shall Periodic Payments commence unless and paid promptly following such terminationuntil the expiration of the Revocation Period, as described in Paragraph 14 below, after Employee signs and (D) returns this Agreement to the Company. Employee’s coverage will be continued health benefits for the Executive’s eligible dependents at under the Company’s expense group life and group medical insurance plans during the time period that Employee receives Periodic Payments under this Agreement (or such portion thereof as is then funded by provided Employee makes required contributions); all other benefits coverage shall cease. If Employee obtains employment while Periodic Payments are being made, Employee hereby agrees to so notify the Company in writing, and the Company benefits coverage will cease at the time that Employee becomes eligible for other employees benefits coverage from a new employer. Any Periodic Payments that the Company can not make in the first six months of the Company) for Severance Period because of the period described above in clause (B)limitations of Internal Revenue Code section 409A, will be made shortly after the end of the first six months.
(iiib) In The amount of severance paid to Employee will count toward accrual of benefits and vesting under the C▇▇▇▇▇▇▇ Soup Company Mid-Career Hire Pension Plan and the C▇▇▇▇▇▇▇ Soup Company Retirement and Pension Plan for Salaried Employees and vesting under the C▇▇▇▇▇▇▇ Soup Company Savings Plus Plan for Salaried Employees.
(c) The Company agrees that, in the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the ExecutiveEmployee’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 his or 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”). Subject to Section 11 below, the Severance Benefits remaining severance pay due under this Agreement will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the ExecutiveEmployee’s cessation of employmentestate.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. (ia) In the event of any termination of the that Executive’s employment is terminated by the Company without Cause (as defined below), or by Executive for Good Reason (as defined below), then upon such termination the Company shall pay Executive’s earned and accrued Base Salary and any reason, the Executive earned (or his or her estatepartially) shall be entitled to (A) his or her Base Salary earned bonus through the date of termination, at the rate in effect at the time of termination, and in addition, the Company shall:
(Bi) continue to pay Executive’s Base Salary and benefits (including without limitation any premiums due from Executive for health insurance benefits under COBRA) at the rate in effect at the time of termination (without regard to any reduction in base salary that served as the basis for a resignation for Good Reason) for a period (the “Severance Period”) of 12 months following the date of termination.
(ii) the value vesting of his all unvested Employment Options shall be accelerated such that all unvested Employment Options shall be deemed vested as of the termination date; and
(iii) all vested Options shall remain exercisable for a period of 365 calendar days following the termination date, after which date all Options shall expire; provided, however, that no such Option shall be exercisable after the expiration of its maximum term pursuant to the terms thereof.
(b) In the event that Executive’s employment is terminated by the Company for Cause, or her by Executive other than for Good Reason, then upon such termination the Company shall pay Executive’s earned and accrued but unused vacation Base Salary and paid time off any earned (or partially) earned bonus through the date of termination, at the rate in effect at the time of termination, and (Ci) except Executive shall not be entitled to any severance benefits, and (ii) the vesting applicable to all unvested Options shall cease immediately and the Executive shall have a period of 90 days to exercise any and all vested Options (or such longer period as provided in the case Plan, in the event of termination for Causedeath or disability), after which time all Options shall expire.
(c) In the event that Executive’s employment is terminated at any bonus earned in time, beginning on the day that is 60 days prior to the effective date of a prior year but not yet paid Change of Control (as defined below) (the “Trigger Date”) and ending on the date of terminationthat is 12 months from the Trigger Date, then:
(Di) reimbursement of all business expenses properly incurred prior Executive shall be entitled to receive the date of termination consistent with Company policy, amounts and (Ebenefits described above in Sections 9(a)(i) 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”).; and
(ii) In the event of termination of the Executive’s employment by reason of deathall unvested Options shall immediately vest in full and remain exercisable, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly)if applicable, for a period of six (6) months from 365 calendar days following the effective date of such termination; provided, (C) an amount equal however, that no such Option shall be exercisable after the expiration of its maximum term pursuant to the terms thereof. In order to give effect to the foregoing provision, notwithstanding anything to the contrary set forth in the Executive’s Target Bonus for the fiscal year Option agreements regarding immediate forfeiture of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s unvested shares upon termination of employmentservice or the duration of post-termination of service exercise periods, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in following any event.
(iv) Except as expressly provided in this Section 10(b), upon the termination of the Executive’s employment, all payments hereunder none of Executive’s Options shall ceaseterminate with respect to any vested or unvested portion subject to such equity incentive awards before 90 days following such termination.
(vd) The payments and benefits described in Sections 10(b)(ii) and 10(b)(iii) are in lieu ofThis Section 9 sets forth the only obligations of the Company with respect to the termination of Executive’s employment with the Company, and Executive acknowledges that, upon the termination of his employment, he shall not be entitled to any payments or benefits which are not explicitly provided in addition toSection 9. Further, notwithstanding anything to the contrary contained herein, the Company shall have no obligation to pay, and Executive shall have no obligation to receive, any compensation, benefits or other severance arrangement maintained by the Company. The payments and benefits described consideration provided for in Sections 10(b)(ii) and 10(b)(iii), other than the Accrued Benefits, this Section 9 (the “Severance BenefitsPayments”) are conditioned on clauses (A) and (B) below:
A. The following termination of Executive’s (employment unless Executive executes, and does not revoke or rescind, in the case of the no event later than 45 days following Executive’s deathtermination (the “Release Deadline”) a separate agreement, 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 his or 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 “ReleaseRelease Agreement”). Subject to Section 11 below, releasing, as provided therein, the Severance Benefits Company from any and all liability in connection with the termination of Executive’s employment; provided, however, that the failure to execute the Release Agreement shall not relieve the Company of its obligation to pay to Executive, and Executive shall be entitled to receive, the amount of any earned and/or accrued but unpaid Base Salary through the date of termination. The Company will begin pay the Payments in accordance with its regular payroll schedule; provided, however, that no Payments will be paid prior to the Release Deadline. If the Company determines that the Payments constitute “deferred compensation” under Section 409A (as defined in Section 11), and Executive’s Separation from Service (as defined in Section 11) occurs at a time during the calendar year when the Release Agreement could be executed in the calendar year following the calendar year in which Executive’s Separation from Service occurs, then regardless of when the Release is returned to the Company, the Release will not be deemed executed any earlier than the Release Deadline. Notwithstanding any other payment schedule set forth in this Agreement, none of the Payments will be paid or provided ten (10) days after otherwise delivered prior to the execution of the Release becomes irrevocable (or with respect Agreement. Except to any amount payable under the extent that Payments may be delayed until the Specified Employee Initial Payment Date pursuant to Section 10(b)(iii)(B)11, at such later time as specified therein); provided that if on the seventy (70) first regular payroll pay day period following the execution of the Release, the Company will pay Executive the Payments Executive would otherwise have received under the Agreement on or prior to such date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since delay in Payments related to the date execution of the Executive’s cessation Release, with the balance of employmentthe Payments being paid as originally scheduled.
B. (e) The Executive’s continued compliance with Company shall withhold all applicable federal, state and local taxes and social security and such other amounts as may be required by law from all amounts payable to the Executive under this Section 9.
(f) The provisions of Sections 5, 6, 7 and 8 this Section 9 shall survive any termination of this Agreement.
(vig) The Executive For purposes of this Agreement, “Cause” shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt include any of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.following:
Appears in 1 contract
Severance. (ia) In If the event of any termination Company terminates Employee’s employment with the Company without Cause in accordance with Section 5(c) prior to the expiration of the Executive’s employment for any reasonInitial Term, the Executive Company shall pay Employee a severance payment an amount equal to three (or his or her estate3) shall be entitled to (A) his or her months of Employee’s Base Salary through the date of termination, (B) the value of his or her accrued but unused vacation and paid time off through the date of termination, (C) except as in the case of termination for Cause, any bonus earned in a prior year but not yet paid effect on the date of termination, subject to subsections (D) reimbursement of all business expenses properly incurred prior to the date of termination consistent with Company policyc), (d), 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”e).
(iib) In If during the event Term of termination 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 7(a)) payable in a lump sum in cash in an amount equal 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), 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 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 Executive’s employment by reason Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of deaththe Code, the Company shall pay or provide to Severance Payment will be made on the ExecutiveCompany’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal first payroll practices (but not less frequently payment date that is more than monthly), for a period of six (6) months from the effective date of such termination, (C) an amount equal Severance Payment is otherwise payable pursuant to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B)this Agreement.
(iiid) In Employee acknowledges and agrees the event of a termination by Severance Payment to which the Company pursuant to Employee is entitled under this 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 6 is conditioned upon and subject to the Executive Employee’s executing and delivering 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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 B by the 45th day following the Employee’s separation from service and not revoking the release within the seven (7) days after executing and delivering the “Release”)release. Subject to Section 11 belowIf such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Benefits Payment will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable calendar year. The initial payment will include any Employee’s right to the Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The ExecutivePayment is further conditioned upon Employee’s continued compliance with the provisions of Sections 5, 6, 7 and 8 7-11 of this Agreement.
(vi) The Executive shall not be required . If Employee breaches any of his obligations in Sections 7-11 of this Agreement, he will immediately return to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt the Company any portion of the benefits 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 source, except Severance Payment that has been paid to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under him pursuant to this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease6.
Appears in 1 contract
Severance. (i) In the event of any termination of the Executive’s employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 employment by reason of death, If the Company shall pay or provide to terminate the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company 's employment without "cause" pursuant to Section 10(a)(iii), 4(d) above during the Term or if the Executive terminates this Agreement his employment under Section 4(c) due to a material change in status during the twelve (12) months after a Change of Control pursuant to Section 10(a)(v)Term, 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any event.
(iv) Except as expressly provided in this Section 10(b)then, upon the termination Executive's execution of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or her termination of employment, of a general release of claims against the Company and its affiliates substantially in the form Release attached hereto as Exhibit A (or in a substantially similar form as the “Release”Company deems necessary in order to comply with then applicable law), 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) his then Base Salary for one (1) year immediately following such termination, payable in regular installments consistent with its payroll practices in effect from time to time, and (ii) 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 Section 11 belowthe Executive's delivery of an executed and effective Release, the Severance Benefits will begin Company's obligation under this Section 4(f) 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 paid or provided ten (10) days after the Release becomes irrevocable (or entitled to with respect to any amount payable under Section 10(b)(iii)(B)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, at such later time as specified therein); provided that if the seventy (70Company terminates the Executive's employment with "cause" pursuant to Section 4(d) day period above, if the Executive terminates his employment pursuant to Section 4(e) above, or if the Executive's employment is terminated for any reason following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date expiration of the Executive’s cessation of employment.
B. The Executive’s continued compliance with Term, then the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required entitled to seek or accept other employmentany further payments under this Agreement, including Base Salary, Bonus, Employee Benefits, or Severance, except as otherwise required by applicable law, including the payment of any amounts owed to mitigate damages, as a condition to receipt of the benefits 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 and any other source, except obligation that the Company may have to offer the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverageExecutive continued benefit plan participation. To the extent Executive that any amount payable under this Agreement constitutes amounts payable under a "nonqualified deferred compensation plan" (or his eligible dependentsas defined in Internal Revenue Code Section 409A (hereinafter, "Section 409A")) following a "separation from service" (as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment defined in another employer’s group health planSection 409A), the Company’s obligation to continue group health coverage including any amount payable under this Section 10(b) 4, then, notwithstanding any other provision in this Agreement to the contrary, such payment will ceasenot be made until the date that is six months following the Executive's "separation from service," but only if the Executive is then deemed to be a "specified employee" under Section 409A. On the first day of the seventh month following separation of employment, all amounts which have been held back for the 6-month period, will be paid to the Executive.
Appears in 1 contract
Sources: Employment Agreement (ORBCOMM Inc.)
Severance. a. If the Company terminates the employment of the Executive against his will and without Cause, or the Executive terminates his employment for a Good Reason, the Executive shall be entitled to receive, subject to receipt by the Company of an executed release and waiver of claims (that has not been revoked during any applicable revocation period) in a form reasonably acceptable to the Company (and which, other than the release and waiver of claims shall not impose upon Executive any obligations or restrictions not contained in this Agreement, or limit Executive’s rights hereunder): (i) In salary and target incentive compensation accrued through the event Termination Date, plus (ii) the lesser of any termination (a) $250,000 or (b) the balance of the Executive’s employment compensation hereunder to the end of the Employment Period computed using the latest applicable salary rate, and (iii) notwithstanding the vesting period provided for in the Company’s Stock Option Plan and any related stock option agreements between the Company and the Executive for stock options granted Executive by the Company, all then outstanding options shall be fully vested and exercisable as of the Termination Date. The Company shall make severance payments pursuant to this section, in full, within 30 days of the Termination Date. Notwithstanding the foregoing, the Company shall not be required to pay any severance pay for any reasonperiod following the Termination Date if the Executive violates the provisions of Section 14, Section 15 or Section 16 of this Agreement. In such event, the Company shall provide written notice to the Executive (detailing such violation.
b. If the Executive is terminated by the Company for Cause or his or her estate) the Executive terminates employment other than for Good Reason, then the Executive shall be entitled to (A) his or her Base Salary receive compensation and incentive compensation earned through the date of termination, (B) Termination Date only.
c. To the value of his or her 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 extent COBRA shall be applicable to the date Company or as provided by law, the Executive shall be entitled to continuation of termination consistent with Company policy, group health plan benefits following the Termination Date if the Executive makes the appropriate conversion 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) payments. In the event of termination the Company terminates the employment of the Executive’s Executive without Cause, or the Executive terminates his employment by reason of deathfor a Good Reason, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) COBRA premiums for a period of twelve (12) months from the effective date Termination Date, unless Executive earlier becomes eligible for equivalent employer paid benefits as a result 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of new employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) d. The Executive shall not be required to seek or accept other acknowledges that, upon termination of his employment, he is entitled to no other compensation, severance or otherwise to mitigate damages, as a condition to receipt of the other benefits described other than those specifically set forth in Sections 10(b)(ii) and 10(b)(iii), and such benefits shall not be reduced this Agreement or offset by an amounts received by the Executive from any other source, except to the extent provided in Section 10(b)(vii), belowapplicable stock option agreement.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Sources: Employment Agreement (Safenet Inc)
Severance. (ia) In If the event Company terminates Executive's employment with the Company without Cause (excluding death or Disability) or if Executive resigns from such employment for Good Reason, and if such termination or resignation occurs prior to three (3) months before a Change in Control of any the Company, then Executive will receive, in addition to Executive's salary payable through the date of termination of the Executive’s employment for and any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary other employee benefits earned and owed through the date of termination, the following benefits from the Company:
(i) continuing payments of severance pay in accordance with the Company's normal payroll policies at a rate equal to Executive's Base Salary rate, as is then in effect, for three (3) months from the date of such termination without Cause or resignation for Good Reason; and
(ii) if Executive elects continuation coverage pursuant to the Consolidated Budget Reconciliation Act of 1985 ("COBRA") within the time period prescribed pursuant to COBRA for Executive and Executive's eligible dependents, then the Company will reimburse Executive on the last day of each month after her employment termination date for the COBRA premiums paid during such period for such coverage (at the coverage levels in effect immediately prior to Executive's termination) for a period ending three (3) months following such termination or resignation; provided, that such coverage shall end upon such earlier date that Executive and/or Executive's eligible dependents become covered under similar plans. Notwithstanding the foregoing, if the Company determines in its sole discretion that it cannot provide the benefit described in this Section 8(b) without potentially violating, or being subject to an excise tax under, applicable law (including, without limitation, Section 2716 of the Public Health Service Act), the Company will in lieu thereof provide to Executive a taxable monthly payment, payable on the last day of a given month, in an amount equal to the monthly COBRA premium that Executive would be required to pay to continue Executive's group health coverage in effect on the termination of employment date (which amount will be based on the premium for the first month of COBRA coverage), which payments will be made regardless of within Executive elects COBRA continuation coverage arid will commence on the month following Executive's termination of employment and will end on the earlier of (A) the date upon which Executive obtains other employment or (B) the value date the Company has paid an amount equal to three (3) payments, per the terms of his this agreement. For the avoidance of doubt, the taxable payments in lieu of COBRA reimbursements may be used for any purpose, including, but not limited to continuation coverage under COBRA, and will be subject to all applicable tax withholdings.
(b) If the Company terminates Executive's employment with the Company without Cause (excluding death or her accrued but unused vacation Disability) or if Executive resigns from such employment for Good Reason, and paid time off if such termination or resignation occurs within three (3) months prior to, or six (6) months following, a Change in Control of the Company, then Executive will receive, in addition to Executive's salary payable through the date of termination of employment and any other employee benefits earned and owed through the date of termination, the following benefits from the Company:
(Ci) except in the case continuing payments 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), severance pay in accordance with the terms of such plan or policy (the “Accrued Benefits”).
(ii) In the event of termination of the Executive’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its Company's normal payroll practices (but not less frequently than monthly)policies at a rate equal to Executive's Base Salary rate, as is then in effect, for a period of six (6) months from the effective date of such termination without Cause or resignation for Good Reason;
(ii) if Executive elects continuation coverage pursuant to the Consolidated Budget Reconciliation Act of 1985 ("COBRA") within the time period prescribed pursuant to COBRA for Executive and Executive's eligible dependents, then the Company will reimburse Executive on the last day of each month after her employment termination date for the COBRA premiums paid during such period for such coverage (at the coverage levels in effect immediately prior to Executive's termination) for a period ending six (6) months following such termination or resignation; provided, that such coverage shall end upon such earlier date that Executive and/or Executive's eligible dependents become covered under similar plans. Notwithstanding the foregoing, if the Company determines in its sole discretion that it cannot provide the benefit described in this Section 8(b) without potentially violating, or being subject to an excise tax under, applicable law (C) including, without limitation, Section 2716 of the Public Health Service Act), the Company will in lieu thereof provide to Executive a taxable monthly payment, payable on the last day of a given month, in an amount equal to the monthly COBRA premium that Executive would be required to pay to continue Executive’s Target Bonus for 's group health coverage in effect on the fiscal year termination of termination pro-rated through the employment date of termination (determined which amount will be based on the number premium for the first month of days that COBRA coverage), which payments will be made regardless of within Executive elects COBRA continuation coverage and will commence on the month following Executive's termination of employment and will end on the earlier of (A) the date upon which Executive is employed by obtains other employment or (B) the date the Company has paid an amount equal to six (6) payments, per the terms of this agreement. For the avoidance of doubt, the taxable payments in such year) and paid promptly following such terminationlieu of COBRA reimbursements may be used for any purpose, including, but not limited to continuation coverage under COBRA, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).will be subject to all applicable tax withholdings;
(iii) In fifty percent (50%) the event of a termination by annual Target Bonus opportunity for the Company pursuant to 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 actual performance and the number of days the Executive employee is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (terminated without C) continue to pay the Executive his ▇▇▇▇ or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company resigns 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any event.Good Reason; and
(iv) Except one hundred percent (100%) of any Equity Awards held by Executive as expressly provided in this Section 10(b), upon the termination of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of such termination begins in one taxable year without Cause or resignation for Good Reason shall immediately vest and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
become fully exercisable (vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(viiapplicable), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. Upon termination of this Agreement by Company without Cause or by Employee for Good Reason at any time following the one-year anniversary of the Commencement Date (the “Termination Date”), Company shall:
(i) In the event of any termination pay all accrued and unpaid Base Salary and accrued and unused vacation pay, payable within thirty (30) days of the Executive’s employment for any reasondate of termination, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary and all accrued and vested benefits through the date of termination, (B) the value of his or her 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), payable in accordance with the terms of such plan or policy (the “Accrued Benefits”).applicable benefit plan;
(ii) In pay any Annual Bonus for any prior completed fiscal year that has been determined but not paid as of the event date of termination, payable within thirty (30) days of the date of termination;
(iii) a pro-rata portion (based on days worked through the date of termination) of the Annual Bonus for the fiscal year of termination that Employee would have earned for such year had employment continued, based on actual performance results for the full annual performance period, payable at the time that annual bonuses are paid to active executives of Company (but in no event later than seventy-five (75) days after the end of the Executive’s employment by reason fiscal year in which termination occurs);
(iv) continued payment (“Severance Pay”) of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the ExecutiveEmployee’s Base Salary, payable in equal installments in accordance with its normal Company’s payroll practices (but not less frequently than monthly), for a period of six (6) months from after the effective date Termination Date commencing on the first payroll period after Employee executes a general release on behalf of Company in connection with such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days “Severance Period”); provided, however, that the Executive is employed Severance Pay due to Employee shall be reduced by the Company in such year) and paid promptly following such terminationamount of any earnings from employment, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (including self-employment or such portion thereof as is then funded other contract-for-hire work, earned or received by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement Employee 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’s employment, all payments hereunder shall cease.Severance Period;
(v) The payments if Employee timely 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 properly elects health continuation coverage under the Company. The payments and benefits described in Sections 10(b)(ii) and 10(b)(iiiConsolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), other than reimburse, grossed up for any applicable taxes, Employee for the Accrued Benefits, monthly COBRA premium paid by Employee for Employee and Employee’s dependents. Such reimbursement shall be paid to Employee on the fifth (the “Severance Benefits”5) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 month immediately following the effective date month in which Employee timely remits the premium payment. Employee shall be eligible to receive such reimbursement until the earliest of: (a) the six (6)-month anniversary of his or 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 Termination Date; (the “Release”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10b) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required Employee is no longer eligible to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for receive COBRA continuation coverage. To ; and (c) the extent Executive (date on which Employee receives substantially similar coverage from another employer or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will ceaseother source.
Appears in 1 contract
Sources: Employment Agreement (BurgerFi International, Inc.)
Severance. (ia) In If Buyer adversely changes the event terms of employment, compensation or benefits provided or offered to any non-U.S. Continuing Employee or any non-U.S. Business Employee who, but for such changes, would have become a Continuing Employee upon or after the Closing, and such changed terms cause Seller or one of its Affiliates to be responsible for the payment of severance or termination-related payments or benefits to such Continuing Employee or Business Employee, then Buyer and its Affiliates shall reimburse Seller or its relevant Affiliate for the cost of such severance or termination payments or benefits; provided, however, for clarity, that, except as provided under Section 9.04(b), should an Acquired Entity be responsible for the payment of severance or termination-related payments or benefits for any Continuing Employee upon or after the Closing, such payments and/or benefits will be exclusively the obligation of the Executive’s employment for any reasonBuyer and/or its Affiliates.
(b) If Buyer offers to employ a Business Employee on terms, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her accrued but unused vacation including compensation 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 that are substantially comparable to the terms of such plan Business Employee’s employment with Seller or policy its Affiliates in effect immediately prior to the Closing, but such Business Employee becomes entitled to severance or termination-related payments or benefits in connection with the transactions contemplated by this Agreement, either because such Business Employee declines such offer or for any other reason, then Seller shall be solely responsible for the payment of such severance or termination-related payments or benefits. Seller shall also be solely responsible for any severance or termination-related payments or benefits payable to (the “Accrued Benefits”).
i) any employee or former employee of Seller or any of its Affiliates who does not become a Continuing Employee due to Seller’s failure to comply with its obligations under this Agreement or (ii) In the event of termination of the Executive’s employment by reason of death, the Company shall pay any Continuing Employee who becomes entitled to severance or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such related payments or benefits shall not commence until prior to or upon the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverageClosing. To the extent Executive (the severance or his eligible dependents, as applicable) are not eligible, termination-related payments or cease benefits for which Seller is responsible pursuant to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease9.04 are paid by Buyer or one of its Affiliates, Seller shall reimburse Buyer or its relevant Affiliate for the cost of such severance or termination-related payments or benefits.
Appears in 1 contract
Sources: Stock Purchase Agreement (Fortune Brands Home & Security, Inc.)
Severance. If the Employment Period and Executive’s employment with the Employer is terminated by the Employer without Cause or by Executive for Good Reason (and not, for purposes of clarity, by the Employer for Cause, as a result of the Employer providing a Notice of Non-Renewal pursuant to Section 1 hereunder or due to Executive’s death or disability), then, in addition to the Accrued Obligations, subject to and conditioned upon (i) In the event of any termination of the Executive’s employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the Executive’s death, his/her estate’s) timely 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 his or her termination of employment, Employer of a general release of claims against in favor of the Company and its affiliates substantially in the form attached hereto as Exhibit A (the “General Release”). Subject , which General Release (x) may be updated by the Employer to Section 11 below, comply with applicable law in effect at the Severance Benefits will begin to be paid or provided ten time of Executive’s termination of employment and (10y) becomes effective and irrevocable within sixty (60) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date Date of termination begins in one taxable year Termination, and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The (ii) Executive’s continued compliance with the provisions of Sections 5restrictive covenants set forth in the Grant Agreement and Section 5 below (collectively, 6the “Restrictive Covenants”), 7 the Employer shall pay or provide to Executive the following payments and 8 of this Agreement.benefits (collectively, the “Severance”):
(vii) An amount in cash equal to no less than nine (9) months of Executive’s then-current Base Salary (the “Cash Severance”). The Cash Severance shall be payable in substantially equal installments in accordance with the Employer’s general payroll practices during the period commencing on the Date of Termination and ending on such date as set forth in the Employer’s then-current Executive Severance Plan, and, in any event, ending no earlier than on the nine (9)-month anniversary of the Date of Termination (the “Severance Period”); provided, that the first installment shall not be required paid until the first regular Employer payroll date following the effective date of the General Release and any amounts otherwise payable prior thereto shall be paid on such first payroll date without interest thereon. Notwithstanding the foregoing, if the aggregate period in which Executive may consider and/or revoke the General Release spans two (2) calendar years, no portion of the Cash Severance shall be paid until the second such calendar year (and any payment otherwise payable prior thereto (if any) shall instead be paid on the first regularly scheduled Employer payroll date occurring in the latter such calendar year (or, if later, the first regularly scheduled Employer payroll date occurring after the General Release becomes effective and irrevocable)); and
(ii) Subject to seek or accept other employmentExecutive’s (A) timely election of, or otherwise to mitigate damagesand continued eligibility for, continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as a condition to receipt of the benefits described in Sections 10(b)(ii) and 10(b)(iiiamended (“COBRA”), and such benefits shall not be reduced or offset by (B) continued payment of all premiums (without any copayment) at the same level and cost to Executive as if Executive were an amounts received by employee of the Executive from any other sourceEmployer, except continued participation in the Employer’s group health plan (to the extent provided in Section 10(b)(vii)permitted under applicable Law and the terms of such plan) which covers Executive (and Executive’s eligible dependents) during the period commencing on the Date of Termination and ending on the earlier of (x) the last day of the Severance Period, below.
and (viiy) Any continuation of the date on which Executive becomes covered by a group health insurance program provided by a subsequent employer (in any case, the “COBRA Period”); provided, that if the Employer is unable to cover Executive under this its group health plans (including because any portion of the COBRA premium would violate the nondiscrimination rules or cause the reimbursement of claims to be taxable under the Patient Protection and Affordable Care Act of 2010, together with the Health Care and Education Reconciliation Act of 2010 (collectively, the “Affordable Care Act”) or Section 10(b105(h) will be accomplished by of the Company’s waiver Internal Revenue Code of 1986, as amended (the “Code”) or payment because the Employer would incur penalties as a result of the applicable premium for plan being “self-insured” or otherwise pursuant to applicable Law (in each case as determined by the Employer in its reasonable discretion)), then an amount equal to each remaining Employer subsidy (the “COBRA continuation coverage. To Reimbursement Payment”) will thereafter be paid to Executive in substantially equal cash payments in accordance with the extent Executive Employer’s regular payroll practices over the COBRA Period (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health planremaining portion thereof), which payments will be treated as taxable payments (if not already treated as taxable payments). In addition, on each date on which the Company’s obligation monthly COBRA Reimbursement Payment is made, the Employer shall pay to continue group health coverage under this Section 10(b) will ceaseExecutive an additional amount equal to the applicable federal, state and local income and payroll taxes Executive actually incurs on such monthly COBRA Reimbursement Payment (the “Health Gross-Up Payment”). In the event the Employer is required to pay a COBRA Reimbursement Payment and Health Gross-Up Payment, such payments shall be paid to Executive in a manner that is intended to comply with the requirements of Treas. Reg section 1.409A-3(i)(1)(iv).
Appears in 1 contract
Sources: Executive Employment Agreement (Forgent Power Solutions, Inc.)
Severance. (i) In If, during the event Term of any termination of the Executive’s employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of terminationthis Employment Agreement, (Bi) the value of his or her accrued but unused vacation and paid time off through the date of termination, (C) except in the case of termination for Company terminates Executive without 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 resigns for Good Reason, then, upon Executive’s employment by reason Termination of death, the Company shall pay or provide to the Executive’s estate: Employment (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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)(vdefined below), the Company shall (A) pay or provide to the Executive the Accrued Benefits, (B) pay the Executive a pro-rata annual bonus in respect lieu of any other severance benefits under any of the fiscal 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 effective date Annual Bonus to which Executive would otherwise be entitled for the year of termination occurs (determined based on actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid calculated at the end of such year and paid on the same time it would have otherwise been date on which annual bonuses are paid absent to other executives of the Executive’s termination of employment, Company; and (Cy) continue to pay the Executive his or her Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits Salary at the Company’s expense (or time of such portion thereof as is then funded by the Company for other employees of the Company) termination for a period of twelve fifteen (1215) months from following such Termination of Employment (the effective date “Severance Period”), plus, if Executive achieved at least 100% of such terminationthe Target Bonus for the year prior to Executive’s Termination of Employment, and (D) provide 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, at the Company will also pay Executive an amount equal to the Target Bonus for the year in which Executive’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’s expense, with senior executive level outplacement services for a period of twelve . Such severance amounts provided in clause (12y) months from the date of termination, using a reputable provider selected by the Executive above will be paid in accordance with the Company’s consentnormal payroll practices, which shall not subject to such withholding and other taxes as may be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any eventrequired or as otherwise permissible under the Company’s practices or policies.
(ivii) Except as expressly provided in this Section 10(b), upon the termination The Company shall have no obligation to make any severance payments § 4(c)(i) if (i) Executive violates any of the Executive’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 Benefitsprovisions of § 5 of this Employment Agreement, (ii) the “Severance Benefits”Company chooses not to renew this Employment Agreement either at the expiration of its initial term or at any point thereafter, or (iii) are conditioned on clauses Executive does not execute and deliver (Awithout revoking) and (B) below:
A. The Executive’s (or in the case of the 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 his or her termination of employment, of a general release of claims against the Company and its affiliates substantially in the form attached hereto to this Employment Agreement as Exhibit A (the “Release”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation Termination of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this AgreementEmployment.
(viiii) The Executive shall not be required waives Executive’s rights, if any, to seek or accept have the payments provided for under this § 4(c) taken into account in computing any other employmentbenefits payable to, or otherwise to mitigate damageson behalf of, as a condition to receipt of the benefits described in Sections 10(b)(ii) and 10(b)(iii), and such benefits shall not be reduced or offset by an amounts received Executive by the Executive from any other source, except to the extent provided in Section 10(b)(vii), belowCompany.
(viiiv) Any continuation 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 health insurance the Company or any Affiliate of the Company will have any obligation to make severance payments under this Section 10(b) will be accomplished by the Companyin connection with such Change in Control unless Executive’s waiver employment is terminated without Cause or payment of the applicable premium Executive resigns for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment Good Reason following such Change in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will ceaseControl.
Appears in 1 contract
Severance. To the extent your employment is terminated by the Company without Cause or by you for Good Reason (inot including death or Disability) In at any time, you will be eligible for benefits under the event Company’s Executive Severance Plan (as most recently amended and restated as of any termination November 2, 2015, as amended on July 9, 2021), as such plan may be further amended, restated or replaced from time to time (the “Severance Plan”), subject to satisfaction of the ExecutiveSeverance Plan’s employment relevant requirements (e.g., incurring a qualifying termination and execution of release). Notwithstanding the foregoing, for any reasonpurposes of determining the benefits due to you pursuant to the Severance Plan,
(a) the following shall be deemed to be added to the end of Section I.C of the Severance Plan: “For purposes of this Plan, the Executive Eligible Employee shall be deemed to have been involuntarily terminated by action of the Company if the Eligible Employee terminated his employment with the Company for “Good Reason” (or as defined in Exhibit B to that certain Amended and Restated Letter Agreement between the Company and the Eligible Individual dated as of January 19, 2022 (the “Amended and Restated Letter Agreement”));”
(b) the definition of “Pay” in Section II.A.1 of the Severance Plan, shall be deemed to be “the sum of (a) two times his or her estate) shall be entitled to (A) his or her Base Salary through annual base salary as shown on the date Company’s records at the time of termination, and (Bb) two times the target value of his or her accrued but unused vacation and paid time off through annual incentive under the date Company’s applicable annual incentive program (or program of terminationsimilar effect) for the year in which termination occurs;” and
(c) a new Section II.A.4 shall be deemed to have been added to the Severance Plan, which Section II.A.4 shall be deemed to read as follows: “Prorated Bonus. Subject to compliance with Plan requirements, an Eligible Employee shall receive payment of a pro rata portion of his Annual Bonus (C) except as defined in the case of termination for Cause, any bonus earned in a prior year but not yet paid on the date of termination, (DAmended and Restated Letter Agreement) 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of the Company in his termination pro-rated through the date of termination (determined occurs, based on the number of days of such fiscal year that elapsed through the Executive is employed date his employment terminated and calculated based on the actual performance results applicable to such fiscal year (with any exercise of negative discretion to be based only on achievement (or lack thereof) of previously-established performance goals and not subjective personal performance), payable at such time as bonuses are paid by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for to senior executives pursuant to the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees terms of the Company) for AIP (as defined in the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iiiAmended and Restated Letter Agreement), or if but in no event will such amount be paid after March 15th of the Executive terminates this Agreement during calendar year following 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 end of the fiscal year in to which the effective date of termination occurs (determined based on actual performance and the number of days the Executive is employed by the Company in such fiscal year)Annual Bonus relates.” January 19, with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.2022
Appears in 1 contract
Sources: Amended and Restated Letter Agreement (PERDOCEO EDUCATION Corp)
Severance. (ia) In the event of any your termination of employment from the Executive’s employment Company by reason of your death, Disability, voluntary resignation without Good Reason or by the Company for any reasonCause, the Executive (or his or her estate) shall you will be entitled to receive (Ai) his or her any unpaid Base Salary through the date of termination, (Bii) except in the value case of his your termination by the Company for Cause, any annual bonus earned but unpaid with respect to the fiscal year ending on or her accrued but unused vacation preceding the date of termination, payable at the same time as it would have been paid had you not undergone a termination of employment, (iii) except in the case of your termination by the Company for Cause or by you without Good Reason, a pro-rata portion of an annual bonus for the calendar year in which your termination occurs based on actual results for such year (determined by multiplying the amount of such bonus which would be due for the full calendar year by a fraction, the numerator of which is the number of days during the calendar year of termination that you are employed by the Company and the denominator of which is 365), payable at the same time as it would have been paid time off had you not undergone a termination of employment, (iv) reimbursement in accordance with applicable Company policy for any unreimbursed business expenses incurred through the date of termination, (Cv) except any accrued but unused vacation time 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 accordance with Company policy, and (Evi) all other payments, benefits or fringe benefits to which you are entitled under the terms of any benefits, including any continuation applicable compensation or conversion rights, provided under any equity arrangement or employee benefit plan or policy program of the Company (not including any severancecollectively, separation pay, or supplemental unemployment benefit plan), in accordance with the terms of such plan or policy (Sections 9(a)(i) through 9(a)(vi) hereof will be hereafter referred to as the “Accrued Benefits”).
(iib) In the event of your termination of employment from the Executive’s employment Company by reason of deathyou for Good Reason or by the Company without Cause, the Company shall will pay or provide to you with the Executive’s estate: following severance benefits:
(Ai) the Accrued Benefits;
(ii) subject to your continued compliance with all of your post-termination obligations to the Company, a cash amount equal to two times your Base Salary plus two times your Target Bonus, paid monthly for a period of twenty-four (24) months following such termination; and
(iii) subject to (A) your timely election of, continued eligibility for, continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), (B) your continued copayment of premiums at the Executivesame level and cost to you as if you were an employee of the Company (excluding, for purposes of calculating cost, an employee’s Base Salary, in accordance ability to pay premiums with its normal payroll practices (but not less frequently than monthlypre-tax dollars), for a period of six (6) months from the effective date of such termination, and (C) an amount equal your continued compliance with all of your post-termination obligations to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company Company, continued participation in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense group health plan (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance extent permitted under applicable law and the number terms of days the Executive is employed by the Company in such fiscal year), with such annual bonus plan) which covers you (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her your eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for a period of twelve twenty-four (1224) months from the effective date of following such termination, and (D) provide the Executive, termination at the Company’s expense; provided that the Company will report to the appropriate tax authorities taxable income to you equal to the portion of the deemed cost of such participation (based on applicable COBRA rates) not paid by you; and provided, with senior executive level outplacement services for a period further, that in the event that you obtain other employment that offers group health benefits, such continuation of twelve (12) months from the date of termination, using a reputable provider selected coverage by the Executive Company will immediately cease. Notwithstanding the foregoing, in the event that providing the foregoing coverage would result in the imposition on you of additional taxes under Section 105(h) of Internal Revenue Code, or the imposition of excise taxes on the Company for failure to comply with the Company’s consentnondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, which shall not be unreasonably withheldas amended, provided that and the Health Care and Education Reconciliation Act of 2010, as amended (to the extent applicable), you and the Company hereby agree to negotiate in good faith to modify the foregoing provision in such outplacement expenses shall not exceed $25,000 in any eventmanner as to avoid the imposition of such additional taxes or excise taxes while also maintaining, to the maximum extent reasonably possible, the original intent and economic benefits to you and the Company under this Section 9(b)(iii).
(ivc) Except as expressly provided Payment of all amounts described in this Section 10(b), upon 9 beyond the termination of the Executive’s employment, all payments hereunder shall cease.
Accrued Benefits (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, amount described in Section 9(a)(iii) hereof) (the “Severance BenefitsPayments”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the Executive’s death, his/her estate’s) execution and delivery will only be payable if you deliver to the Company and the expiration of all applicable statutory revocation periods, by the sixtieth (60th) day following the effective date of his or her termination of employment, of do not revoke a general release of claims against in favor of the Company and its affiliates substantially in the form of the release attached hereto as Exhibit A D. Such release will be provided to you within seven (the “Release”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (107) days after the Release becomes irrevocable of your termination of employment and must be executed and delivered (or with respect and no longer subject to any amount payable under Section 10(b)(iii)(B)revocation, at such later time as specified therein); provided that if the seventy applicable) within sixty (7060) day period days following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coveragetermination. To the extent Executive that payment of any amount of the Severance Payments constitutes “nonqualified deferred compensation” for purposes of “Code Section 409A” (or his eligible dependentsas defined in Section 15 hereof), as applicableany such payment scheduled to occur during the first sixty (60) are days following the termination of employment will not eligible, or cease be paid until the sixtieth (60th) day following such termination of employment and will include payment of any amount that was otherwise scheduled to be eligiblepaid prior thereto. Payment of the Accrued Benefits shall be made in a timely manner consistent with state law, for COBRA continuation (for example, because regardless of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will ceasewhether you deliver a general release of claims.
Appears in 1 contract
Severance. (ia) In the event of any termination of the that Executive’s employment is terminated by the Company without Cause, or by Executive for any reasonGood Reason (each as hereinafter defined), then:
(i) the Executive (or his or her estate) Company shall be entitled to (A) his or her pay Executive’s accrued but unpaid Base Salary through the date of termination, (B) at the value rate in effect at the time of his or her termination, accrued but unused vacation vacation, and reimburse Executive for any unreimbursed business expenses incurred prior to the date of termination;
(ii) the Company shall continue to pay Executive’s Base Salary at the rate in effect at the time of termination (without regard to any reduction in Base Salary that served as the basis for a resignation for Good Reason) for a period of 12 months following the date of termination in accordance with the Company’s ordinary payroll practice;
(iii) to the extent permitted by applicable healthcare laws and provided that the Executive makes a timely election to continue coverage, the Company shall pay directly to the insurance provider the premium for COBRA continuation coverage for the Executive and the Executive’s dependents, less the amount payable by an active employee for such coverage, for a period of 12 months or until he obtains new employment, whichever comes first (the benefits described in this Section 9(a) shall be referred to as the “Continued Benefits”). Notwithstanding the foregoing, in the event that applicable healthcare laws do not permit continuation of coverage, then the Company shall reimburse Executive for the costs of obtaining coverage in an amount not to exceed the coverage amounts paid or payable by Executive immediately prior to the date of termination; and
(iv) the vesting applicable to all Equity Awards granted during the Term shall cease immediately and the Executive shall have a period of 90 days to exercise any and all vested Equity Awards, after which time off all Equity Awards shall expire; provided, however, that no such Equity Award shall be exercisable after the expiration of its maximum term pursuant to the terms thereof.
(b) In the event that Executive’s employment is terminated by the Company for Cause, or by Executive other than for Good Reason, then:
(i) the Company shall pay Executive’s accrued but unpaid Base Salary through the date of termination, (C) except at the rate in effect at the case of termination for Cause, any bonus earned in a prior year but not yet paid on the date time of termination, (D) reimbursement of all accrued but unused vacation, and reimburse Executive for any unreimbursed business expenses properly incurred prior to the date of termination consistent termination;
(ii) Executive shall not be entitled to receive any payments or Continued Benefits described in this Section 9; and
(iii) the vesting applicable to all Equity Awards shall cease immediately and the Executive shall have a period of 90 days to exercise any and all vested Equity Awards, after which time all Equity Awards shall expire; provided, however, that no such Equity Award shall be exercisable after the expiration of its maximum term pursuant to the terms thereof.
(c) If a Change in Control occurs during the Term of Executive’s employment with the Company policyand the successor corporation (or a parent or subsidiary of the successor corporation) (1) does not offer Executive employment on terms comparable to Executive’s then existing terms of employment with the Company and in connection therewith, Executive terminates employment; or (2) Executive’s employment is terminated by such successor corporation without Cause or by Executive for Good Reason, within one-year after the Change in Control, then:
(i) the Company shall pay Executive’s accrued but unpaid Base Salary through the date of termination, at the rate in effect at the time of termination, accrued but unused vacation, and reimburse Executive for any unreimbursed business expenses incurred prior to the date of termination;
(Eii) any benefits, including any continuation or conversion rights, provided under any employee benefit plan or policy of the Company shall continue to pay Executive’s Base Salary at the rate in effect at the time of termination (not including without regard to any severance, separation pay, or supplemental unemployment benefit plan), reduction in Base Salary that served as the basis for a resignation for Good Reason) for a period of 12 months following the date of termination in accordance with the terms of such plan or policy (the “Accrued Benefits”).Company’s ordinary payroll practice;
(iiiii) In the event of termination of the Executive’s employment by reason of death, the Company shall pay or provide Executive a Performance Bonus in an amount equal to the Executive’s estate: greater of (A1) the Accrued Benefits, target bonus for the applicable calendar year; and (B2) the Executive’s Base Salaryaverage of the Performance Bonus received by Executive for the two years immediately preceding termination;
(iv) the Company shall provide the Continued Benefits to Executive for a period of 12 months following the date of termination or until he obtains new employment, whichever comes first; and
(v) all unvested Equity Awards shall immediately vest in accordance with its normal payroll practices (but not less frequently than monthly)full and remain exercisable, if applicable, for a period of six (6) months from 90 calendar days following the effective date of such termination; provided, (C) an amount equal however, that no such option shall be exercisable after the expiration of its maximum term pursuant to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) terms thereof. In the event of a termination by the Company pursuant order to 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 give effect to the Executive foregoing provision, notwithstanding anything to the Accrued Benefits, (B) pay the Executive a pro-rata annual bonus contrary set forth in respect any agreement governing an Equity Award regarding immediate forfeiture of the fiscal year in which the effective date of termination occurs (determined based on actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s unvested shares upon termination of employmentservice or the duration of post-termination of service exercise periods, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in following any event.
(iv) Except as expressly provided in this Section 10(b), upon the termination of the Executive’s employment, all payments hereunder none of Executive’s equity incentive awards shall ceaseterminate with respect to any vested or unvested portion subject to such Equity Award before 90 days following such termination.
(vd) The payments and benefits described in Sections 10(b)(ii) and 10(b)(iii) are in lieu ofThis Section 9 sets forth the only obligations of the Company with respect to the termination of Executive’s employment with the Company, and Executive acknowledges that, upon the termination of his employment, he shall not be entitled to any payments or benefits which are not explicitly provided in addition tothis Section 9. Further, notwithstanding anything to the contrary contained herein, the Company shall have no obligation to pay, and Executive shall have no right to receive, any compensation, benefits or other severance arrangement maintained by the Company. The payments and benefits described consideration provided for in Sections 10(b)(ii) and 10(b)(iii), this Section 9 (other than any accrued but unpaid Base Salary through the Accrued Benefits, date of termination and any reimbursement of unreimbursed expenses incurred prior to the date of termination) (the “Severance BenefitsPayments”) are conditioned unless Executive executes an agreement in a form satisfactory to the Company (the “Release Agreement”) releasing the Company from any and all liability in connection with the Executive’s employment or the termination thereof that becomes effective no later than 60 days following Executive’s termination (the “Release Deadline”). Except as required by Section 10, the Payments will commence on clauses the first payroll period following the Release Agreement becoming effective; provided, that (Ai) if the Payments (or any portion thereof) constitute “deferred compensation” within the meaning of Section 409A (as defined in Section 10) and (Bii) below:
A. The Executive’s the period commencing on the date of termination and ending on the Release Deadline spans two calendar years, then the Payments (or such portion thereof that constitute “deferred compensation”) will commence on the later of the Release Agreement becoming effective and the first payroll date of the Company in the case second calendar year. Any portion of the Payments that is delayed due to the application of the preceding sentence shall be made on the date that the Payments commence.
(e) Effective as of the date of any termination of the Executive’s deathemployment, his/her estate’s) execution unless otherwise agreed to by Executive and delivery the Board, upon termination of Executive’s employment hereunder for any reason, Executive shall be deemed to have resigned from all offices held at the Company and the expiration or any subsidiary or other affiliate of all applicable statutory revocation periods, by the sixtieth (60th) day following the effective date of his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable yearsuch termination, such payments or benefits shall not commence until including without limitation the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date position of the Executive’s cessation of employmentCSO.
B. (f) The Executive’s continued compliance with Company shall withhold all applicable federal, state and local taxes and social security and such other amounts as may be required by law from all amounts payable to the Executive under this Section 9.
(g) The provisions of Sections 5, 6, 7 and 8 this Section 9 shall survive any termination of this Agreement.
(vih) The Executive For purposes of this Agreement, “Cause” shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt include any of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.following:
Appears in 1 contract
Severance. (i) In If the event of any termination of Executive terminates this Agreement and his employment with the Company for Good Reason or if the Executive’s employment with the Company is terminated by the Company for any reasonreason other than for Cause or the Executive reaching the age of seventy-five (75), including non-renewal of this Agreement by the Company (but not including any circumstances that would give rise to a payment to the Executive pursuant to Section 3.3(a) hereof), the Company shall pay severance to the Executive as follows:
(or his or her estatei) shall severance pay in an amount equal to 1.5 times the Executive’s then-current annual base salary, such amount to be entitled paid in equal installments over the 18-month period immediately following the date of termination in accordance with the Company’s normal payroll practices with such installments to (A) his or her Base Salary through be no less frequent than monthly and to commence on the first payroll date following the date of termination; and
(ii) all accrued but unpaid bonuses for any completed fiscal year and vacation pay, expense reimbursement and other benefits due to the 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 (30) days after the 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 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 COBRA premiums for such coverage (at coverage levels in effect immediately prior to the Executive’s termination) until the earlier of: (A) the expiration of a period of eighteen (18) months from the date of termination or (B) the value date upon which the Executive becomes covered under similar plans of any subsequent employer or is otherwise ineligible for COBRA. All payments set forth in the foregoing items (i) 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 of a separation and release agreement acceptable to the Company governing the termination of the employment relationship between the Executive and the Company and the Executive’s release of all claims against all members of the 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 her accrued but unused vacation and paid time off through causing revocation of same, within sixty (60) days following 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 employment by reason of death, employment. Any Severance Indemnity payments that the Company shall pay or provide Executive would otherwise be entitled to receive prior to the Executive’s estate: (A) time the Accrued Benefitsaforementioned release becomes effective and irrevocable shall be accumulated and paid in a lump sum after the release becomes effective and irrevocable; and if the permissible period during which the Executive may execute and deliver the release and during which the applicable revocation period could expire spans more than one calendar year, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days any payments that the Executive is employed by the Company in entitled to receive during such year) period shall be accumulated and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or lump sum only in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable subsequent calendar year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. (i) In If the event of any termination of Executive terminates this Agreement and his employment with the Company for Good Reason or if the Executive’s employment with the Company is terminated by the Company for any reasonreason 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 pursuant to Section 3.3(a) hereof), the Company shall pay severance to the Executive as follows:
(or his or her estatei) shall severance pay in an amount equal to 1.5 times the Executive’s then-current annual base salary, such amount to be entitled paid in equal installments over the 18-month period immediately following the date of termination in accordance with the Company’s normal payroll practices with such installments to (A) his or her Base Salary through be no less frequent than monthly and to commence on the first payroll date following the date of termination; and
(ii) all accrued but unpaid bonuses for any completed fiscal year and vacation pay, expense reimbursement and other benefits due to the 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 (30) days after the 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 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 COBRA premiums for such coverage (at coverage levels in effect immediately prior to the Executive’s termination) until the earlier of: (A) the expiration of a period of eighteen (18) months from the date of termination or (B) the value date upon which the Executive becomes covered under similar plans of any subsequent employer or is otherwise ineligible for COBRA. All payments set forth in the foregoing items (i) 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 of a separation and release agreement acceptable to the Company governing the termination of the employment relationship between the Executive and the Company and the Executive’s release of all claims against all members of the 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 her accrued but unused vacation and paid time off through causing revocation of same, within sixty (60) days following 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 employment by reason of death, employment. Any Severance Indemnity payments that the Company shall pay or provide Executive would otherwise be entitled to receive prior to the Executive’s estate: (A) time the Accrued Benefitsaforementioned release becomes effective and irrevocable shall be accumulated and paid in a lump sum after the release becomes effective and irrevocable; and if the permissible period during which the Executive may execute and deliver the release and during which the applicable revocation period could expire spans more than one calendar year, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days any payments that the Executive is employed by the Company in entitled to receive during such year) period shall be accumulated and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or lump sum only in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable subsequent calendar year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. (ia) In the event of any termination of the Executive’s that Benefitfocus terminates your employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her accrued but unused vacation and paid time off through the date of termination, (C) except in the case of termination for without Cause, as defined herein, at any bonus earned in a prior year but not yet paid on the date of termination, (D) reimbursement of all business expenses properly incurred time 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during the twelve (12) months after a Change of Control pursuant Control, as defined herein, then upon your execution of a general release of claims satisfactory to Section 10(a)(v)Benefitfocus within the time allowed for execution, which release is not revoked by you during any revocation period allowed by law, Benefitfocus will provide you with the Company shall following severance benefits: (Ai) 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) salary continuation for a period of twelve (12) months from at your then-current rate of base salary; (ii) a portion of your targeted annual bonus determined in accordance with the effective date of such termination, applicable paragraph below; and (Diii) provide if you are eligible for, elect and remain eligible for COBRA continuation coverage, Benefitfocus will pay the Executiveshare of the premium it was paying prior termination during the period you are receiving severance.
b) In the event that Benefitfocus or its acquirer terminates your employment without Cause as defined herein, at the Company’s expensetime of or within twelve (12) months following a Change of Control, as defined herein, then upon your execution of a general release of claims satisfactory to Benefitfocus within the time allowed for execution, which release is not revoked by you during any revocation period allowed by law, Benefitfocus or its acquirer will provide you with senior executive level outplacement services the following severance benefits: (i) salary continuation for a period of twelve (12) months from the date at your then-current rate of termination, using base salary; (ii) a reputable provider selected by the Executive portion of your targeted annual bonus determined in accordance with the Company’s consentapplicable paragraph below; (iii) if you are eligible for, which shall not be unreasonably withheldelect and remain eligible for COBRA continuation coverage, provided that such outplacement expenses shall not exceed $25,000 in any eventBenefitfocus or its acquirer will pay the share of the premium it was paying prior to termination during the period you are receiving severance.
(ivc) Except as expressly provided in this Section 10(b)In either case, upon the termination of the Executive’s employment, all payments hereunder shall cease.
(v) The payments and severance 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, (the “Severance Benefits”) are conditioned will be payable to you beginning on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or her termination of your employment, provided that Benefitfocus, in its sole discretion, may begin the payments earlier. CONFIDENTIAL & PROPRIETARY Exhibit A & B to Employment Agreement 3 ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC. (02/2016)
d) For purposes of this document, you will receive the same severance benefits as upon a termination without Cause if you notify Benefitfocus of your decision to terminate your employment with Benefitfocus within three (3) months of the occurrence of either of the following: (i) a material decrease to your base salary or targeted annual bonus without your consent to an amount less than the then current amount immediately preceding the decrease, or (ii) a material diminution of your authority, job duties, or responsibilities without your consent.
e) As used herein, “Cause” shall mean a determination by Benefitfocus’ board of directors of any of the following: (i) your violation of any applicable material law or regulation respecting the business of Benefitfocus; (ii) your commission of a general release felony or a crime involving moral turpitude, (iii) any act of claims against the Company and its affiliates substantially dishonesty, fraud or misrepresentation in the form attached hereto as Exhibit A relation to your duties to Benefitfocus, (the “Release”). Subject iv) failure to Section 11 below, the Severance Benefits will begin to be paid or provided ten perform in any material respect your duties hereunder after twenty (1020) days written notice and an opportunity to cure such failure and a reasonable opportunity to present to Benefitfocus’ board of directors your position regarding any dispute relating to the existence of such failure; (v) your failure to attempt in good faith to implement a clear and reasonable directive from Benefitfocus’ board of directors or to comply with any of Benefitfocus’ policies and procedures which failure is material and occurs after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein)written notice from Benefitfocus’ board of directors; provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required any act of gross misconduct which is materially and demonstrably injurious to seek or accept other employmentBenefitfocus; or, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation your breach of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will ceasefiduciary responsibility.
Appears in 1 contract
Severance. (a) If the Employment Period is terminated by the Company without Cause or by you for Good Reason, you will be entitled to receive:
(i) In your Base Salary as in effect at the event time of such termination to the extent such amount has accrued through the Termination Date (as defined in Section 5(f) below) and remains unpaid, any termination fully earned and declared but unpaid Target Incentive Bonus as of the Executive’s employment for Termination Date, and any reason, unpaid Expenses that have not been reimbursed by the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through Company as of the date of termination, (B) the value of his or her 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 Termination Date that were incurred prior to the date Termination Date (the sum of termination consistent with Company policythese amounts, 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 BenefitsObligations”).;
(ii) In the event of termination of the Executive’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to one year of your Base Salary, less applicable withholdings, which shall be payable in the Executive’s Target Bonus same amounts and at the same intervals as if the Employment Period had not ended;
(iii) immediate vesting of the portion of all your time-vesting equity awards under the Equity Plan that would have vested in the 12-month period following the Termination Date; and
(iv) if you timely elect continued coverage pursuant to COBRA, payment of your share of the premium cost at the same rate as for active employees of the Company for the fiscal year 12-month period following the Termination Date. The Company’s obligation to make the payments to you described in clauses (ii), (iii) and (iv) of termination pro-rated through this Section 5(a) is conditioned upon your executing and delivering, no later than 45 days following the date of termination Termination Date (determined based on the number of days that the Executive is employed and not revoking), a release relating to your employment by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees favor of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 BenefitsAffiliates and their respective stockholders, (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 actual performance officers, members, managers, directors, employees, subsidiaries and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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 B (the a “Release”). Subject ; provided, further, that until the period to Section 11 belowrevoke such Release has expired, the Severance Benefits will begin Company shall retain any Base Salary installment payment that would otherwise be made pursuant to be paid or provided ten clause (10ii) days after the Release becomes irrevocable (or with respect to any amount payable under of this Section 10(b)(iii)(B5(a), at with such later time as specified therein); provided that if payment being made on the seventy (70) day next regularly scheduled payroll date after such revocation period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable yearexpires. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.ACTIVE.125427969.08
Appears in 1 contract
Severance. (ia) In If Employee’s employment with the event of any Company is terminated by the Company without Cause or by Employee with Good Reason prior to the Expiration Date, and provided that Employee signs and delivers to the Company a Confidential Severance and Release Agreement in a reasonable form as provided by the Company (the “Release Agreement”) within 60 days following the termination of the ExecutiveEmployee’s employment for any reasonwith the Company (such 60th day being referred to as the “Release Date”) and does not revoke such signed Release Agreement, the Executive (or his or her estate) Employee shall be entitled to receive severance compensation equal to the following:
(Ai) his or her Base Salary through if the date Date of termination, (B) the value of his or her 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 Termination occurs prior to the date first anniversary of termination consistent with Company policythe Effective Date, 150 percent (150)% of the sum of the Employee’s annual Base Salary and Target Bonus for purposes of the MIP in effect for the year in which the Termination Date occurs (E) any benefits, including any continuation or conversion rights, provided under any employee benefit plan or policy determined regardless of the actual results 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”).for that year) or
(ii) In if the event Date of termination Termination occurs on or after the first anniversary of the Executive’s employment by reason of death, the Company shall pay or provide Effective Date and prior to the ExecutiveExpiration Date, 150 percent (150)% of the sum of the Employee’s estate: (A) the Accrued Benefits, (B) the Executive’s annual 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, (C) an amount equal to the Executive’s Salary and Target Bonus for purposes of the fiscal MIP in effect for the year of termination pro-rated through in which the date of termination Termination Date occurs (determined based on regardless of the number actual results of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees that year), which amount under Section 5(a)(i) or (ii), as applicable, shall be payable in nine (9) monthly installments equal to one-ninth of such severance compensation, subject to required withholding, payable at the end of each of the Companynext nine (9) for full calendar months following the period described above in clause (B).first full calendar month following the Release Date, and
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during Employee timely and properly elects health continuation coverage under the twelve Consolidated Omnibus Budget Reconciliation Act of 1985 (12) months after a Change of Control pursuant to Section 10(a)(v“COBRA”), the Company shall (Areimburse the Employee for the monthly COBRA premium paid by the Employee for Employee and Employee’s dependents who were covered immediately preceding the Date of Termination. The reimbursement under Section 5(a)(2) pay or provide shall be paid to the Executive Employee prior to the Accrued Benefits, (B) pay the Executive a pro-rata annual bonus in respect last day of the fiscal year month immediately following the month in which the effective date of termination occurs (determined based on actual performance Executive timely remits the premium payment, and the number Employee shall be eligible to receive such reimbursement until the earliest of: (i) the 12-month anniversary of days the Executive is employed by Date of Termination; (ii) the Company in such fiscal year), with such annual bonus (if any) paid at date the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense Employee (or such portion thereof as Employee’s dependents, if applicable) is then funded by the Company for other employees of the Company) for a period of twelve (12) months from the effective date of such termination, no longer eligible to receive COBRA continuation coverage; and (Diii) 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, using a reputable provider selected by on which the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any eventEmployee receives substantially similar coverage from another employer or other source.
(ivb) Except as expressly provided in this Section 10(b), upon the termination of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the Executive’s death, his/her estate’s) execution and delivery Notwithstanding anything to the Company and contrary herein contained, except to the expiration of all applicable statutory revocation periodsextent required by law, by the sixtieth (60th) day following the effective date of his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek pay any amounts under this Section 5 or accept elsewhere in this Agreement if Employee is in breach of any of its obligations under this Agreement or any other employmentAgreement with the Company, including without limitation, all employee policies of the Company and 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 otherwise Employee resigns without Good Reason, Employee shall be entitled to mitigate damages, as a condition to receipt of receive: (i) Employee’s Base Salary earned and payable through the benefits described in Sections 10(b)(iiTermination Date; (ii) and 10(b)(iii), and such benefits shall not be reduced or offset by an amounts received by the Executive from any other source, except accrued but unused vacation/time off to the extent provided in Section 10(b)(vii)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, belowif applicable, as of the Termination Date.
(viid) Any continuation For purposes of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan)Agreement, the Company’s obligation to continue group health coverage under this Section 10(b) will cease.following terms shall have the meanings set forth below:
Appears in 1 contract
Severance. In no way limiting the Company’s policy of employment at will:
(ia) In the event of any termination of the ExecutiveIf Employee’s employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 employment is terminated by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices without Cause (but not less frequently than monthly), for a period of six (6) months from the effective date of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during the twelve (12) months after connection with a Change of Control pursuant which is subject to Section 10(a)(v5(b), the Company shall (A) pay or provide by Employee with Good Reason prior 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly)Expiration Date, and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any event.
within sixty (iv60) Except as expressly provided in this Section 10(b), upon days following the termination of Employee’s employment with the Executive’s employment, all payments hereunder shall cease.
(v) The payments Company Employee signs 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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the Executive’s death, his/her estate’s) execution and delivery delivers to the Company a Confidential Severance and Release Agreement in substantially the expiration of all applicable statutory revocation periods, by the sixtieth (60th) day following the effective date of his or her termination of employment, of a general release of claims against the Company and its affiliates substantially in the same form as that attached hereto as Exhibit A (the “ReleaseRelease Agreement”). Subject to Section 11 below, ) (the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the effective date of the Executive’s cessation Release Agreement is referred to herein as the “Release Date”), Employee shall be entitled to receive:
(i) Severance compensation equal to 75% of employment.the sum of her annual Base Salary and Target Bonus in effect for the year in which the Termination Date occurs, payable in nine monthly installments equal to one-ninth of such severance compensation, subject to required withholding, payable at the end of each of the next nine full calendar months following the first full calendar month following the Release Date;
B. The Executive’s continued compliance with (ii) Coverage at Company expense under the provisions employee health insurance plan of Sections 5the Company for the period of eight months following the Release Date, 6or, 7 and 8 of this Agreementif less, the maximum time period permitted under COBRA.
(vib) The Executive If within 3 months before or six months after a Change of Control Employee’s employment with the Company is terminated (i) by the Company without Cause or (ii) by Employee for any reason, Employee shall not be required entitled to seek receive severance compensation equal to the greater of (A) the sum of her annual Base Salary and Target Bonus in effect for the year in which the Termination Date occurs or accept other employment(B) the sum of her annual Base Salary and Target Bonus in effect for the year in which the Termination Date occurs, or otherwise annualized over the period from the Termination Date until the Expiration Date, which shall be payable immediately upon such termination. “Change of Control” shall have the meaning given to mitigate damages, such term in the 2010 Plan and shall also mean ▇▇▇▇ ▇▇▇▇▇▇▇▇ no longer serving as a condition to receipt President of the benefits 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 source, except to the extent provided in Section 10(b)(vii), belowCompany.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. Subject to Section 6 hereof, if (i) In the event Company terminates the employment of any termination of the Executive’s Employee without Cause, or (ii) Employee terminates his employment for any reasonGood Reason, the Executive (or his or her estate) then Employee shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value receive all of his or her accrued but unused vacation and paid time off through the date of termination, (C) except in the case of termination for Causethen-unpaid base salary, any bonus cash compensation 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), for a period of six (6) months from Employee through the effective date of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company maximum annual rate for other employees of the Company) bonus cash compensation provided for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 but on a pro-rata annual bonus in respect rated basis for the portion of the fiscal year that shall have elapsed when the termination occurs). In addition, subject to Employee’s execution and non-revocation of an agreement containing a release of any and all legal claims and other termination-related provisions in which the effective date of termination occurs (determined based on actual performance and the number of days the Executive is employed by a form acceptable to the Company in such fiscal year(the “Separation Agreement”), with Employee shall be entitled to receive upon such annual bonus (if any) paid at termination an additional cash payment in the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for a period amount of twelve (12) months from of such base salary (the “Severance Payment”), and notwithstanding the vesting and exercisability provisions otherwise applicable to the options issued to Employee under prior agreements, the vesting of all shares of common stock underlying such options shall accelerate as of the effective date of such termination, and such options shall remain exercisable for the remainder of their terms. The Company shall pay the Severance Payment in substantially equal installments over six (D) provide the Executive, at the Company’s expense, with senior executive level outplacement services for a period of twelve (126) months from (the date of termination, using a reputable provider selected by the Executive “Severance Benefits Period”) in accordance with the Company’s consentstandard payroll practice, in arrears beginning on the first payroll date that occurs following the thirtieth (30th) day after the date on which Employee’s employment with the Company terminates; provided, that prior to such date, the Separation Agreement becomes effective. Solely for purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), each installment of the Severance Payment will be considered a separate payment. Notwithstanding the foregoing, the Company shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in required to pay any event.
(iv) Except as expressly provided in this Section 10(b), upon the termination of the Executive’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, severance pay for 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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 period following the effective date of his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that Employee’s employment hereunder if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits Employee shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with materially violated the provisions of Sections 53, 68, 7 and 8 10 or 11 of this Agreement.
Agreement and such violation is not cured within thirty (vi30) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to days following receipt of written notice from the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment Company containing a description of the applicable premium violation and a demand for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will ceaseimmediate cure.
Appears in 1 contract
Severance. (i) In the event of any Upon termination of the ExecutiveEmployee’s employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 employment by reason of death, the Company shall pay or provide to the Executive’s estateEmployee: (Aa) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (any earned but not less frequently than monthly), for a period of six (6) months from the effective date of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated unpaid base salary through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (Db) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the any expenses owed to Employee, provided Employee properly submits documentation therefor in accordance with applicable Company for other employees of the Company) for the period described above in clause (B).
(iii) policy. In the event of a termination by that the Company terminates Employee’s employment without Cause (and not due to Employee’s death or disability), Employee shall be additionally entitled to payment of an amount equal to Employee’s annual base salary for the year of termination, multiplied by one (1.0) (“Cash Severance”) and subject to Employee making a timely election pursuant to Section 10(a)(iiithe Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, continued health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) care coverage for a period ending on the earlier of twelve (12) months from commencing on the effective date Date of such terminationTermination or until Employee (“Benefit Continuation” and, 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, using a reputable provider selected by the Executive together with the Company’s consentCash Severance, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses receives comparable coverage from a subsequent employer for Employee (A) and (B) below:
A. The Executive’s eligible dependents, if any) under the Company’s health plans on the same basis as such coverage is made available to executives employed by the Company (or including, without limitation, co-pays, deductibles and other required payments and limitations) with the Company paying the applicable COBRA premium in the case excess of the amount paid by active employees for such coverage or otherwise providing such coverage to Employee for the amount paid by active employees for such coverage and Executive’s death, his/her estate’s) execution qualifying event for purposes of COBRA shall be treated as occurring at the date of such termination. Cash Severance and delivery to Benefit Continuation shall be paid or provided only if Employee completes at least one year of employment with the Company and the expiration at an executive level. Any Severance shall be paid in a monthly amount pro rata in twelve (12) monthly payments, commencing within thirty (30) days of all applicable statutory revocation periods, by the sixtieth (60th) day following the effective Employee’s date of his or her termination of employmentprovided that Employee has timely executed, of delivered and not revoked (with any applicable revocation period having expired) a general release of claims against in the form provided by the Company. Payments of Severance Benefits will cease upon Employee entering other full-time employment regardless of the nature or compensation of such employment and Employee shall notify the Company in writing of such other employment no later than one week before Employee commences it. The Company and its Affiliates shall have no further obligations to Employee related to Employee’s termination of employment and Employee shall immediately resign, and shall be deemed to have immediately resigned without the requirement of any additional action, from any and all position Employee holds with the Company and its affiliates substantially in the form attached hereto as Exhibit A (the “Release”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the Affiliates on Employee’s date of termination begins termination. Employee shall cooperate with the Company and its Affiliates in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until taking any actions necessary to effectuate the second taxable yearforegoing. The initial payment will include definition of “Cause” and related severance provisions herein shall supersede any Severance Benefits that, but for agreement relating to the above-described timing rule, would have otherwise been paid since same subject matter among Employee and the date Company or any affiliate of the Executive’s cessation of employmentCompany.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Sources: Executive Severance and Restrictive Covenant Agreement (BRC Inc.)
Severance. If, during the Benefits Continuation Period, RMT Partner or its affiliates terminates the employment of any Transferred Employee without Cause or subjects any Transferred Employee to any indefinite lay-off, or if any Transferred Employee voluntarily terminates employment because a condition of continued employment is such employee’s agreement to relocate to regularly report to work at a job site more than 50 miles from such employee’s job site immediately prior to the such employee’s Transfer Time (each such employee whose employment is terminated under one of the foregoing circumstances, a “Terminated Employee”), RMT Partner or its affiliates shall pay to such Terminated Employee severance in an amount equal to the greatest of (i) In the event severance pay due under the applicable severance plan of RMT Partner and its affiliates, (ii) the severance pay that would have been due under the severance plan of Parent and its affiliates (including a CBA) that was applicable to such Terminated Employee immediately prior to such employee’s Transfer Time, (iii) in the case of exempt U.S. Non-Represented Employees, three months’ base salary, (iv) in the case of non-exempt U.S. Non-Represented Employees (including both hourly and salaried non-exempt employees), six weeks’ base salary and (v) the severance and termination pay and benefits continuation and any termination other notice, pay in lieu of notice, pay, benefits or compensation that is required by applicable law. The level of severance benefits a Terminated Employee is entitled to receive pursuant to clauses (i) through (v) of the Executivepreceding sentence shall be determined by taking into account such Terminated Employee’s employment for service with Parent and its affiliates (and any reasonpredecessors) prior to such employee’s Transfer Time and such Terminated Employee’s service with RMT Partner and its affiliates on and after such employee’s Transfer Time. In addition, subject to the Executive (immediately following sentence, RMT Partner or its affiliates shall continue to provide to each Terminated Employee and his or her estatecovered dependents with group health plan coverage (on the same terms as are applicable to similarly situated active employees and their covered dependents, and at no greater cost to such Terminated Employee than would be applicable were such Terminated Employee still employed) during the Severance Period, provided that (i) in the case of U.S. Transferred Employees, such employees properly elect COBRA Coverage and (ii) such continued group health plan coverage shall cease to be entitled provided upon the first to occur of the following: (A) his or her Base Salary through solely in the case of U.S. Transferred Employees, the date of terminationsuch Terminated Employee ceases to be eligible for COBRA Coverage, (B) the value of his or her accrued but unused vacation date that such Terminated Employee becomes eligible for another group health plan from a subsequent employer, and paid time off through the date of termination, (C) except the date on which the Severance Period expires. RMT Partner or its affiliates shall provide outplacement services to any Terminated Employee entitled to severance benefits pursuant to this paragraph that are reasonable with respect to such employee. For purposes of this paragraph, “Cause” shall mean, (1) solely in the case of termination for Causeany Canadian Business Employee, any bonus earned conduct which allows the employer to terminate such employee without notice or pay in a prior year but not yet paid on the date lieu 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 notice under any employee benefit plan or policy of the Company (not including any severance, separation payapplicable law, or supplemental unemployment benefit plan), in accordance with the terms of such plan or policy (the “Accrued Benefits”).
(ii2) In the event of termination of the Executive’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or solely in the case of the Executiveany U.S. Business Employee, such U.S. Business Employee’s deathmaterial and willful misconduct, his/her estate’swillful refusal (other than as a result of incapacity due to physical or mental illness) 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 perform substantially his or her termination of employmentjob responsibilities after a written demand for substantial performance has been delivered to such employee by RMT Partner or its affiliates, or conviction of a general release of claims against the Company and its affiliates substantially in the form attached hereto as Exhibit A (the felony or non-felony crime involving fraud or dishonesty. “Release”). Subject to Section 11 belowSeverance Period” shall mean, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B)Terminated Employee, at a number of weeks determined by dividing such later time as specified therein); provided that if the seventy (70) day period Terminated Employee’s cash severance benefit by such Terminated Employee’s weekly base rate of pay. At and following the date applicable Transfer Time, RMT Partner and its affiliates shall be solely liable with respect to the Business Employees for all severance and termination pay and benefits continuation and any other notice, pay in lieu of termination begins in one taxable year notice, pay, benefits or compensation that is required by applicable law, and ends in a second taxable yearshall indemnify and hold harmless Parent and its affiliates with respect to all such liabilities, such payments obligations and commitments. Notwithstanding any provision of this Section 11.3(d) to the contrary, except as otherwise required by applicable law or benefits shall not commence until the second taxable year. The initial payment an applicable collective bargaining agreement, no Business Employee will include be entitled to any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation severance or separation benefits pursuant to this Section 11.3(d) unless and until such Business Employee executes a release of employment.
B. The Executive’s continued compliance with the provisions claims in favor of Sections 5Parent, 6RMT Partner and each of their respective affiliates and each of their respective predecessors, 7 successors, parents and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits described in Sections 10(b)(ii) and 10(b)(iii)affiliates, and such benefits shall not be reduced or offset by an amounts received by their respective present and former officers, directors, employees and agents, and the Executive from any other source, except to the extent provided in Section 10(b)(vii), belowrelease becomes effective and irrevocable.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Sources: RMT Transaction Agreement (Ralcorp Holdings Inc /Mo)
Severance. (a) If (i) In the event Company terminates the employment of any the Executive against his will and without Cause (including by giving notice of termination of the Executive’s Agreement pursuant to Section 5), or (ii) the Executive terminates his employment for any reasonGood Reason, if the Executive (or his or her estate) executes and does not revoke a standard release in a form reasonably acceptable to the Company the Executive shall be entitled to (A) his or her Base Salary receive salary, Incentive Compensation and vacation accrued through the date of terminationTermination Date, (B) plus the value of his or her 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”).following:
(ii) In the event of termination of the Executive’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (Ci) an amount equal to the two years of Executive’s Target Bonus for Base Salary in effect on the fiscal year of termination Termination Date;
(ii) a pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) amount of Incentive Compensation Executive would earn for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and if the number results of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination operations of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for a period of twelve (12) months from the effective date beginning of such termination, and (D) provide fiscal year to 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, Termination Date were annualized (the “Severance BenefitsPro-Rated Incentive Compensation”); and
(iii) are conditioned on clauses full vesting of all outstanding stock options held by Executive. The Company shall make the termination payment required hereunder within thirty (A30) and (B) below:
A. The Executive’s (or in the case days of the Executive’s deathTermination Date. Notwithstanding the foregoing, 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek pay any severance pay for any period following the Termination Date if the Executive violates the provisions of Section 13 of this Agreement in any material respect, and fails to cure such violation within thirty (30) days after written notice from the Company to the Executive detailing such violation.
(b) If (i) the Executive voluntarily terminates his employment other than for Good Reason, (ii) the Executive’s employment is terminated due to death or accept other employmentDisability, or otherwise to mitigate damages, as a condition to receipt of (iii) the benefits described in Sections 10(b)(ii) and 10(b)(iii), and such benefits shall not be reduced or offset by an amounts received Executive is terminated by the Company for Cause, then the Executive from any other source, except shall be entitled to receive salary and accrued vacation through the extent Termination Date only. In the event of death or Disability the Executive shall also be entitled to receive the Pro-Rated Incentive Compensation and vesting of outstanding stock options as provided in Section 10(b)(vii7(a), below.
(viic) Any Subject to Executive timely electing continuation of health insurance coverage under this Section 10(b) will be accomplished by the Company’s waiver or payment Title X of the applicable premium for COBRA continuation coverage. To Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the extent Company shall subsidize Executive (or and his eligible dependents, ’ COBRA premiums so that Executive pays the same premium as applicablean active employee of the Company for a period equal to the lesser of (i) are not eligibleeighteen (18) months following Executive’s termination date, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s ii) the date on which Executive becomes covered under the group health plan), the Company’s obligation to continue plans of another employer with comparable group health coverage under benefits and levels of coverage; and
(d) The Executive acknowledges that, upon termination of his employment, he is entitled to no other compensation, severance or other benefits other than those specifically set forth in this Section 10(b) will ceaseAgreement or any applicable Stock Option Agreement, or pursuant to any Applicable Benefit Plan.
Appears in 1 contract
Severance. Pursuant to the terms of this Agreement, Company shall pay Employee Severance Pay for the number of months stated in Exhibit A as the “Severance Pay Period” if the Company terminates the Employee’s employment without Cause. Employee is not entitled to Severance Pay for a termination based on Death/Disability, Resignation, or termination for Cause unless the Company advises Employee of its intent to enforce Employee’s non-compete obligations under Section 3.3 of this Agreement. Employee acknowledges and agrees that, regardless of the reason for termination, Employee’s continued eligibility for Severance Pay, if applicable, is contingent upon Employee’s compliance with Section 3.3 of this Agreement and that Employee shall not be entitled to any Severance Pay, and Company can discontinue the payment of any Severance Pay, if Employee violates the provisions of Sections 3.3 of this Agreement. To the extent Employee is eligible for Severance Pay under this Agreement, such Severance Pay is contingent upon Employee’s execution of a Release of All Claims (i“Release”) presented by the Company. In the event of Employee refuses to sign and/or revokes any termination of the Executive’s employment for any reasonsuch Release, the Executive (or his or her estate) Employee acknowledges and agrees that Employee shall not be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 Severance Pay so that 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 shall have no further obligation to compensate Employee under this Agreement for termination of employment other than paying earned but unpaid salary and accrued vacation. To the Executive’s employment by reason of deathextent Employee is eligible for Severance Pay under this Agreement, the Company shall pay or such Severance Pay monthly; provided, however, that the Company shall make no payments until six months after termination, at which point all delayed payments will be made in a lump sum, if Employee is a “Specified Employee” as defined in Section 409A. The Company shall provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), Employee payments for a period of six (6) months from the effective date of such termination, (C) an amount equal to the Executive’s Target Bonus COBRA for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents medical insurance coverage at the Company’s expense (or such portion thereof as existing level during the Severance Pay Period regardless of whether Severance Pay is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii)paid monthly, delayed, 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employmentlump sum.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. (ia) In the event of any termination of the Executive’s If your employment for any reason, the Executive is terminated by Rimage without Cause (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently other than monthly), for a period of six (6) months from the effective date of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during the twelve (12) months after month period following a Change in Control, including the date of Control pursuant to Section 10(a)(vthe Change in Control), the Company shall (A) pay or provide subject to the Executive the Accrued Benefits, (B) pay the Executive a pro-rata annual bonus condition stated in respect of the fiscal year in which the effective date of termination occurs (determined based on actual performance and the number of days the Executive is employed by the Company in such fiscal yearSection 1(c), with such annual bonus Rimage will:
(if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (Ci) continue to pay the Executive his or her Base Salary, your base salary in accordance with its normal Rimage’s regular payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for a period of twelve (12) months from thereafter subject to applicable tax withholding;
(ii) pay you an amount equal to the effective average of the annual short-term incentive bonus amounts you received with respect to the three complete calendar years prior to the date of such your termination, and (D) provide the Executivesuch bonus payment, at the Companysubject to applicable tax withholding, to be made in equal installments consistent with Rimage’s expense, with senior executive level outplacement services for regular payroll practices over a period of twelve (12) months from the date of your termination; and
(iii) if you are eligible for and elect COBRA or state continuation of the Rimage health, dental and group life insurance benefits, Rimage shall pay the portion of such COBRA premium that it pays for active employees until the earlier of: (A) twelve (12) months from the date COBRA coverage begins; or (B) the date COBRA coverage otherwise terminates. You shall pay the remaining portion of the premiums for such benefits during such period and, if applicable, the full premium thereafter. Payment of the COBRA premium shall be made contemporaneous with the date the premiums are incurred and may not be exchanged for any other benefit or cash payment. Payment of premiums in one year will not affect the payment of premiums in any other year. In the event the payment of premiums under this paragraph would result in a discriminatory benefit under the Patient Protection and Affordable Care Act (the “Act”), the amount of the payment shall be treated as taxable income to you, or otherwise revised to comply with the Act, preserving, to the greatest extent possible, the economic benefit provided by such premium payment.
(b) If you resign (other than for Good Reason during the twelve (12) month period following a Change in Control, including the date of the Change in Control), if Rimage terminates your employment for Cause or if your employment terminates as a result of your death or disability, you shall be entitled to receive your base salary accrued but unpaid as of the date of termination, using a reputable provider selected by the Executive with the Company’s consent, which but shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in entitled to receive any eventsalary continuation benefit thereafter.
(ivc) Except as expressly provided in this Section 10(b), upon the termination of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the In case of termination without Cause, you shall be entitled to receive the Executive’s death, his/her estate’samounts due you under Section 1(a) only upon your 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 his or her termination of employment, Rimage of a general release of claims against the Company and its affiliates substantially in the form attached hereto as Exhibit A (the “Release”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable and all claims against Rimage and its officers, directors, employees, agents and shareholders, acceptable in form and substance to Rimage in all respects, and provided you continue to comply with the terms of the Nondisclosure and Noncompetition Agreement with Rimage. Rimage will deliver the release to you no later than 5 business days following your termination of employment. If you do not execute the release within the time period set forth in the release, you will be deemed to have waived any right to payment under this Section 10(b)(iii)(B)1. Each installment shall be considered a separate payment for purposes of Code §409A. Any installment otherwise due prior to the execution of the release and expiration of the right to rescind will be paid to you as part of the first payment, at such later time as specified therein); provided that which will occur 60 days after your termination of employment if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employmentabove conditions are satisfied.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 (d) For purposes of this Agreement.
(vi) The Executive , “termination of employment” shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt interpreted consistent with the term “separation from service” within the meaning of the benefits described in Sections 10(b)(ii) and 10(b)(iiiTreas. Reg. §1.409A-1(h), and such benefits for purposes of Code §409A, each payment shall not be reduced or offset by an amounts received by the Executive from any other source, except to the extent provided in Section 10(b)(vii), belowconsidered a separate payment.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Sources: Severance Agreement (Rimage Corp)
Severance. (ia) In the event of addition to any termination of the Executive’s employment for any reasonaccrued, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her accrued declared but unused vacation unpaid base salary 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on of employment, which shall be payable to Employee regardless of the number of days that the Executive is employed by the Company in such year) and paid promptly following reasons for such termination, and (D) continued health benefits for the Executiveif Employee’s eligible dependents at the Company’s expense (or such portion thereof as employment under this Agreement is then funded terminated by the Company for other employees than Cause, then Employee shall be entitled to receive her salary until the scheduled expiration of this Agreement (the Company) for the period described above in clause (B“Severance Benefit”); provided, however, that during such time Employee shall seek other employment and any compensation received from such other employment shall be offset against any Severance Benefit.
(iiib) In Notwithstanding anything in this Agreement to the contrary, Employee shall not be entitled to any of the Severance Benefit described herein if (i) in the event of a termination Change of Control (A) Employee is offered Comparable Employment by a Successor Company (as defined below); or (B) Employee accepts employment with a Successor Company (other than transition services that may be requested of Employee by the Company pursuant to Section 10(a)(iiiSuccessor Company), regardless of whether that employment constitutes Comparable Employment or (ii) if the Executive terminates this Agreement during the twelve (12) months after Employee accepts employment with another company on comparable terms following termination for other than Cause. The term “Successor Company” means, upon a Change of Control pursuant Control, a successor to Section 10(a)(v), the Company shall (A) pay as a result of the acquisition of securities, a merger, liquidation, reorganization, consolidation or provide sale of assets of the Company, or otherwise a successor to the Executive the Accrued Benefits, (B) pay the Executive Company as a pro-rata annual bonus in respect result of the fiscal year in which the effective date Change of termination occurs (determined based on actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the ExecutiveControl. Severance benefits shall be payable only upon Employee’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance employment with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which as provided herein. In no event shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or have any liability for severance with respect to any amount payable under Section 10(b)(iii)(B)Employee’s termination of employment with a Successor Company. For purposes of this Agreement, at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits “Comparable Employment” shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but mean an offer to continue this Agreement for the above-described timing ruleremaining term, or an offer for a new contract incorporating substantially all of the terms of this Agreement as they would have otherwise been paid since apply as of the date of the Executiveclosing of a transaction which constitutes a Change of Control, including, at least, Employee’s cessation of employmentthen current base salary, formula bonus, perquisites and benefits.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Sources: Employment Agreement (Cascade Sled Dog Adventures Inc)
Severance. (i) In the event of any termination of the Executive’s employment for any reason, the Executive (or his or her estate) A. Employee shall be entitled to severance pay of a lump sum payment equal to twelve (A12) his or her months’ Base Salary through the date of termination, (B) the value of his or her accrued but unused vacation and paid time off through the date of termination, (C) except in the case event that City either terminates Employee’s employment without cause or provides notice of termination for Causenonrenewal of this Third Amended Agreement, 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 the provisions 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) Section 9. In the event that the Parties mutually agree that Employee will thereafter continue employment as City Manager, the severance payment to Employee shall be reduced as provided for in Section 9. The severance under this Third Amended Agreement shall be subject to the restrictions set forth in Government Code section 53260. Said payment of termination severance pay shall be conditioned upon Employee signing a waiver and release agreement forever releasing and waiving any and all claims against the City in a form acceptable to the City. Employee shall receive the severance payment in a lump sum payment minus all applicable deductions fifteen (15) business days after execution of the Executivewaiver and release agreement. Employee shall not receive any severance payments if she resigns, is terminated for cause, or if a waiver and release agreement is not executed by the parties.
B. In the event City terminates Employee’s employment without cause, Employer shall extend to Employee the right to continue health insurance as may be required by reason of death, the Company shall pay or provide and pursuant to the Executiveterms and conditions of the Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA”). Employer agrees to pay Employee’s estate: COBRA coverage for the same number of months for which the Employee is entitled to severance pay under this Section, or until the Employee either secures full-time employment or obtains other health insurance, whichever of these events first occurs. Employee shall notify Employer within five days of securing new full-time employment or insurance.
C. This Section does not confer any property rights on Employee, as she remains an at-will employee. If Employer terminates Employee’s employment for cause (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthlyalso terminating this Third Amended Agreement), Employee shall not be entitled to any additional compensation or payment, including severance, but shall be entitled only to accrued base salary and vacation pay, and any other accrued and unused benefit allowances according to their terms. The phrase “termination for cause” only pertains to Employee’s eligibility for severance as described in this Section. A “termination for cause” for purposes of severance includes only the following:
1. Conviction of, or plea of guilty or nolo contendere to, any crime or offense (other than minor traffic violations or similar offenses) which is likely to have a material adverse impact on the City or on the Employee’s reputation.
2. Proven failure of the Employee to observe or perform any of her duties and obligations, if that failure continues for a period of six thirty (630) months from the effective date of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of business days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using receipt of notice from the City Council specifying the acts or omissions deemed to amount to that failure.
3. Conviction of any crime involving an “abuse of office or position,” as that term is defined in Government Code Section 53243.4.
4. Repeated failure to carry out a reputable provider selected directive or directives of the City Council made by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any eventCity Council as a body at a Brown Act compliant meeting.
5. Any grossly negligent action or inaction by Employee that materially and adversely: (iva) Except as expressly provided in this Section 10(b), upon impedes or disrupts the termination operations of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (City or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.organizational units;
Appears in 1 contract
Sources: Employment Agreement
Severance. (ia) In If Employee’s employment with the event of any Company is terminated by the Company without Cause or by Employee with Good Reason prior to the Expiration Date, and provided that Employee signs and delivers to the Company a Confidential Severance and Release Agreement in a reasonable form as provided by the Company (the “Release Agreement”) within 60 days following the termination of the ExecutiveEmployee’s employment for any reasonwith the Company (such 60th day being referred to as the “Release Date”) and does not revoke such signed Release Agreement pursuant to the terms thereof, the Executive (or his or her estate) Employee shall be entitled to receive severance compensation equal to the following:
(Ai) his or her 150 percent of the Employee’s annual Base Salary through and Target Bonus (determined regardless of the date of termination, (B) the value of his or her 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 actual results of the Company for that year) in effect at the Termination Date, which amount under Section 5(a)(i) or (not including any severance, separation pay, or supplemental unemployment benefit planii), as applicable, shall be payable in accordance with the terms nine (9) monthly installments equal to one-ninth of such plan or policy severance compensation, subject to required withholding, payable at the end of each of the next nine (9) full calendar months following the “Accrued Benefits”).first full calendar month following the Release Date, and
(ii) In the event of termination of the Executive’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during Employee timely and properly elects health continuation coverage under the twelve Consolidated Omnibus Budget Reconciliation Act of 1985 (12) months after a Change of Control pursuant to Section 10(a)(v“COBRA”), the Company shall (Areimburse the Employee for the monthly COBRA premium paid by the Employee for Employee and Employee’s dependents who were covered immediately preceding the Termination Date. The reimbursement under Section 5(a)(2) pay or provide shall be paid to the Executive Employee prior to the Accrued Benefits, (B) pay the Executive a pro-rata annual bonus in respect last day of the fiscal year month immediately following the month in which the effective date of termination occurs (determined based on actual performance Executive timely remits the premium payment, and the number Employee shall be eligible to receive such reimbursement until the earliest of: (i) the 12-month anniversary of days the Executive is employed by Termination Date; (ii) the Company in such fiscal year), with such annual bonus (if any) paid at date the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense Employee (or such portion thereof as Employee’s dependents, if applicable) is then funded by the Company for other employees of the Company) for a period of twelve (12) months from the effective date of such termination, no longer eligible to receive COBRA continuation coverage; and (Diii) 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, using a reputable provider selected by on which the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any eventEmployee receives substantially similar coverage from another employer or other source.
(ivb) Except as expressly provided in this Section 10(b), upon the termination of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the Executive’s death, his/her estate’s) execution and delivery Notwithstanding anything to the Company and contrary herein contained, except to the expiration of all applicable statutory revocation periodsextent required by law, by the sixtieth (60th) day following the effective date of his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek pay any amounts under this Section 5 or accept elsewhere in this Agreement if Employee is in breach of any of its obligations under this Agreement or any other employmentAgreement with the Company, including without limitation, all employee policies of the Company and any obligation relating to the treatment of Company confidential information and any non-compete obligation, but as to all of these, only if materially injurious to the Company.
(c) If Employee’s employment with the Company is terminated for Cause or death or Disability, or otherwise Employee resigns without Good Reason, Employee shall be entitled to mitigate damages, as a condition to receipt of receive: (i) Employee’s Base Salary earned and payable through the benefits described in Sections 10(b)(iiTermination Date; (ii) and 10(b)(iii), and such benefits shall not be reduced or offset by an amounts received by the Executive from any other source, except accrued but unused vacation/time off to the extent provided in Section 10(b)(vii)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, belowif applicable, as of the Termination Date.
(viid) Any continuation For purposes of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan)Agreement, the Company’s obligation to continue group health coverage under this Section 10(b) will cease.following terms shall have the meanings set forth below:
Appears in 1 contract
Severance. 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 prior to the Expiration Date, and provided that all of the following have occurred within 60 days following the termination of Employee’s employment with the Company: (i) In Employee first signs and delivers to the event of Company a Confidential Severance and Release Agreement in substantially the same form as that attached hereto as Exhibit B (the “Release Agreement”), (ii) any termination revocation right of the Executive’s employment for any reasonEmployee under such Release Agreement shall have expired, and (iii) such Release Agreement shall have become effective (the Executive date that all of the conditions set forth in (or his or her estatei), (ii) and (iii) above are met to be referred to as the “Release Date”), Employee shall be entitled to receive:
(Ai) Severance compensation equal to two-thirds of his or her annual Base Salary through the date of termination, (B) the value of his or her accrued but unused vacation and paid time off through the date of termination, (C) except in the case of termination “Target Bonus” 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 purposes of the Company (not including any severanceMIP in effect for the year in which the Termination Date occurs, separation pay, or supplemental unemployment benefit plan), payable in accordance with the terms eight monthly installments equal to one-eighth of such plan or policy severance compensation, subject to required withholding, payable at the end of each of the next eight (8) full calendar months following the “Accrued Benefits”).first full calendar month following the Release Date;
(ii) In Coverage at Company expense under the event employee health insurance plan of termination of the Executive’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees period of twenty-four months following the Company) for Release Date, or, if less, the maximum time period described above in clause (B)permitted under COBRA.
(iiib) In the event of a termination by the Company pursuant to 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 Notwithstanding anything to the Executive the Accrued Benefitscontrary herein contained, (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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek pay any amounts under this Section 5 or accept elsewhere in this Agreement if Employee is in breach of any of its obligations under this Agreement or any other employmentAgreement 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 otherwise Employee resigns without Good Reason, Employee shall be entitled to mitigate damages, as a condition to receipt of receive only: (i) Employee’s Base Salary earned and payable through the benefits described in Sections 10(b)(iiTermination Date; (ii) and 10(b)(iii), and such benefits shall not be reduced or offset by an amounts received by the Executive from any other source, except accrued but unused vacation/time off to the extent provided in Section 10(b)(vii)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, belowif applicable, as of the Termination Date.
(viid) Any continuation For purposes of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan)Agreement, the Company’s obligation to continue group health coverage under this Section 10(b) will cease.following terms shall have the meanings set forth below:
Appears in 1 contract
Severance. (i) In the event of that the Company terminates Employee’s employment at any termination time, upon thirty (30) days’ written notice, without Cause, then Employee’s sole remedy shall be payment of the Executive’s employment for any reason, following Severance Benefit:
A. If termination without Cause occurs during the Executive (or his or her estate) Initial Term Employee shall be entitled to a severance payment in an amount equal to three (A3) his months’ base salary at the rate then in effect. If termination without Cause occurs during the first Renewal Term Employee shall be entitled to a severance payment in an amount equal to six (6) months’ base salary at the rate then in effect. If termination without Cause occurs during the second Renewal Term Employee shall be entitled to a severance payment in an amount equal to nine (9) months’ base salary at the rate then in effect. If termination without Cause occurs during the third or her Base Salary through any subsequent Renewal Term Employee shall be entitled to a severance payment in an amount equal to twelve (12) months’ base salary at the date of termination, (B) the value of his or her accrued but unused vacation and paid time off through the date of termination, (C) except rate then 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 effect. If 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 employment by reason of deathterminates this Agreement without Cause, the Company shall pay or provide have the right at its option, to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal require Employee to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at immediately leave the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii)premises; provided, or if the Executive terminates this Agreement during the twelve (12) months after a Change of Control pursuant to Section 10(a)(v), that the Company shall be obligated to pay (Aas additional severance) pay or provide to Employee’s base salary during the Executive the Accrued Benefits30-day notice period.
B. Employee shall not be entitled to, (B) pay the Executive a pro-rata annual and shall not receive any cash bonus in respect of the fiscal paid for any year in which the effective date of termination occurs (determined based occurs, on actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his pro rata basis or her eligible dependents’, health insurance benefits at the Company’s expense (or such otherwise. The base salary portion thereof as is then funded by the 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 Executiveseverance shall be payable, at the Company’s expenseoption, in a lump sum or in equal monthly installments consistent with senior executive level outplacement services the Company’s ordinary payroll practices.
C. In the event Employee elects continuing insurance coverage under the Company’s Health Benefit Plan pursuant to the Consolidated Omnibus Budget Reconciliation Act (COBRA) following any termination without Cause, then, in addition to payment of salary as set forth above, the Company shall reimburse Employee for all premiums paid by Employee for said continuation coverage for a period of twelve (12) months from the date of termination, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any eventthree-months.
(iv) Except as expressly provided in this Section 10(b), upon the termination of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. UIC acknowledges that Executive may terminate his employment at any time, with or without cause, by notice to UIC to that effect. Executive agree to continue to perform the duties of his employment for such reasonable period as UIC may request, not exceeding 30 days, after the date of his termination notice to UIC, during which period UIC shall pay Executive one-twelfth (1/12) of his base Salary and continue his benefits then in effect. Executive acknowledge that UIC may terminate his employment at any time, with or without Cause (as defined in Section 10 of this Agreement), by notice to Executive to that effect. Executive's entitlement to severance pay shall be as stated below. Except as otherwise provided in Section 5(b) with respect to severance arising from a Sale of UIC, if (a) Executive is terminated by UIC without Cause, or (b) Executive terminates this Agreement because of Constructive Termination (as defined in Section 10 of this Agreement), as severance compensation UIC shall continue to pay to Executive, on a monthly basis, the sum of (i) In the event of any termination of the Executive’s employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through as set forth in Section 3 hereof in effect at the date time of termination, his termination divided by twelve (B12) plus (ii) the value average of his or her accrued but unused vacation and Incentive Compensation paid time off through the date of terminationto or, (C) except in the case of termination for Cause, any bonus earned in a prior year but if not yet paid on for the date preceding year, owing to Executive for the two (2) years immediately preceding his termination divided by twelve (12)],less withholding as required by law, for the greater of terminationtwenty-four (24) months or the remaining term of this Agreement, provided that (D1) reimbursement of all business expenses properly incurred prior to UIC's commencing such payments, Executive and UIC sign a mutual general release substantially the date of termination consistent with Company policyform attached hereto as EXHIBIT A, and (E2) any benefitsprovision of Executive's current Noncompetition and Nonsolicitation covenants (as set forth in Section 9 of this Agreement) to the contrary notwithstanding, including any continuation or conversion rightsExecutive agrees that he shall continuously abide by such covenants for the period that such payments are being made to Executive. In addition, 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 employment by reason of death, the Company UIC shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (Executive incentive compensation earned but not less frequently than monthly), for a period unpaid as of six (6) months from the effective date of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on prorated for the number period of days time during the applicable bonus year that the Executive is employed by the Company in such yearworked from January 1st to date of termination. Executive shall also receive continuation of fully paid (i) health insurance coverage for Executive and paid promptly following such terminationhis family members, (ii) Disability Insurance, and (Diii) continued health benefits for the Executive’s eligible dependents Life Insurance at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above level in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s effect upon termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for a period of twelve the greater of two (122) months from years or 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 remaining term of this Agreement.
(vi) The . Executive shall not be receive such severance payments if Executive is terminated for Cause, as defined in SECTION 10 of this Agreement. In the event Executive is terminated by UIC without cause, and during the period of time he is receiving severance benefits hereunder a Sale of UIC shall occur, as the term Sale is defined in Section 4.1(b)(iii)(w-z) in the UIC Stock Option Agreement, immediately prior to or upon the closing of the transaction in which such a Sale shall occur, UIC shall calculate the aggregate amount of the remainder of the monthly payments required to seek or accept other employmentbe made to Executive pursuant to this Section 6 and shall place such sum, or otherwise without discount, in a reasonable and customary escrow account to mitigate damages, as a condition to receipt secure UIC's and/or its successor's payment of the benefits described in Sections 10(b)(ii) and 10(b)(iii), and remainder of such benefits monthly payment obligation to Executive. The Escrow Agent shall not be reduced or offset by an amounts received by make the remainder of the monthly payments to Executive from any other source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance required under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent 6 to Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will ceasefrom such escrow.
Appears in 1 contract
Severance. (ia) In the event of any termination of the that Executive’s employment is terminated by the Company without Cause, or by Executive for any reasonGood Reason, then:
(i) the Executive (or his or her estate) Company shall be entitled to (A) his or her pay Executive’s accrued but unpaid Base Salary through the date of termination, (B) at the value rate in effect at the time of his or her termination, accrued but unused vacation vacation, and reimburse Executive for any unreimbursed business expenses incurred prior to the date of termination;
(ii) the Company shall continue to pay Executive’s Base Salary at the rate in effect at the time of termination (without regard to any reduction in Base Salary that served as the basis for a resignation for Good Reason) for a period of 270 days following the date of termination in accordance with the Company’s ordinary payroll practice;
(iii) to the extent permitted by applicable healthcare laws and provided that the Executive makes a timely election to continue coverage, the Company shall pay directly to the insurance provider the premium for COBRA continuation coverage for the Executive and the Executive’s dependents, less the amount payable by an active employee for such coverage, for a period of 270 days or until she obtains new employment, whichever comes first (the benefits described in this Section 9(a) shall be referred to as the “Continued Benefits”). Notwithstanding the foregoing, in the event that applicable healthcare laws do not permit continuation of coverage, then the Company shall reimburse Executive for the costs of obtaining coverage in an amount not to exceed the coverage amounts paid or payable by Executive immediately prior to the date of termination; and
(iv) the vesting applicable to all Options and other equity incentive awards granted during the Term (collectively, the “Equity Awards”) shall cease immediately and the Executive shall have a period of 90 days to exercise any and all vested Equity Awards, after which time off all Equity Awards shall expire; provided, however, that no such Equity Award shall be exercisable after the expiration of its maximum term pursuant to the terms thereof.
(b) In the event that Executive’s employment is terminated by the Company for Cause, or by Executive other than for Good Reason, then:
(i) the Company shall pay Executive’s accrued but unpaid Base Salary through the date of termination, (C) except at the rate in effect at the case of termination for Cause, any bonus earned in a prior year but not yet paid on the date time of termination, (D) reimbursement of all accrued but unused vacation, and reimburse Executive for any unreimbursed business expenses properly incurred prior to the date of termination consistent termination;
(ii) Executive shall not be entitled to receive any payments or Continued Benefits described in this Section 9; and
(iii) the vesting applicable to all Equity Awards shall cease immediately and the Executive shall have a period of 90 days to exercise any and all vested Equity Awards, after which time all Equity Awards shall expire; provided, however, that no such Equity Award shall be exercisable after the expiration of its maximum term pursuant to the terms thereof
(c) If (i) Executive’s employment is terminated at any time beginning on the date that is 90 calendar days prior to the effective date of a Change of Control; or (ii) upon a Change of Control the successor corporation (or a parent or subsidiary of the successor corporation) (1) does not offer Executive employment on terms comparable to Executive’s then existing terms of employment with the Company policyand in connection therewith, Executive terminates her employment for Good Reason; or (2) Executive’s employment is terminated by such successor corporation without Cause or by Executive for Good Reason, within one (1) year following such Change of Control, then:
(i) the Company shall pay Executive’s accrued but unpaid Base Salary through the date of termination, at the rate in effect at the time of termination, accrued but unused vacation, and reimburse Executive for any unreimbursed business expenses incurred prior to the date of termination;
(Eii) any benefits, including any continuation or conversion rights, provided under any employee benefit plan or policy of the Company shall continue to pay Executive’s Base Salary at the rate in effect at the time of termination (not including without regard to any severance, separation pay, or supplemental unemployment benefit plan), reduction in Base Salary that served as the basis for a resignation for Good Reason) for a period of 270 days following the date of termination in accordance with the terms of such plan or policy (the “Accrued Benefits”).Company’s ordinary payroll practice;
(iiiii) In the event of termination of the Executive’s employment by reason of death, the Company shall pay provide the Continued Benefits to Executive for a period of 270 days following the date of termination or provide to the Executive’s estate: until she obtains new employment, whichever comes first; and
(Aiv) the Accrued Benefitsall unvested Equity Awards shall immediately vest in full and remain exercisable, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly)if applicable, for a period of six (6) months from 90 calendar days following the effective date of such termination; provided, (C) an amount equal however, that no such option shall be exercisable after the expiration of its maximum term pursuant to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) terms thereof. In the event of a termination by the Company pursuant order to 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 give effect to the Executive foregoing provision, notwithstanding anything to the Accrued Benefits, (B) pay the Executive a pro-rata annual bonus contrary set forth in respect any agreement governing an Equity Award regarding immediate forfeiture of the fiscal year in which the effective date of termination occurs (determined based on actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s unvested shares upon termination of employmentservice or the duration of post-termination of service exercise periods, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in following any event.
(iv) Except as expressly provided in this Section 10(b), upon the termination of the Executive’s employment, all payments hereunder none of Executive’s equity incentive awards shall ceaseterminate with respect to any vested or unvested portion subject to such Equity Award before 90 days following such termination.
(vd) The payments and benefits described in Sections 10(b)(ii) and 10(b)(iii) are in lieu ofThis Section 9 sets forth the only obligations of the Company with respect to the termination of Executive’s employment with the Company, and Executive acknowledges that, upon the termination of her employment, she shall not be entitled to any payments or benefits which are not explicitly provided in addition tothis Section 9. Further, notwithstanding anything to the contrary contained herein, the Company shall have no obligation to pay, and Executive shall have no right to receive, any compensation, benefits or other severance arrangement maintained by the Company. The payments and benefits described consideration provided for in Sections 10(b)(ii) and 10(b)(iii), this Section 9 (other than any accrued but unpaid Base Salary through the Accrued Benefits, date of termination and any reimbursement of unreimbursed expenses incurred prior to the date of termination) (the “Severance BenefitsPayments”) are conditioned unless Executive executes an agreement in a form satisfactory to the Company (the “Release Agreement”) releasing the Company from any and all liability in connection with the Executive’s employment or the termination thereof that becomes effective no later than 60 days following Executive’s termination (the “Release Deadline”). Except as required by Section 10, the Payments will commence on clauses the first payroll period following the Release Agreement becoming effective; provided, that (Ai) if the Payments (or any portion thereof) constitute “deferred compensation” within the meaning of Section 409A (as defined in Section 10) and (Bii) below:
A. The Executive’s the period commencing on the date of termination and ending on the Release Deadline spans two calendar years, then the Payments (or such portion thereof that constitute “deferred compensation”) will commence on the later of the Release Agreement becoming effective and the first payroll date of the Company in the case second calendar year. Any portion of the Payments that is delayed due to the application of the preceding sentence shall be made on the date that the Payments commence.
(e) Effective as of the date of any termination of the Executive’s deathemployment, his/her estate’s) execution unless otherwise agreed to by Executive and delivery the Board, upon termination of Executive’s employment hereunder for any reason, Executive shall be deemed to have resigned from all offices held at the Company and the expiration or any subsidiary or other affiliate of all applicable statutory revocation periods, by the sixtieth (60th) day following the effective date of his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year such termination, including without limitation the position of Executive Vice President and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employmentCFO.
B. (f) The Executive’s continued compliance with Company shall withhold all applicable federal, state and local taxes and social security and such other amounts as may be required by law from all amounts payable to the Executive under this Section 9.
(g) The provisions of Sections 5, 6, 7 and 8 this Section 9 shall survive any termination of this Agreement.
(vih) The Executive For purposes of this Agreement, “Cause” shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt include any of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.following:
Appears in 1 contract
Severance. (ia) In the event of any termination of that the Company terminates Executive’s employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her accrued but unused vacation and paid time off through the date of termination, (C) except in the case of termination for without 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 employment by reason of death, the Company shall will (x) pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for installments over a period of twelve (12) months and consistent with past payroll practices, an amount equal to the greater of (i) Executive’s then current Base Salary, or (ii) Executive’s Base Salary on the date hereof (in each case without giving effect to any bonuses or fringe benefits to which Executive may be entitled) (the “Severance Period”), and (y) provide Executive (and Executive’s spouse and dependants) a lifetime travel pass for Company’s flights, enabling Executive (and Executive’s spouse and dependants) to travel (free of charge) in any class of service that is available at the time of reservation, if and only if Executive has executed and delivered to the Company a General Release in form and substance substantially similar to Exhibit A attached hereto and, then, only if Executive has not breached any provision of Section 6, Section 7 or Section 8 hereof.
(b) In the event Executive ceases to be employed by the Company for any reason other than a termination by the Company without Cause, Executive shall be entitled to receive only his Base Salary (without giving effect to any bonuses or fringe benefits to which Executive may be entitled) through the Termination Date, and Executive shall not be entitled to any other salary, compensation or benefits from the effective Company or any of its affiliates thereafter.
(c) Except as otherwise expressly provided herein, all of Executive’s rights to salary, bonuses, fringe benefits and other compensation hereunder which accrue or become payable after the Termination Date shall cease upon such date (other than those expressly required under applicable law, such as COBRA, and accrued but unpaid vacation time, which shall be paid within thirty (30) days following the Termination Date). The Company may offset any amounts Executive owes the Company against any amounts the Company owes Executive hereunder.
(d) Notwithstanding any other provision of this Section 5, in the event Executive is terminated without Cause, resigns, dies, or becomes disabled and the Board has, at or prior to the time of such termination, resignation, death or disability, awarded a bonus to Executive which the Company has not yet paid, the Company shall, within thirty (30) days after the date of such termination, and (D) provide the resignation, death or disability, pay such awarded bonus to Executive, at the Company’s expense, with senior executive level outplacement services for a period of twelve (12) months from the date of termination, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any event.
(ive) Except as expressly provided in For purposes of this Section 10(b)Agreement, upon “Cause” shall mean (i) the termination commission of a felony or a crime involving moral turpitude or the Executive’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, commission of 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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (act or in the case of the Executive’s death, his/her estate’s) execution and delivery omission involving dishonesty or fraud with respect to the Company and or any of its subsidiaries or any of their customers or suppliers, (ii) failure to perform duties of the expiration of all applicable statutory revocation periods, office held by Executive as directed by the sixtieth (60th) day Board or the CEO, following written notice of such failure by the effective date of his Board or her termination of employmentthe CEO to Executive and a failure by Executive, of a general release of claims against within the Company and its affiliates substantially in the form attached hereto as Exhibit A (the “Release”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten business (10) days after the Release becomes irrevocable days, to cure such failure, (iii) gross negligence, fraud or willful misconduct with respect to the Company or any amount payable under of its affiliates, and/or (iv) any breach of Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, Section 7 and and/or Section 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. (i) In the event of any termination further consideration of the Executive’s entering into of this Agreement by Employee, Daleen agrees to entitle Employee to a severance pay benefit based up▇▇ ▇▇▇e salary dependent upon the duration of Employee's employment for any reasonwith Daleen, the Executive determined as follows:
a) One hundred and eig▇▇▇ ▇▇ys (180) or his or her estate) shall be entitled to (A) his or her Base Salary through the date less of termination, (B) the value of his or her 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 employment will result in a prior year but not yet paid on the date of termination, (D) reimbursement of all business expenses properly incurred prior severance benefit equal 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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 salary subject to a six (6) month Non-Compete period;
b) Employment beyond one hundred and eighty days (180) or less of such termination, (C) an amount employment will result in a severance benefit equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during the twelve (12) months after salary subject to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for a period of twelve (12) months from month Non-Compete period;
c) The Company reserves the effective date right to waive the Non-Compete period. If DTI waives the Non-Compete Period in it's entirety or any portion of such terminationit, and (D) provide there shall be no severance benefit paid for the Executive, period that has been waived. Daleen shall pay the foregoing severance benefit in accordance with p▇▇▇▇▇▇ policies in effect at the Company’s expense, with senior executive level outplacement services for a period time of twelve (12) months from the date of termination, using a reputable provider selected by the Executive with the Company’s consent, which separation. Employee shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in entitled to any event.
(iv) Except as expressly provided in this Section 10(b), upon the termination of the Executive’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 benefit if terminated by the Company. The payments and benefits described in Sections 10(b)(ii) and 10(b)(iii), other than the Accrued Benefits, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (Daleen "for cause" or in the case of the 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 if Employee voluntarily resigns from his or 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”). Subject ▇▇▇▇▇yment with Daleen subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5the Non-Compete period in Section ▇(▇). As used in this Agreement determination "for cause" shall be defined as termination of Employee by Daleen in the event Employee has been convicted of any felony or, 6in ▇▇▇ ▇▇se of other crimes, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek involving moral turpitude or accept other employmentdishonesty, or otherwise to mitigate damages, as a condition to receipt for any breach by Employee of the benefits described in Sections 10(b)(ii) and 10(b)(iiiany agreement with Daleen or of its employment or business policies (including without limitation theft or misuse of company property), and such benefits shall not be reduced or offset by an amounts received by the Executive from for any other sourceact or omission by Employee which does not fit into the previous categories but which Daleen in good faith believes has occurred to its detriment and about ▇▇▇▇▇ Employee has received at least one (1) written warning by Daleen and despite such prior written warning, except to the extent provided in Section 10(b)(vii), belowEmployee has a second ▇▇▇▇▇▇on committed such act or omission.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. (i) In the event of any termination further consideration of the Executive’s entering into of this Agreement by Employee, Dale▇▇ ▇▇▇ees to entitle Employee to a severance pay benefit based upon base salary dependent upon the duration of Employee's employment for any reasonwith Dale▇▇, the Executive ▇▇termined as follows:
a) One hundred and eighty days (180) or his or her estate) shall be entitled to (A) his or her Base Salary through the date less of termination, (B) the value of his or her 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 employment will result in a prior year but not yet paid on the date of termination, (D) reimbursement of all business expenses properly incurred prior severance benefit equal 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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 salary subject to a six (6) month Non-Compete period;
b) Employment beyond one hundred and eighty days (180) of such termination, (C) an amount employment will result in a severance benefit equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during the twelve (12) months after salary subject to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for a period of twelve (12) months from month Non-Compete period;
c) The Company reserves the effective date right to waive the Non-Compete period. If DTI waives the Non-Compete Period in its entirety or any portion of such terminationit, and (D) provide there shall be no severance benefit paid for the Executive, period that has been waived. Dale▇▇ ▇▇▇ll pay the foregoing severance benefit in accordance with payroll policies in effect at the Company’s expense, with senior executive level outplacement services for a period time of twelve (12) months from the date of termination, using a reputable provider selected by the Executive with the Company’s consent, which separation. Employee shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 entitled to any severance benefit if terminated by Dale▇▇ "▇▇r cause" or if Employee voluntarily resigns from his or her employment with Dale▇▇ ▇▇▇ject to the provisions of the Non-Compete period in any event.
(iv) Except as expressly provided Section 2(c). As used in this Section 10(b), upon the Agreement determination "for cause" shall be defined as termination of Employee by Dale▇▇ ▇▇ the Executive’s employmentevent Employee has been convicted of any felony or, 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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the Executive’s deathother crimes, his/her estate’s) execution and delivery to the Company and the expiration involving moral turpitude or dishonesty, or for any breach by Employee of all applicable statutory revocation periods, by the sixtieth any agreement with Dale▇▇ ▇▇ of its employment or business policies (60th) day following the effective date including without limitation theft or misuse of his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(Bcompany property), or for any other act or omission by Employee which does not fit into the previous categories but which Dale▇▇ ▇▇ good faith believes has occurred to its detriment and about which Employee has received at least one (1) written warning by Dale▇▇ ▇▇▇ despite such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in prior written warning, employee has a second taxable year, occasion committed such payments act or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employmentomission.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. (a) Subject to Section 20 hereof, if (i) In the event Company terminates the employment of the Executive during any Employment Period without Cause, or upon the expiration of any termination of Employment Period the Executive’s employment for any reason, Company shall fail to offer to renew or extend the Employment Period (other than if the Executive shall then have reached the Company’s mandatory retirement age), or (or ii) the Executive terminates his or her estateemployment during any Employment Period for Good Reason, then (A) Executive shall be entitled to receive base salary, a pro-rated amount of the Annual Bonus Target for the fiscal year in which the Termination Date occurs, pay for accrued but unused paid time off, and reimbursement for expenses pursuant to Section 12 hereof through the Termination Date (“Accrued Salary and Benefits”) and, in addition, Executive will receive a “Severance Package” that shall include (A) his or her a “Severance Payment” equivalent to twelve (12) months of Executive’s Base Salary through the date of termination, (B) the value of his or her accrued but unused vacation and paid time off through the date of termination, (C) except then in the case of termination for Cause, any bonus earned in a prior year but not yet paid effect 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), payable in accordance with the terms of such plan or policy (the “Accrued Benefits”).
(ii) In the event of termination of the ExecutiveCompany’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, regular payroll cycle; (B) notwithstanding the Executive’s Base Salaryvesting and exercisability provisions otherwise applicable to Outstanding Options, in accordance with its normal payroll practices (but not less frequently than monthly), for a period of six (6) months from the effective date all of such termination, options shall be fully vested and exercisable upon such termination and shall remain exercisable as specified in the option grant agreements; and (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed payment by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant premiums required to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executivecontinue Employee’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, group health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) care coverage for a period of twelve (12) months following Executive’s termination, under the applicable provisions of the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), provided that Executive elects to continue and remains eligible for these benefits under COBRA, and does not become eligible for health coverage through another employer during this period. Executive will only receive the Severance Package if Executive: (i) complies with all surviving provisions of this Agreement; (ii) executes a full general release in a form acceptable to Company, releasing all claims, known or unknown, that Executive may have against Company arising out of or any way related to Executive’s employment or termination of employment with Company, and such release has become effective in accordance with its terms prior to the 60th day following the termination date, and (iii) agrees not make any voluntary statements, written or oral, or cause or encourage others to make any such statements that defame or disparage the personal and/or business reputations, practices or conduct of Company, and (iv) immediately resigns all other positions (including board membership) Executive may hold on behalf of Company (provisions (i) through (iv) above are collectively referred to as “Severance Requirements”). All other Company obligations to Executive will be automatically terminated and completely extinguished. Provided the Executive has satisfied the requirements of this Section, the Company shall commence paying the Severance Payment on the sixty-first day following Executive’s termination of employment, and all such amounts that would otherwise have been payable before the sixty-first day shall be payable upon that date. In the event that the Executive does not comply with the Severance Requirements, the Executive shall forfeit the Severance Payment and the Company shall be released from all obligations to continue making group health care coverage premium payments on behalf of the effective Executive.
(b) Subject to Section 20 hereof, if (A) the Executive voluntarily terminates his employment during any Employment Period other than for Good Reason or (B) the Executive’s employment is terminated by the Company during any Employment Period for Cause, then the Executive shall be entitled to receive Accrued Salary and Benefits only; vesting of Outstanding Options shall cease on such Termination Date; any then un-vested Outstanding Options shall terminate (with the then-vested Outstanding Options vested and exercisable as specified in the option grant agreements).
(c) Subject to Section 21 hereof, if the Executive’s employment is terminated during any Employment Period due to death or Disability, the Executive (or his estate or legal representative as the case may be) shall be entitled to receive (i) Accrued Salary and Benefits and (ii) a lump sum equal to base salary at the rate in effect on the date of such termination, and (D) provide the Executive, at the Company’s expense, with senior executive level outplacement services termination for a period of twelve (12) months from months, provided Executive or his Estate complies with the date Severance Requirements. In such case, vesting of terminationthe Outstanding Options shall cease on such Termination Date, using a reputable provider selected by and any then un-vested Outstanding Options shall terminate (with the then-vested Outstanding Options vested and exercisable as specified in the option grant agreements). Provided the Executive has satisfied the requirements of this Section, the Company shall pay the lump-sum amount referenced in (ii) on the sixty-first day following Executive’s termination of employment. In the event that the Executive or his Estate does not comply with the Company’s consentSeverance Requirements, which the Executive and his Estate shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 forfeit the lump-sum amount referenced in any event(ii).
(ivd) Except as expressly provided in this Section 10(b), upon the termination of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below20 hereof, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits Executive acknowledges that, but for the above-described timing ruleupon termination of his employment, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5he is entitled to no other compensation, 6, 7 and 8 of severance or other benefits other than those specifically set forth or referred to in this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. (ia) In the event of any termination of the Executive’s If your employment for any reason, the Executive is terminated by Rimage without Cause (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently other than monthly), for a period of six (6) months from the effective date of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during the twelve (12) months after month period following a Change of Control pursuant to Section 10(a)(vin Control), the Company shall (A) pay or provide subject to the Executive the Accrued Benefits, (B) pay the Executive a pro-rata annual bonus condition stated in respect of the fiscal year in which the effective date of termination occurs (determined based on actual performance and the number of days the Executive is employed by the Company in such fiscal yearSection 1(c), with such annual bonus Rimage will:
(if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (Ci) continue to pay the Executive his or her Base Salary, your base salary in accordance with its normal Rimage’s regular payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for a period of twelve (12) months from thereafter, or until you have secured other employment, whichever occurs first, subject to applicable tax withholding;
(ii) pay you an amount equal to the effective average of the annual bonus amounts you received with respect to the three complete calendar years prior to the date of such your termination, and (D) provide the Executivesuch bonus payment, at the Companysubject to applicable tax withholding, to be made in equal installments consistent with Rimage’s expense, with senior executive level outplacement services for regular payroll practices over a period of twelve (12) months from the date of your termination, using provided such installments shall cease at such time as you have secured other employment; and
(iii) if you are eligible for and elect COBRA or state continuation of the Rimage health, dental and group life insurance benefits, Rimage shall pay the portion of such COBRA premium that it pays for active employees until the earlier of: (A) twelve (12) months from the date COBRA coverage begins; or (B) the date COBRA coverage otherwise terminates. You shall pay the remaining portion of the premiums for such benefits during such period and, if applicable, the full premium thereafter.
(b) If you resign (other than for Good Reason during the twelve (12) month period following a reputable provider selected by Change in Control), if Rimage terminates your employment for Cause or if your employment terminates as a result of your death or disability, you shall be entitled to receive your base salary accrued but unpaid as of the Executive with the Company’s consentdate of termination, which but shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in entitled to receive any eventsalary continuation benefit thereafter.
(ivc) Except as expressly provided in this Section 10(b), upon the termination of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the In case of termination without Cause, you shall be entitled to receive the Executive’s death, his/her estate’samounts due you under Section 1(a) only upon your 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 his or her termination of employment, Rimage of a general release of claims against the Company and its affiliates substantially in the form attached hereto as Exhibit A (the “Release”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B)and all claims against Rimage and its officers, at such later time as specified therein); directors, employees, agents and shareholders, acceptable in form and substance to Rimage in all respects, and provided that if you continue to comply with the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date terms of the Executive’s cessation of employmentNondisclosure and Noncompetition Agreement with Rimage.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Sources: Severance Agreement (Rimage Corp)
Severance. If you are terminated by the Company without Cause (as defined below) absent a Change in Control (as defined in the Grace Therapeutics, Inc. 2024 Equity Incentive Plan) of the Company, you will receive (i) In the event of any termination of the Executive’s employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary your accrued but unpaid salary through the date of termination, (Bii) any unreimbursed business expenses incurred by you payable in accordance with the value of his or her accrued but unused vacation and paid time off “Expense Reimbursement” section above 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 (Eiii) any benefits, including any continuation or conversion rights, provided benefits owed to you under any employee qualified retirement plan or health and welfare benefit plan or policy of the Company (not including any severance, separation pay, or supplemental unemployment benefit plan), in which you were a participant in accordance with applicable law and the terms provisions of such plan or policy (collectively, the “Accrued BenefitsObligations”).
) and, provided that you execute and deliver to the Company within sixty (ii60) In days of your termination a general release of claims in a form acceptable to the event of termination of Company, and do not revoke the Executive’s employment by reason of deathsame, the Company shall pay or provide to the Executive’s estate: you (Ai) the Accrued Benefits, (B) the Executive’s Base Salary, a continuation of your base salary then in accordance with its normal payroll practices (but not less frequently than monthly), effect for a period of six (6) months from the effective date of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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)months, payable beginning on 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 first regular payroll date of termination occurs (determined based on actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein)release; provided that that, if the seventy (70) day release execution period following the date of termination begins in one taxable year and ends in a another taxable year, payment shall not be made until the beginning of the second taxable year; and (ii) if you timely elect continued coverage under the Company’s health and welfare plans pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the regulations promulgated thereunder (“COBRA”), then the Company will pay or reimburse your premiums for the twelve (12) months of such payments coverage on terms no less favorable than those terms in effect as of the date of this Amendment No. 2 (provided that such COBRA payment or benefits reimbursement shall terminate on such earlier date as you are no longer eligible for COBRA coverage or you are eligible for coverage under another employer’s health plan) payable beginning on the first regular payroll date following the effective date of the release; provided that, if the release execution period begins in one taxable year and ends in another taxable year, payment shall not commence be made until the beginning of the second taxable year. The initial Any unvested and outstanding equity awards shall be forfeited upon a termination by the Company without Cause absent a Change in Control of the Company. If you are terminated by the Company without Cause or you resign for Good Reason (as defined below) in connection with or within twelve (12) months following a Change in Control of the Company you will receive the Accrued Obligations and, provided that you execute and deliver to the Company within sixty (60) days of your termination or resignation, as the case may be, a general release of claims in a form acceptable to the Company, and do not revoke the same, the Company shall pay you (i) a cash payment will include any Severance Benefits equal to eighteen (18) months of your base salary plus target bonus then in effect, net of deductions and tax withholdings, as applicable, payable beginning on the first regular payroll date following the effective date of the release; provided that, but if the release execution period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year; and (ii) if you timely elect continued coverage under the Company’s health and welfare plans pursuant to COBRA, then the Company will pay or reimburse your premiums for the above-described timing rule, would have otherwise been paid since eighteen (18) months of such coverage on terms no less favorable than those terms in effect as of the date of this Amendment No. 2 (provided that such COBRA payment or reimbursement shall terminate on such earlier date as you are no longer eligible for COBRA coverage or you are eligible for coverage under another employer’s health plan) payable beginning on the Executive’s cessation first regular payroll date following the effective date of employment.
B. The Executive’s continued compliance with the provisions of Sections 5release; provided that, 6if the release execution period begins in one taxable year and ends in another taxable year, 7 and 8 of this Agreement.
(vi) The Executive payment shall not be required to seek made until the beginning of the second taxable year. Any unvested and outstanding equity awards shall be fully vested and exercisable upon such termination or accept other employment, or otherwise to mitigate damagesresignation, as the case may be, in connection with or within twelve (12) months following a condition to receipt Change in Control of the benefits described in Sections 10(b)(ii) and 10(b)(iii), and such benefits shall Company. You are not be reduced or offset by an amounts received by the Executive from entitled to any other sourcewages, except to the extent provided commissions, vacation pay, sick pay, bonuses, benefits, severance or other compensation, other than as expressly set forth in Section 10(b)(vii), belowthis Amendment No. 2 upon a termination without Cause or resignation for Good Reason.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. Upon the cessation of Executive’s employment following (x) the Advisory Period End Date or (y) the earlier termination of Executive’s employment hereunder by reason of (A) Executive’s death or Disability (within the meaning of the Company’s long-term disability plan applicable to Executive as of the Effective Date) or (B) the Company’s termination of the Advisory Period other than for Cause (as such term is defined in the Severance Plan), then, subject to and conditioned upon (x) Executive’s continued compliance with this Agreement and the Restrictive Covenants and (y) Executive’s execution of a Release (in substantially the form of Exhibit A), on or within 53 days following the Termination Date, and non-revocation of the Release during the seven-day period following the date on which the Release is executed:
(i) In If the event of any termination of the Company terminates Executive’s employment other than for any reasonCause (as such term is defined in the Severance Plan) prior to the Advisory Period End Date, the Executive (or his or her estate) shall be entitled to (A) his or her Base the Company shall continue to pay to Executive the Salary that would have been payable during the remainder of the Advisory Period had the Advisory Period ended on the Advisory Period End Date, in accordance with the Company’s normal payroll practices and (B) as of the Termination Date, the vesting of each outstanding Company Equity Award and the Stock Option Award shall continue with respect to the number of option shares subject to each such Company Equity Award and the Stock Option Award that would have vested had Executive remained in employment with the Company through the date Advisory Period End Date;
(ii) As of terminationthe Advisory Period End Date, the vesting of each outstanding Company Equity Award shall be accelerated with respect to the number of option shares subject to each such Company Equity Award that would have vested through the 12-month anniversary of the Advisory Period End Date had Executive remained in employment with the Company through such 12-month anniversary (for clarity, such accelerated vesting is in addition to any continued vesting pursuant to clause (i) above), and any then-remaining unvested portions of any Company Equity Awards shall be forfeited for no consideration;
(iii) the Company shall pay to Executive an amount equal to $1,250,000, payable in a single lump sum within 60 days following the Termination Date;
(iv) if Executive elects to receive continued healthcare coverage pursuant to the provisions of COBRA, the Company shall pay the cost of Executive’s and Executive’s covered dependents’ healthcare coverage premiums for a period ending on the earliest of (A) the 12-month anniversary of the Termination Date, (B) the value of date on which Executive and his covered dependents become eligible for healthcare coverage under another employer’s plan, or her 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the which Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company covered dependents otherwise become ineligible 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, using a reputable provider selected by the Executive with the Company’s consentCOBRA coverage, which such cost shall not be unreasonably withheld, 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 of the taxable income to Executive’s employment, all payments hereunder shall cease.;
(v) The payments Notwithstanding anything to the contrary above, if Executive terminates his employment prior to the Advisory Period End Date because Executive has obtained other employment or a consulting position and benefits described in Sections 10(b)(ii) and 10(b)(iii) are in lieu ofExecutive is unable to continue as Strategic Advisor due to the requirements of such employment or consulting position, 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, (the “Severance Benefits”) are conditioned on clauses then (A) Executive shall be entitled to receive the amounts and benefits in Sections 3(b)(ii), 3(b)(iii), and 3(b)(iv), subject to the terms and conditions set forth herein (including the release requirement described above), and (B) below:
A. The Executive’s (or in Executive shall be entitled to retain the case portion of the 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 his or her termination of employment, of a general release of claims against the Company and its affiliates substantially in the form attached hereto Stock Option Award that is vested as Exhibit A (the “Release”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation Termination Date and any remaining unvested portion shall be forfeited. For the avoidance of employment.
B. The Executive’s continued compliance with the provisions of Sections 5doubt, 6in such circumstance, 7 and 8 of this Agreement.
(vi) The Executive shall not be required entitled to seek receive the amounts and benefits in Section 3(b)(i). If the period during which Executive has discretion to execute or accept other employmentrevoke the release described above straddles two calendar years, or otherwise to mitigate damages, as a condition to receipt the Company will make the payments that are conditioned upon the release no earlier than January 1st of the benefits second of such calendar years, regardless of the taxable year in which Executive actually delivers the executed release to the Company. For the avoidance of doubt, if Executive terminates his employment prior to the Advisory Period End Date (other than due to Executive’s death or Disability as set forth in this Section 3(b) or on account of obtaining a subsequent employment or consulting position as described in Sections 10(b)(ii) and 10(b)(iiiSection 3(b)(v)), and such benefits Executive shall not be reduced or offset by an amounts received by the Executive from forfeit any other source, except entitlement to the extent provided payments and benefits set forth in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan3(b), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. (i) In the event of any termination of If the Executive’s 's employment for any reasonis terminated pursuant to Sections 4(a) or 4(b) above during the Term, then the Executive (Executive, or his or her estate) , as applicable, shall be entitled to (A) continue to receive his or her then Base Salary through the date of for one (1) year immediately following such termination, (B) the value of his or her 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 employment by reason of death, . If the Company shall pay or provide to terminate the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company 's employment without "cause" pursuant to Section 10(a)(iii)4(c) above during the Term, or if then the Executive terminates shall be entitled to continue to receive his then Base Salary for one (1) year following the employment termination date. All payments under this Agreement during the twelve (12Section 4(e) 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent are conditioned upon the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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 's execution 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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case effectiveness of the 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 his or 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 are payable in regular installments consistent with normal Company payroll practices in effect from time to time. Subject only to Section 11 belowExecutive's (or his estate's) execution and effectiveness of the Release, the Severance Benefits will begin 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 and benefits the Executive may earn or be paid or provided ten (10) days after the Release becomes irrevocable (or entitled to with respect to any amount payable under 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 10(b)(iii)(B)4(c) above, at such later time as specified therein); provided that or if the seventy (70) day period Executive's employment is terminated for any reason following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date expiration of the Executive’s cessation of employment.
B. The Executive’s continued compliance with Term, then the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required entitled to seek or accept other employmentany further payments under this Agreement, including Base Salary, Bonus, Employee Benefits, or otherwise Severance, after the date of termination, but Executive shall be entitled to mitigate damagesall Base Salary, as a condition to receipt of the benefits described in Sections 10(b)(ii) Bonus and 10(b)(iii), and such benefits shall not be reduced or offset by an amounts received by the Executive from any other source, except Employee Benefits that have accrued prior to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation effective date of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coveragesuch termination. To the extent Executive that any amount payable under this Agreement constitutes amounts payable under a "nonqualified deferred compensation plan" (or his eligible dependentsas defined in Internal Revenue Code Section 409A (hereinafter, "Section 409A")) following a "separation from service" (as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment defined in another employer’s group health planSection 409A), the Company’s obligation to continue group health coverage including any amount payable under this Section 10(b) 4, then, notwithstanding any other provision in this Agreement to the contrary, such payment will cease.not be made until the date that is six months following the Executive's "separation from service," but only if the Executive is then deemed to be a "specified employee" under Section 409A.
Appears in 1 contract
Sources: Employment Agreement (ORBCOMM Inc.)
Severance. If Executive is terminated without Cause or if Executive resigns for Good Reason, then, subject to Executive signing on or before the forty-fifth (i45th) In the event of any termination of the day following Executive’s employment for any reason, the Executive Separation from Service (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthlydefined below), and shall continue the Executive’snot revoking, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees a release of the Company) for claims in 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the Executive’s death, his/her estate’s) execution and delivery form reasonably acceptable to the Company and the expiration of all applicable statutory revocation periods, by the sixtieth (60th) day following the effective date of his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with Section 4, Executive shall receive, in addition to the provisions of Sections 5compensation set forth in Section 3(c), 6, 7 and 8 of this Agreement.the following:
(viA) The an amount equal to Executive’s then current Annual Base Salary, payable in accordance with the Company’s standard payroll practices starting on the First Payment Date (as defined below);
(B) for the twelve (12) month period following Executive’s Separation from Service (or, if earlier, the date on which the applicable continuation period under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) expires), the Company shall arrange to provide Executive and his 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 such dependents immediately prior to the date of such 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 exempt from Section 409A of the Code or that is otherwise compliant with applicable law (including, without limitation, 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 twelve (12) multiplied by the monthly premium Executive would be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except pay for continuation coverage pursuant to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance COBRA for his eligible dependents who were covered under this Section 10(b) will be accomplished by the Company’s waiver or payment health plans as of the applicable date of Executive’s Separation from Service (calculated by reference to the premium for COBRA continuation coverage. To as of the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because date of their enrollment in another employer’s group health planSeparation from Service), which amount shall be paid on the Company’s obligation to continue group health coverage under this Section 10(b) will ceaseFirst Payment Date.
Appears in 1 contract
Severance. (i) In the event of any a termination of this Agreement under Section 9, the following shall apply:
a. If this Agreement and Executive’s employment hereunder terminates as a result of Executive’s Disability, then Executive shall receive the following: (i) his Base Salary, benefits earned, and business expenses properly incurred through the date of termination; and (ii) 60% of his then-current Base Salary for 12 months after such termination of employment, during which time Executive shall be eligible to participate in Company’s then applicable health care plan at the then regular employee contribution rate; provided that, if Executive cannot continue to participate in Company plans providing such benefits, then Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted.
b. If Company terminates this Agreement and Executive’s employment hereunder without Cause or if Executive terminates this Agreement and Executive’s employment hereunder with Good Reason, then Executive shall receive the following: (i) his Base Salary, benefits earned, business expenses properly incurred, and pro-rated annual performance based incentive compensation through the date of termination; (ii) the lesser of (a) an amount equal to 1.5 times Executive’s highest annual Base Salary rate during the 12 month period immediately before such termination or (b) continuation of the Base Salary for the remainder of the Initial Term, payable in a single lump sum; (iii) reimbursement, up to a maximum of 18 months, for premium payments for any reasonCOBRA coverage Executive elects, the Executive if any; (or his or her estateiv) shall be entitled to (A) his or her Base Salary immediate vesting of all stock options and/or restricted stock units granted through the date of termination, regardless of the provisions of any other agreement; and (Bv) the value continued earning/vesting of his or her accrued but unused vacation and paid time off any Performance Based Units granted through the date of termination, according to the Performance Based Restricted Stock Unit Award Agreement (Cincluding the provisions regarding payment after a Change of Control of the Company) except as if Executive’s employment continued through the date of earning/vesting of any such Unit.
c. For any termination other than those listed in Section 10.a.-b., Executive shall receive only his Base Salary, benefits earned, and business expenses properly incurred through the case date of termination.
d. Upon termination for Causeany reason, Executive (i) shall provide reasonable cooperation to Company at Company’s expense in winding up Executive’s work for Company and transferring that work to other individuals as designated by Company, and (ii) shall reasonably cooperate with Company in any bonus investigation or litigation/future investigation or litigation as requested by Company.
e. To be eligible for any payments under this Section beyond regular employee benefits earned in a prior year but not yet paid on through the date of termination, Executive must (Di) reimbursement of all business expenses properly incurred prior execute and deliver to the date of termination consistent with Company policya final and complete release in a form that is reasonably acceptable and approved by Company, and (Eii) any benefitsin Company’s good faith belief, 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), be in accordance full compliance with the terms of such plan or policy (the “Accrued Benefits”)his Restrictive Covenant Agreement and his Confidentiality Agreement.
(ii) f. In the event of termination of the Executive’s employment connection with any severance payments under Section 10.b., Executive shall have no duty to mitigate his damages by reason of deathseeking other employment, the and Company shall pay or provide not be entitled to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), for a period of six (6) months set off against amounts payable hereunder any compensation that he may receive from the effective date of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B)future employment.
(iii) g. In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during the twelve (12) months Qualifying Termination after a Change of In 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the under Executive’s termination of employmentseparate Change In Control Severance Agreement, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreementthat separate agreement shall apply.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Sources: Employment Agreement (Compass Minerals International Inc)
Severance. (ia) In Subject to the event terms of any termination of the Executivethis Agreement, if Employee’s employment for any reasonis terminated by the Company without Cause (as defined below), Employee will be eligible to receive severance payments equal to twelve (12) months of Employee’s base salary in effect at the Executive time Employee ceased to be employed by the Company (or his or her estate) the “Severance Payments”), payable in accordance with Section 1. Employee shall be entitled to Severance Payments only (Ai) his or her Base Salary through the date upon execution by Employee of termination, a release (B) the value of his or her 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, (Dform satisfactory to Company) 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 claims against the Company (not including any severance, separation pay, or supplemental unemployment benefit plan), in accordance with other than claims relating to equity and long-term incentive plan compensation to the terms of extent such plan or policy compensation survives such employment termination) (the “Accrued BenefitsGeneral Release”).
) and the General Release has become effective and is no longer subject to revocation no later than sixty (60) days following the termination of employment and (ii) In so long as Employee has not breached the event provisions of termination of any other agreement with the Executive’s employment by reason of deathCompany, the Company shall pay or provide including without limitation, any Restrictive Covenants contained in any equity award agreement, and Employee has not applied for unemployment compensation chargeable to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) . In the event of a termination breach by Employee of any agreement with the Company, including without limitation, any Restrictive Covenants, all Severance Payments shall cease and terminate and Employee shall repay to the Company pursuant the amount of Severance Payments paid to Section 10(a)(iii)Employee prior to such breach within thirty (30) days following notice of such breach. Employee shall not be entitled to any other salary, compensation or if benefits after 12624086.2\1044227.000001 termination of employment, except as may be provided under the Executive terminates this Severance 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 actual performance between Employee and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus Saia (if any) or as required by law.
(b) Except as noted below, the Severance Payments pursuant to this provision shall be paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in equal installments in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which normal payroll practices.
(c) The Severance Payments pursuant to this provision shall not be unreasonably withheldpaid or provided until the first scheduled payment date following the date that the General Release has become effective and no longer subject to revocation; provided, provided however, that such outplacement expenses if the Severance Payments constitute nonqualified deferred compensation within the meaning of Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (“Section 409A”), the Severance Payments shall not exceed $25,000 in any event.
(iv) Except as expressly be paid or provided in this Section 10(b), upon the termination of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the Executive’s death, his/her estate’s) execution and delivery to the Company and the expiration of all applicable statutory revocation periods, by until the sixtieth (60th) day following such termination to the effective date extent necessary to avoid adverse tax consequences under Section 409A (e.g., if the 60 day period spans two calendar years); provided, further, that if Employee is a “specified employee” within the meaning of his or her termination Section 409A, and the Severance Payments constitute nonqualified deferred compensation within the meaning 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”). Subject to Section 11 below409A, the Severance Benefits will begin to Payments shall not be paid or provided ten (10) days after until the Release becomes irrevocable (or with respect date that is six months and one day following such termination to any amount payable the extent necessary to avoid adverse tax consequences under Section 10(b)(iii)(B)409A. For purposes of Section 409A, at such later time the right to a series of installment payments hereunder shall be treated as specified therein); provided that if the seventy (70) day period following the date a right to a series of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employmentseparate payments.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 (d) For purposes of this Agreement.
(vi) The Executive , “Cause” shall not be required to seek or accept other employment, or otherwise to mitigate damageshave the meaning given such term under the Plan, as may be amended or replaced by a condition subsequent equity incentive plan from time to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), belowtime.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Sources: Severance Agreement (Saia Inc)
Severance. If (ia) In the event of any termination of Employee's employment is terminated by the Executive’s employment for any reasonCompany without "cause" or (b) the Company does not agree to extend the Employment Term upon the expiration thereof, the Executive (or his or her estate) Employee shall be entitled to (Ai) receive an amount equal to his or her Base Salary through total cash compensation (base salary plus bonus) for the year preceding the date of terminationthe Employee's termination or the date on which the Employment Term expires, (B) as the value of his or her accrued but unused vacation and paid time off through case may be, such amount to be payable, at the Company's option, in a lump sum on the date of terminationtermination or the date on which the Employment Term expires, (C) except in as the case may be, or ratably over the one year period following the date of termination for Causeor expiration (the "Severance Period") and (ii) continue to receive the medical and dental health benefits referred to in Section 4(d) during the Severance Period; provided, any bonus earned however, if either such event occurs prior to the extension of the initial Employment Term, Employee shall be entitled to (i) $260,000, payable in a prior year but not yet paid lump sum on the date of termination, (Dii) reimbursement of all business expenses properly incurred prior the guaranteed bonus payments for 1997 and 1998 referred to in Section 4(b) to the date of termination consistent with Company policyextent not previously paid to Employee, 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), payable in accordance with the terms of such plan or policy (the “Accrued Benefits”).
(ii) In the event of termination of the Executive’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based lump sum on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected and (iii) continue to receive the medical and dental health benefits referred to in Section 4(d) during the Severance Period. If the Employee's employment is terminated by the Executive with Company "for cause", the Company’s consent, which Employee shall not be unreasonably withheldentitled to severance compensation. The Employee covenants and agrees that he will not, provided that such outplacement expenses shall not exceed $25,000 in any event.
(iv) Except as expressly provided in this Section 10(b), upon during the one year period following the termination of the Executive’s employmentEmployee's employment by the Company, all payments hereunder shall cease.
within any jurisdiction or marketing area in which the Company or any of its Affiliates (vas defined below) The payments and benefits described is doing business or is qualified to do business, directly or indirectly own, manage, operate, control, be employed by or participate in Sections 10(b)(ii) and 10(b)(iii) are in lieu the ownership, management, operation or control of, and not or be connected in addition toany manner with, any other severance arrangement maintained 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 Section 8, the term "Affiliate" shall mean, with respect to the Company, any person or entity which, directly or indirectly, owns or is owned by, or is under common ownership with, the Company. The payments term "own" (including, with correlative meanings, "owned by" and benefits described in Sections 10(b)(ii"under common ownership with") and 10(b)(iii), other than shall mean the Accrued Benefits, (ownership of 50% or more of the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s voting securities (or in the case of the Executive’s death, his/her estate’stheir equivalent) 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employmentparticular entity.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. 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 prior to the Expiration Date, and provided that all of the following have occurred within 60 days following the termination of Employee’s employment with the Company: (i) In Employee first signs and delivers to the event of Company a Confidential Severance and Release Agreement in substantially the same form as that attached hereto as Exhibit B (the “Release Agreement”), (ii) any termination revocation right of the Executive’s employment for any reasonEmployee under such Release Agreement shall have expired, and (iii) such Release Agreement shall have become effective (the Executive date that all of the conditions set forth in (or his or her estatei), (ii) and (iii) above are met to be referred to as the “Release Date”), Employee shall be entitled to receive:
(Ai) Severance compensation equal to two-thirds of the sum of his or her annual Base Salary through and Target Bonus in effect for the date year in which the Termination Date occurs, payable in 8 monthly installments equal to one-eighth of terminationsuch severance compensation, (B) subject to required withholding, payable at the value end of his or her 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 each of the Company (not including any severance, separation pay, or supplemental unemployment benefit plan), in accordance with next eight full calendar months following the terms of such plan or policy (first full calendar month following the “Accrued Benefits”).Release Date;
(ii) In Coverage at Company expense under the event employee health insurance plan of termination of the Executive’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees period of eight months following the Company) for Release Date, or, if less, the maximum time period described above in clause (B)permitted under COBRA.
(iiib) In the event of a termination by the Company pursuant to 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 Notwithstanding anything to the Executive the Accrued Benefitscontrary herein contained, (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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek pay any amounts under this Section 5 or accept elsewhere in this Agreement if Employee is in breach of any of its obligations under this Agreement or any other employmentAgreement 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 otherwise Employee resigns without Good Reason, Employee shall be entitled to mitigate damages, as a condition to receipt of receive only: (i) Employee’s Base Salary earned and payable through the benefits described in Sections 10(b)(iiTermination Date; (ii) and 10(b)(iii), and such benefits shall not be reduced or offset by an amounts received by the Executive from any other source, except accrued but unused vacation/time off to the extent provided in Section 10(b)(vii)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, belowif applicable, as of the Termination Date.
(viid) Any continuation For purposes of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan)Agreement, the Company’s obligation to continue group health coverage under this Section 10(b) will cease.following terms shall have the meanings set forth below:
Appears in 1 contract
Severance. (i) In the event of any termination of the Executive’s employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 employment by reason of deathdeath or Disability, the Company shall pay or provide to the Executive or Executive’s estate: estate (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the 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 yearyear of the effective date of termination) and paid promptly within thirty (30) days following such termination, and (D) continued health benefits for the Executive’s Executive and his eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) ), if applicable, for the period described above in clause (B)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 actual performance and the number of days in the calendar year that Executive is employed by the Company in such fiscal yearyear of the effective date of termination), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or his/her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’s employment, all payments hereunder shall cease.
(v) The payments and benefits described in Sections 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 Sections Section 10(b)(ii) and 10(b)(iii), other than the Accrued Benefits, (the “Severance Benefits”) are conditioned on clauses on: (Aa) and (B) below:
A. The Executive’s (or in the case of the 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) 60th day following the effective date of his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten ; and (10b) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The 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) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits described in Sections Section 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 source, except to the extent provided in Section 10(b)(vii), belowExecutive’s medical coverage is discontinued by reason of his acquiring other coverage.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. (ia) In the event of any termination of the Executive’s Executive voluntarily terminates his employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during the twelve (12) within 12 months after a Change of Control pursuant to event, as defined in Section 10(a)(v)12.1, then the Company shall provide Executive with the severance payments and benefits described in Section 12.2(b) below, less any applicable federal and state taxes and withholdings. To receive any severance pay and benefits hereunder (A) pay or provide other than Accrued Compensation, as defined below), Executive shall first be required to execute and deliver to the Executive Company a valid and fully effective general waiver and release of any claims against the Accrued BenefitsCompany, its affiliates, officers, directors, agents and employees in a form satisfactory to the Company within the consideration period set forth in the waiver and release, which period shall not exceed forty-five (B45) pay the Executive a pro-rata annual bonus in respect of the fiscal year in which days after the effective date of his termination occurs from employment (determined based on actual performance the “General Release”). The date upon which the General Release is executed and delivered to the number of days Company, and can no longer be revoked, is referred to as a the Executive is employed by the “Release Effective Date.”
(b) Severance pay and benefits pursuant to 12.2(a) shall include and be calculated as follows:
(i) The Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) shall continue to pay Executive’s Base Salary in effect on the Executive date of his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) termination from employment for a period of twelve (12) calendar months from (“Severance Period”). These payments shall occur on the effective date first day of such terminationeach calendar month, beginning with the first calendar month after the Release Effective Date.
(ii) To the extent that Executive is eligible for and (D) provide the Executive, at timely elects continuation of health benefits for himself and/or his eligible dependents under the Company’s expensegroup health plans pursuant to COBRA or any analogous state or local law, with senior executive level outplacement services the Company shall pay or reimburse Executive for a period the amount of twelve (12) months from any insurance premiums for such continuation coverage during the Severance Period, but these payments shall be limited to the amount of the premiums being paid by the Company for Executive’s coverage immediately prior to the date of termination, using a reputable provider selected his termination from employment.
(c) By no later than two weeks after the date of Executive’s termination from employment under this Section (or earlier if required by the Executive with applicable law or the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any event.
(iv) Except as expressly provided in this Section 10(bpolicies), upon the termination of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the Executive’s death, his/her estate’s) execution and delivery to the Company and shall pay to Executive any Accrued Compensation. “Accrued Compensation” shall mean any Base Salary owed to Executive for services performed before the expiration of all applicable statutory revocation periods, by the sixtieth (60th) day following the effective date of his or her termination of from employment, of a general release of claims against the Company and its affiliates substantially in the form attached hereto as Exhibit A (the “Release”). Subject any bonuses earned, if any, for bonus periods that have concluded prior to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of his termination begins in one taxable year (and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but including bonuses for the above-described timing ruleperiod in which Executive’s termination occurs, would have unless otherwise been paid since provided by the date Company in its discretion), or any unused vacation or personal time in accordance with the applicable policies of the Executive’s cessation of employmentCompany.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Sources: Employment Agreement (Regenerx Biopharmaceuticals Inc)
Severance. (i) In the event that Employee suffers an Involuntary Termination at any time within twelve months following the effective date of any termination a Change of the Executive’s employment for any reasonControl, the Executive (or his or her estate) shall Employee will be entitled to receive severance benefits as follows: (A) his or her Base Salary through severance payments during the period from the date of terminationEmployee’s termination until the date [insert “24 months” if the Employee is the Chief Executive Officer] [insert “18 months” if the Employee is the Chief Operating Officer] [insert “12 months” if the Employee is not the Chief Executive Officer or Chief Operating Officer] months after the effective date of the termination (the “Severance Period”) equal to the base salary which Employee was receiving immediately prior to the Change of Control, which payments shall be paid during the Severance Period in accordance with the Company’s standard payroll practices, (B) the value of his or her 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 lump sum payment as soon as practicable after the date of termination consistent with Company policy, of employment [insert “equal to two times” if the Employee is the Chief Executive Officer] [insert “equal to one and one-half times” if the Employee is the Chief Operating Officer] [insert “equal to” if the Employee is not the Chief Executive Officer or Chief Operating Officer] Employee’s average annual bonus paid for the Company’s fiscal years (Eup to three) any benefits, including any continuation or conversion rights, provided under any employee benefit plan or policy of immediately preceding the Company (not including any severance, separation pay, or supplemental unemployment benefit plan), Company’s fiscal year in accordance with which the terms of such plan or policy (the “Accrued Benefits”).
(ii) In the event of termination of the Executive’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, occurs and (C) an amount equal to the Executive’s Target Bonus for the fiscal year continuation of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed payment by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such of its portion thereof as is then funded by the Company for other employees of the Company) for health insurance benefits provided to Employee immediately prior to the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 terms of the fiscal year in Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) or other applicable law through the earlier of the end of the Severance Period or the date upon which Employee is no longer eligible for such COBRA or other benefits under applicable law. In addition, Employee will receive payment(s) for all salary, bonuses and unpaid vacation accrued as of the effective date of termination occurs (determined based on actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the ExecutiveEmployee’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. (i) In If the event of any termination of the Company terminates Executive’s employment (actually and not constructively, except as set forth in Section 4.3) without Cause or if Executive terminates employment for any reasonGood Reason as provided in section 4.3, the and provided that Executive (or his or her estatex) shall be entitled is in material compliance with this Agreement and the Confidentiality Agreement and (y) executes and returns to (A) his or her Base Salary through the date Company a complete release of termination, (B) all claims against the value of his or her accrued but unused vacation Company and paid time off through the date of termination, (C) except in the case of termination for Cause, any bonus earned related persons in a prior year but not yet paid on the date of termination, (D) reimbursement of all business expenses properly incurred prior form acceptable to the date of termination consistent with Company policy, that becomes effective and irrevocable within sixty (E60) 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), for a period of six (6) months from days after the effective date of such terminationtermination (“Termination Date”), the Company shall, in addition to payment of the Accrued Payments:
(Ca) pay severance to Executive in an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during the twelve (12) months of Base Salary at the rate in effect as of the Termination Date, which shall be paid in equal installments in twenty-four (24) substantially equal payments paid on the Company’s regular Exhibit 10.1 paydays, commencing on the Termination Date (the “Severance Period”); provided, however, that: (i) the first such payment shall be made on the first payday that is at least sixty (60) days after a Change the Termination Date and shall include all sums that would have been paid had payment commenced on the first payday after the Termination Date; (ii) the Severance Period shall terminate immediately upon Executive’s material breach of Control this Agreement or the Confidentiality Agreement; and (iii) if the sixty-day period within which the release must become effective spans two calendar years, no payment pursuant to this Section 10(a)(v), 4.6.2 shall be made before the Company shall first business day of the second calendar year;
(Ab) pay or provide to Executive an Annual Bonus in the Executive target amount for 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 Terminate Date occurs;
(determined based on actual performance c) provided that Executive timely elects and the number of days the Executive is employed by eligible for Continuation Coverage as defined herein the Company in such fiscal year)shall pay directly to the Company’s COBRA provider or group health plan provider for premiums to continue the medical, with such annual bonus dental and vision insurance coverage (if any) paid at of Executive and Executive’s eligible dependents pursuant to the same time it would have otherwise been paid absent continuation-coverage provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 or comparable state law (“Continuation Coverage”) from the Termination Date through the earlier of (i) the eighteen (18) month anniversary after the Termination Date; (ii) the Executive’s termination of employment, eligibility for group medical plan benefits under any other employer’s group medical plan; or (Ciii) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 cessation of the Executive’s employmentcontinuation rights under COBRA. provided, all however, if the Company determines that it cannot pay such amounts to the group health plan provider or the COBRA provider (if applicable) without potentially violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then the Company shall convert such payments hereunder to payroll payments directly to the Executive for the time period specified above. Such payments shall cease.be subject to tax-related deductions and withholdings and paid on the Company’s regular payroll dates; and
(vd) 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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The cause all of Executive’s (or in the case unvested equity to vest, as of the Executive’s death, his/her estate’s) execution and delivery to earlier of the Company and the expiration of all applicable statutory revocation periods, by the sixtieth (60th) day following the effective date of his Termination Date or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date closing of the Executive’s cessation Change of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive Control. Equity grants shall not in all other respects continue to be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished covered by the Company’s waiver or payment of the Equity Incentive Plan and applicable premium for COBRA continuation coveragegrant agreements. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. (ia) In the event of any termination of the ExecutiveEmployee’s employment with the Company shall terminate on September 15, 2023 (such date, or earlier date if Employee’s employment is terminated by Employee for any reasonreason or by the Company for Cause (as such term is defined in the Employment Agreement), the Executive “Separation Date”). Employee agrees to promptly execute such additional documentation as requested by the Company to effectuate the foregoing.
(or his or her estateb) shall Regardless whether the Release Condition (as defined below) is satisfied, Employee will be entitled to (Ai) his or her Base Salary through the date of terminationall earned, but unpaid wages; (B) the value of his or her 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 (Eii) any benefitsearned, including any continuation or conversion rightsbut unpaid annual bonus for fiscal year 2023; (iii) accrued, provided under any employee benefit plan or policy of the Company (not including any severancebut unused, separation pay, or supplemental unemployment benefit plan), vacation time earned in accordance with applicable law and Company policy through the terms of such plan Separation Date; and (iv) any unpaid expenses or policy other reimbursements, due to Employee under the Company’s policies, provided that Employee must submit for reimbursement any outstanding business-related expenses within 120 days following the Separation Date (the “Accrued BenefitsEntitlements”).
(iic) In the event of Upon a termination of the ExecutiveEmployee’s employment by reason following the Effective Date for any reason, and subject to the Release Condition and Employee’s continued compliance with all of deathher obligations set forth in this Agreement, the Company shall pay or provide to Employee the Executivefollowing payments and benefits, less all applicable withholdings and authorized or required deductions:
(i) severance pay, at the same rate as Employee’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly)base salary, for a period of six 12 months following the Separation Date,
(6) months from the effective date of such termination, (Cii) an amount equal to the Executiveone times Employee’s Target Bonus annual bonus for the last completed fiscal year ((i) and (ii), the “Severance Payments”), and
(iii) continued payment on Employee’s behalf of termination pro-rated the premium required to be paid for Employee’s continued participation in the Company’s health care plan for a period of 12 months following termination, unless Employee is employed by another company, and in such instance, future payment for the health insurance premiums will cease (the “Healthcare Payments”). The Severance Payments to which Employee is entitled hereunder shall be in the form of salary continuation, payable in accordance with the normal payroll practices of the Company, and the Healthcare Payments shall be paid monthly, and in both cases with the first payment, which shall be retroactive to the day immediately following the Separation Date, being due and payable on the Company’s next regular payday for executives that follows the expiration of 60 calendar days from the Separation Date. Notwithstanding the foregoing, in the event the Healthcare Payments would, in the determination of the board of directors of the Company or its delegate, subject Employee, the Company or any of its affiliates to any tax or penalty under the Patient Protection and Affordable Care Act (as amended from time to time, the “ACA”) or Section 105(h) of the Internal Revenue Code of 1986, as amended (“Section 105(h)”), or applicable regulations or guidance issued under the ACA or Section 105(h), the Healthcare Payments shall be treated as taxable payments and be subject to imputed income tax treatment to the extent necessary to eliminate any such adverse consequences under the ACA or Section 105(h). This Section 2(c) supersedes Section 5(d) and Section 5(e) of the Employment Agreement in such sections’ entirety.
(d) Provided that Employee’s employment is not terminated prior to September 15, 2023 (i) by the Company for Cause or (ii) due to Employee’s voluntary resignation, subject to the Release Condition and Employee’s continued compliance with all of her obligations set forth in this Agreement, the Company shall provide Employee with a pro rata portion of Employee’s fiscal 2024 discretionary annual bonus (if any) based on Employee’s actual performance through September 15, 2023 and determined in accordance with Section 4(b) of the date of termination (determined Employment Agreement, with such pro rata amount based on the number of days that the Executive is Employee was employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual pro rata bonus (if any) to be paid at the same time it would have otherwise been annual bonuses are typically paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by executives but in no event later than two and one-half months following the Company for other employees last day 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any event2024 fiscal year.
(ive) Except as expressly provided in this Section 10(b)Employee will receive under separate cover information regarding Employee’s rights under the Consolidated Omnibus Budget Reconciliation Act and, upon the termination of the Executive’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 toif applicable, any other severance arrangement maintained by the Company. The payments and benefits described in Sections 10(b)(ii) and 10(b)(iii)state continuation coverage laws (collectively, other than the Accrued Benefits, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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 “ReleaseCOBRA”). Subject Employee acknowledges that Employee should review the COBRA notice and election forms carefully to Section 11 belowunderstand Employee’s rights and obligations to make timely elections, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year provide timely notification and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employmentmake timely premium payments.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Sources: Transition and Separation Agreement (InnovAge Holding Corp.)
Severance. (ia) In the event of any Upon Employee's termination of the Executive’s employment by Dendrite for any reasonreason other than termination by Dendrite for Cause (as defined below), the Executive Disability (as defined below) or his or her estate) upon Employee's death, Employee shall solely be entitled to (Asubject to any applicable off-sets) applicable payments and benefits in Section 4(b), his or her Base Salary base salary through the date of his termination, and payment for any unused but accrued vacation through the date of termination.
(b) If Employee's employment hereunder is terminated by Dendrite for any reason other than death, (B) Cause, or Disability, then Employee shall be entitled to receive severance payments in an aggregate amount equal to the value annual rate of his or her accrued but unused vacation and paid time off through Employee's base salary in effect as of the date of termination, . The severance payments to be paid to Employee under this Section 4(b) shall be referred to herein as the "Severance Payment". Employee's Severance Payment shall be paid by Dendrite in cash in twelve (C12) except in the case of termination for Cause, any bonus earned in a prior year but consecutive equal monthly payments commencing not yet paid on the date of termination, later than thirty (D30) 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), for a period of six (6) months from days after the effective date of such termination, (C) an amount equal the termination of Employee's employment. No interest shall accrue or be payable on or with respect to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) any Severance Payment. In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any event.
(iv) Except as expressly provided Employee's employment described in this Section 10(b4(b), upon Employee shall be provided continued "COBRA" coverage pursuant to Sections 601 et seq. of ERISA under Dendrite's group medical and dental plans. During the termination period which Employee receives the Severance Payment, Employee's cost of COBRA coverage shall be the Executive’s employmentsame as the amount paid by employees of Dendrite for the same coverage under Dendrite's group health and dental plans. Notwithstanding the foregoing, all payments hereunder in the event Employee becomes re-employed with another employer and becomes eligible to receive health coverage from such employer, the payment of COBRA coverage by Dendrite as described herein shall cease.
(vc) The payments and benefits described in Sections 10(b)(iimaking of any Severance Payment under Section 4(b) and 10(b)(iii) are in lieu of, and not in addition to, any other severance arrangement maintained by hereunder is conditioned upon the Company. The payments and benefits described in Sections 10(b)(ii) and 10(b)(iii), other than the Accrued Benefits, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or her termination of employment, signing of a general release of claims against the Company in form and substance satisfactory to Dendrite under which Employee releases Dendrite and its affiliates substantially together with their respective officers, directors, shareholders, employees, agents and successors and assigns from any and all claims he may have against them. In the event Employee breaches Sections 7, 8, 9 or 11 of this Agreement, in the form attached hereto as Exhibit A (the “Release”addition to any other remedies at law or in equity, Dendrite may cease making any Severance Payment or any payments for COBRA coverage otherwise due under Section 4(b). Subject to Section 11 below, the Severance Benefits will begin to be paid Nothing herein shall affect any of Employee's obligations or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable Dendrite's rights under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vid) The Executive For purposes of this Agreement, "Cause" as used herein shall not mean (i) any gross misconduct on the part of Employee with respect to his duties under this Agreement, (ii) the engaging by Employee in an indictable offense which relates to Employee's duties under this Agreement or which is likely to have a material adverse effect on the business of Dendrite, (iii) the commission by Employee of any willful or intentional act which injures in any material respect or could reasonably be required expected to seek injure in any material respect the reputation, business or accept other employmentbusiness relationships of Dendrite, including without limitation, a breach of Sections 7, 8 or 11 of this Agreement, or otherwise (iv) the engaging by Employee through gross negligence in conduct which injures materially or could reasonably be expected to mitigate damages, as a condition to receipt injure materially the business or reputation of the benefits 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 source, except to the extent provided in Section 10(b)(vii), belowDendrite.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. (ia) In the event of any termination of the Executive’s that Executive voluntarily terminates his employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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 employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’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, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or if the Executive terminates this Agreement during the twelve (12) any reason within 12 months after a Change of Control event, as defined in Section 12.1, then the Company shall (i) pay to Executive on the Release Effective Date (as defined below), in a lump sum cash payment, an amount equal to his annual Base Salary in effect on the date of his termination from employment, less any applicable federal and state taxes and withholdings, and (ii) to the extent that Executive is eligible for and timely elects continuation of health benefits for himself and/or his eligible dependents under the Company’s group health plans pursuant to COBRA or any analogous state or local law, pay or reimburse Executive for the amount of any insurance premiums for such continuation coverage for a twelve-month period after the Release Effective Date, but these payments shall be limited to the amount of the premiums being paid by the Company for Executive’s coverage immediately prior to the date of his termination from employment. To receive any severance pay and benefits hereunder (other than Accrued Compensation, as defined below), Executive shall first be required to execute and deliver to the Company a valid and fully effective general waiver and release of any claims against the Company, its affiliates, officers, directors, agents and employees in a form satisfactory to the Company, within the consideration period set forth in the waiver and release, which period shall not exceed forty-five (45) days after the effective date of his termination from employment (the “General Release”). The date upon which the General Release is executed and delivered to the Company, and can no longer be revoked, is referred to as a the “Release Effective Date.”
(b) By no later than two weeks after the date of Executive’s termination from employment under this Section 10(a)(v(or earlier if required by applicable law or the Company’s policies), the Company shall (A) pay or provide to Executive any Accrued Compensation. “Accrued Compensation” shall mean any Base Salary owed to Executive for services performed before the date of his termination from employment, any bonuses earned, if any, for bonus periods that have concluded prior to the Executive date of his termination (and not including bonuses for the Accrued Benefits, (B) pay the Executive a pro-rata annual bonus in respect of the fiscal year period in which the effective date of Executive’s termination occurs (determined based on actual performance and the number of days the Executive is employed occurs, unless otherwise provided by the Company in such fiscal yearits discretion), with such annual bonus (if any) paid at the same or any unused vacation or personal time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees applicable policies 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Sources: Employment Agreement (Regenerx Biopharmaceuticals Inc)
Severance. (ia) In the event of any termination of the that Executive’s employment is terminated by the Company without Cause, or by Executive for any reasonGood Reason, then upon such termination the Executive (or his or her estate) Company shall be entitled to (A) his or her pay Executive’s earned and accrued Base Salary and any earned but unpaid Performance Bonus through the date of termination, (B) at the value of his or her accrued but unused vacation and paid rate in effect at the time off through the date of termination, (C) except and 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 employment by reason of deathaddition, the Company shall shall:
(i) continue to pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, Salary at the rate in accordance with its normal payroll practices effect at the time of termination (but not less frequently than monthly), without regard to any reduction in Base Salary that served as the basis for a resignation for Good Reason) for a period of six (6) months from the effective date of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through following the date of termination (determined based on the number of days “Severance Period”) in accordance with the Company’s ordinary payroll practice;
(ii) provided that the Executive is employed by makes a timely election to continue coverage, pay directly to the Company in such year) insurance provider the premium for COBRA continuation coverage for the Executive and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at dependants during the CompanySeverance Period or he obtains new employment, whichever comes first (the benefits described in Sections 10(a)(i) and (ii) are collectively referred to as the “Severance Benefits”);
(iii) the vesting applicable to all unvested Options and other equity incentive awards shall cease immediately and the Executive shall have a period of 90 days to exercise any and all vested Options, after which time all Options shall expire; provided, however, that no such Options shall be exercisable after the expiration of its maximum term pursuant to the terms thereof.
(b) In the event that Executive’s expense (or such portion thereof as employment is then funded terminated by the Company for other employees of the Company) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii)Cause, or if the by Executive terminates this Agreement during the twelve (12) months after a Change of Control pursuant to Section 10(a)(v)other than for Good Reason, then upon such termination 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her earned and accrued Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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 Salary through the date of termination, using a reputable provider selected by at the rate in effect at the time of termination, and (i) Executive with the Company’s consent, which shall not be unreasonably withheldentitled to any Severance Benefits, provided and (ii) the vesting applicable to all unvested Options or other equity incentive awards shall cease immediately and the Executive shall have a period of 90 days to exercise any and all vested Options, after which time all Options shall expire; provided, however, that no such outplacement expenses Option shall not exceed $25,000 in any eventbe exercisable after the expiration of its maximum term pursuant to the terms thereof.
(ivc) Except as expressly provided In the event that Executive’s employment is terminated without Cause or Executive terminates his employment for Good Reason at any time during the 12 months following a Transfer of Control, then: Executive shall be entitled to receive the Severance Benefits; and
(i) all unvested Options and other equity incentive awards shall immediately vest in this Section 10(b)full and remain exercisable, if applicable, for a period of 90 days following the date of such termination; provided, however, that no such Option shall be exercisable after the expiration of its maximum term. In order to give effect to the foregoing provision, notwithstanding anything to the contrary set forth in the Executive’s option agreements regarding immediate forfeiture of unvested shares upon termination of service or the duration of post-termination of service exercise periods, following any termination of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The none of Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or Options shall terminate with respect to any amount payable under vested or unvested portion subject to such equity incentive awards before 90 days following such termination.
(d) This Section 10(b)(iii)(B9 sets forth the only obligations of the Company with respect to the termination of Executive’s employment with the Company, and Executive acknowledges that, upon the termination of his employment, he shall not be entitled to any payments or benefits which are not explicitly provided in Section 9. Further, notwithstanding anything to the contrary contained herein, the Company shall have no obligation to pay, and Executive shall have no obligation to receive, any compensation, benefits or other consideration provided for in this Section 9 (the “Payments”) following termination of Executive’s employment unless Executive executes in no event later than 45 days following Executive’s termination (the “Release Deadline”) a separate agreement (the “Release Agreement”), at such later time as specified therein)releasing the Company from any and all liability in connection with the termination of Executive’s employment; provided provided, however, that if the seventy (70) day period following failure to execute the Release Agreement shall not relieve the Company of its obligation to pay to Executive, and Executive shall be entitled to receive, the amount of any earned and/or accrued but unpaid Base Salary, earned but unpaid Performance Bonus and accrued vacation through the date of termination begins termination. The Company will pay the Payments in one taxable accordance with its regular payroll schedule; provided, however, that no Payments will be paid prior to the Release Deadline. If the Company determines that the Payments constitute “deferred compensation” under Section 409A (as defined in Section 11), and Executive’s Separation from Service (as defined in Section 11) occurs at a time during the calendar year and ends when the Release Agreement could be executed in a second taxable yearthe calendar year following the calendar year in which Executive’s Separation from Service occurs, such payments then regardless of when the Release is returned to the Company, the Release will not be deemed executed any earlier than the Release Deadline. Notwithstanding any other payment schedule set forth in this Agreement, none of the Payments will be paid or benefits shall not commence otherwise delivered prior to the execution of the Release Agreement. Except to the extent that Payments may be delayed until the second taxable year. The initial payment Specified Employee Initial Payment Date pursuant to Section 11, on the first regular payroll pay day following the execution of the Release, the Company will include any Severance Benefits that, pay Executive the Payments Executive would otherwise have received under the Agreement on or prior to such date but for the above-described timing rule, would have otherwise been paid since delay in Payments related to the date execution of the Executive’s cessation Release, with the balance of employmentthe Payments being paid as originally scheduled.
B. (e) The Executive’s continued compliance with Company shall withhold all applicable federal, state and local taxes and social security and such other amounts as may be required by law from all amounts payable to the Executive under this Section 9.
(f) The provisions of Sections 5, 6, 7 and 8 this Section 9 shall survive any termination of this Agreement.
(vig) The Executive For purposes of this Agreement, “Cause” shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt include any of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.following:
Appears in 1 contract
Severance. (i) In a. If Company terminates this Agreement for any reason other than Cause, and in consideration of and contingent upon the event execution and delivery by Executive of a mutually agreeable general release of all claims and expiration of any termination of the Executive’s employment for any reasonapplicable revocation period in connection therewith, the Executive (or his or her estate) shall be entitled to a severance payment equal to three (A3) his or her months of Base Salary through the date (“Severance”). The Severance shall be increased by an additional month of termination, (B) the value of his or her 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 Base Salary on the date second anniversary 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 employment with the Company, and shall increase by reason an additional one month of deathBase Salary for every two years of employment thereafter. Irrespective of Executive’s tenure, however, the Company Severance shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), for a period of exceed six (6) months from the effective date of such termination, (C) an amount equal to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B)Base Salary.
(iii) b. In the event at any point during the term of this Agreement a termination by controlling interest in the Company pursuant is sold to Section 10(a)(iiian unaffiliated third party (“Sale Event”), or the then-current Severance shall double if the Executive terminates this Agreement during the twelve (12) months after has a Change of Control pursuant to Section 10(a)(v), the Company shall (A) pay material change in duties 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 actual performance and the number of days the Executive is employed Terminated without Cause by the new Company owner. Unless terminated for Cause, this clause shall remain in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) effect for a period of twelve two (122) months from the effective date of years after any 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any eventSale Event.
(iv) Except as expressly provided in this Section 10(b), upon the termination of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten in a lump sum within sixty (1060) days after the Release becomes irrevocable termination, provided that if, at the time of the Severance Event, Executive is considered a “specified employee” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), the Severance shall be delayed until the first day of the seventh month following the month in which the Severance Event occurs.
d. If applicable, the Severance will be offset by any income protection benefits payable to Executive during the first twelve months of a qualifying disability under the Company’s group short-term and long-term disability insurance plans.
e. Notwithstanding the foregoing to the contrary, in no event shall the Severance constitute a “Parachute Payment” within the meaning of the Section 280G(b)(2) of the Code. In the event that any portion of the Severance would be deemed a Parachute Payment, the amount of the Severance shall be reduced only to the extent necessary to eliminate any such treatment or characterization.
f. It is the intent of the parties that payments under this Agreement comply with Section 409A of the Code, and, accordingly, to interpret, to the maximum extent permitted, this Agreement to be in compliance therewith. If the Executive notifies the Company in writing (with specificity as to the reason therefore) that the Executive believes that any provision of this Agreement (or with respect of any payment of compensation under this Agreement) would cause the Executive to incur any amount payable additional tax or interest under Section 10(b)(iii)(B)409A of the Code, at and the Company concurs with such later time as specified therein); provided belief or the Company (without any obligation whatsoever to do so) independently makes such determination, the parties shall, in good faith, reform such provision to attempt to comply with Section 409A through good faith modifications to the minimum extent reasonably appropriate to conform with Section 409A. To the extent that if any provision hereof is modified by the seventy (70) day period following parties to attempt to comply with Section 409A of the date of termination begins in one taxable year and ends in a second taxable yearCode, such payments or benefits modification shall not commence until be made in good faith and shall, to the second taxable year. The initial payment will include any Severance Benefits thatmaximum extent reasonably possible, but for maintain the above-described timing rule, would have otherwise been paid since the date original intent of the Executive’s cessation of employment.
B. The Executive’s continued compliance with applicable provision without violating the provisions of Sections 5Section 409A. Notwithstanding the foregoing, 6, 7 and 8 of this Agreement.
(vi) The Executive the Company shall not be required to seek assume any economic burden in connection with compliance or accept other employment, or otherwise to mitigate damages, as a condition to receipt noncompliance with Section 409A of the benefits 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 source, except to the extent provided in Section 10(b)(vii), belowCode.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Sources: Employment Agreement (Air T Inc)
Severance. (ia) In the event of any termination of the that Executive’s employment is terminated by the Company without Cause, or by Executive for any reasonGood Reason (each as hereinafter defined), then, Subject to Section 9(d) and Section 10:
(i) the Executive (or his or her estate) Company shall be entitled to (A) his or her pay Executive’s accrued but unpaid Base Salary through the date of termination, (B) at the value rate in effect at the time of his or her termination, accrued but unused vacation vacation, and reimburse Executive for any unreimbursed business expenses incurred prior to the date of termination;
(ii) the Company shall continue to pay Executive’s Base Salary at the rate in effect at the time of termination (without regard to any reduction in Base Salary that served as the basis for a resignation for Good Reason) for a period of 12 months following the date of termination in accordance with the Company’s ordinary payroll practice;
(iii) to the extent permitted by applicable healthcare laws and provided that Executive makes a timely election to continue coverage, the Company shall pay directly to the insurance provider the premium for COBRA continuation coverage for Executive and Executive’s dependents, less the amount payable by an active employee for such coverage, for a period of 12 months or until he obtains new employment, whichever comes first (the benefits described in this Section 9(a)(iii) shall be referred to as the “Continued Benefits”). Notwithstanding the foregoing, in the event that applicable healthcare laws do not permit continuation of coverage, then the Company shall reimburse Executive for the costs of obtaining coverage in an amount not to exceed the coverage amounts paid or payable by Executive immediately prior to the date of termination; and
(iv) the vesting applicable to all Equity Awards granted during the Term shall cease immediately and Executive shall have a period of 90 days to exercise any and all vested Equity Awards, after which time off all Equity Awards shall expire; provided, however, that no such Equity Award that is an option shall be exercisable after the expiration of its maximum term pursuant to the terms thereof.
(b) In the event that Executive’s employment is terminated by the Company for Cause, or by Executive other than for Good Reason, then:
(i) the Company shall pay Executive’s accrued but unpaid Base Salary through the date of termination, (C) except at the rate in effect at the case of termination for Cause, any bonus earned in a prior year but not yet paid on the date time of termination, (D) reimbursement of all accrued but unused vacation, and reimburse Executive for any unreimbursed business expenses properly incurred prior to the date of termination consistent termination;
(ii) Executive shall not be entitled to receive any payments or Continued Benefits described in this Section 9; and
(iii) the vesting applicable to all Equity Awards shall cease immediately and Executive shall have a period of 90 days to exercise any and all vested Equity Awards, after which time all Equity Awards shall expire; provided, however, that no such Equity Award that is an option shall be exercisable after the expiration of its maximum term pursuant to the terms thereof.
(c) If a Change in Control occurs during the Term and the successor corporation (or a parent or subsidiary of the successor corporation) (1) does not offer Executive employment on terms comparable to Executive’s then existing terms of employment with the Company policyand in connection therewith, Executive terminates employment; or (2) Executive’s employment is terminated by such successor corporation without Cause or by Executive for Good Reason, within one-year after the Change in Control, then:
(i) the Company shall pay Executive’s accrued but unpaid Base Salary through the date of termination, at the rate in effect at the time of termination, accrued but unused vacation, and reimburse Executive for any unreimbursed business expenses incurred prior to the date of termination;
(Eii) any benefits, including any continuation or conversion rights, provided under any employee benefit plan or policy of the Company shall continue to pay Executive’s Base Salary at the rate in effect at the time of termination (not including without regard to any severance, separation pay, or supplemental unemployment benefit plan), reduction in Base Salary that served as the basis for a resignation for Good Reason) for a period of 18 months following the date of termination in accordance with the terms of such plan or policy (the “Accrued Benefits”).Company’s ordinary payroll practice;
(iiiii) In the event of termination of the Executive’s employment by reason of death, the Company shall pay or provide Executive a Performance Bonus in an amount equal to 1.5 times the Executive’s estate: greater of (A1) the Accrued Benefits, target bonus for the applicable calendar year; and (B2) the Executive’s Base Salaryaverage of the Performance Bonus received by Executive for the two years immediately preceding termination;
(iv) the Company shall provide the Continued Benefits to Executive for a period of 18 months following the date of termination or until he obtains new employment, whichever comes first; and
(v) All unvested Equity Awards shall immediately vest in accordance with its normal payroll practices (but not less frequently than monthly)full and remain exercisable, if applicable, for a period of six 90 calendar days following the date of such termination; provided, however, that no such Equity Award that is an option shall be exercisable after the expiration of its maximum term pursuant to the terms thereof. In order to give effect to the foregoing provision, notwithstanding anything to the contrary set forth in any agreement governing an Equity Award regarding immediate forfeiture of unvested shares upon termination of service or the duration of post-termination of service exercise periods, following any termination of Executive’s employment, none of Executive’s equity incentive awards shall terminate with respect to any vested or unvested portion subject to such Equity Award before 90 days following such termination.
(6d) months This Section 9 sets forth the only obligations of the Company with respect to the termination of Executive’s employment with the Company, and Executive acknowledges that, upon the termination of his employment, he shall not be entitled to any payments or benefits which are not explicitly provided in this Section 9. Further, notwithstanding anything to the contrary contained herein, the Company shall have no obligation to pay, and Executive shall have no right to receive, any compensation, benefits or other consideration provided for in this Section 9 (other than any accrued but unpaid Base Salary through the date of termination and any reimbursement of unreimbursed expenses incurred prior to the date of termination) (the “Payments”) unless Executive executes an agreement in a form satisfactory to the Company (the “Release Agreement”) releasing the Company from any and all liability in connection with Executive’s employment or the termination thereof that becomes effective no later than 60 days following Executive’s termination (the “Release Deadline”). Except as required by Section 10, the Payments will commence on the first payroll period following the Release Agreement becoming effective; provided, that (i) if the Payments (or any portion thereof) constitute “deferred compensation” within the meaning of Section 409A (as defined in Section 10) and (ii) the period commencing on the date of termination and ending on the Release Deadline spans two calendar years, then the Payments (or such portion thereof that constitute “deferred compensation”) will commence on the later of the Release Agreement becoming effective and the first payroll date of the Company in the second calendar year. Any portion of the Payments that is delayed due to the application of the preceding sentence shall be made on the date that the Payments commence.
(e) Effective as of the date of any termination of Executive’s employment, unless otherwise agreed to by Executive and the Board, upon termination of Executive’s employment hereunder for any reason, Executive shall be deemed to have resigned from all offices held at the Company or any subsidiary or other Affiliate of the Company at the date of such termination, (C) an amount equal to including without limitation the Executive’s Target Bonus for the fiscal year position of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B)General Counsel.
(iiif) In the event of a termination by the Company pursuant to 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 The Company shall (A) pay or provide withhold all applicable federal, state and local taxes and social security and such other amounts as may be required by law from all amounts payable 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in any eventunder this Section 9.
(ivg) Except as expressly provided in The provisions of this Section 10(b), upon the 9 shall survive any termination of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vih) The Executive For purposes of this Agreement, “Cause” shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt include any of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.following:
Appears in 1 contract
Severance. (ia) In the event of any termination of the that Executive’s employment is terminated by the Company without Cause, or by Executive for any reasonGood Reason (each as hereinafter defined), then:
(i) the Executive (or his or her estate) Company shall be entitled to (A) his or her pay Executive’s accrued but unpaid Base Salary through the date of termination, (B) at the value rate in effect at the time of his or her termination, accrued but unused vacation vacation, and reimburse Executive for any unreimbursed business expenses incurred prior to the date of termination;
(ii) the Company shall continue to pay Executive’s Base Salary at the rate in effect at the time of termination (without regard to any reduction in Base Salary that served as the basis for a resignation for Good Reason) for a period of 12 months following the date of termination in accordance with the Company’s ordinary payroll practice;
(iii) to the extent permitted by applicable healthcare laws and provided that the Executive makes a timely election to continue coverage, the Company shall pay directly to the insurance provider the premium for COBRA continuation coverage for the Executive and the Executive’s dependents, less the amount payable by an active employee for such coverage, for a period of 12 months or until he obtains new employment, whichever comes first (the benefits described in this Section 9(a) shall be referred to as the “Continued Benefits”). Notwithstanding the foregoing, in the event that applicable healthcare laws do not permit continuation of coverage, then the Company shall reimburse Executive for the costs of obtaining coverage in an amount not to exceed the coverage amounts paid or payable by Executive immediately prior to the date of termination; and
(iv) the vesting applicable to all Equity Awards granted during the Term shall cease immediately and the Executive shall have a period of 90 days to exercise any and all vested Equity Awards, after which time off all Equity Awards shall expire; provided, however, that no such Equity Award shall be exercisable after the expiration of its maximum term pursuant to the terms thereof.
(b) In the event that Executive’s employment is terminated by the Company for Cause, or by Executive other than for Good Reason, then:
(i) the Company shall pay Executive’s accrued but unpaid Base Salary through the date of termination, (C) except at the rate in effect at the case of termination for Cause, any bonus earned in a prior year but not yet paid on the date time of termination, (D) reimbursement of all accrued but unused vacation, and reimburse Executive for any unreimbursed business expenses properly incurred prior to the date of termination consistent termination;
(ii) Executive shall not be entitled to receive any payments or Continued Benefits described in this Section 9; and
(iii) the vesting applicable to all Equity Awards shall cease immediately and the Executive shall have a period of 90 days to exercise any and all vested Equity Awards, after which time all Equity Awards shall expire; provided, however, that no such Equity Award shall be exercisable after the expiration of its maximum term pursuant to the terms thereof.
(c) If a Change in Control occurs during the Term of Executive’s employment with the Company policyand the successor corporation (or a parent or subsidiary of the successor corporation) (1) does not offer Executive employment on terms comparable to Executive’s then existing terms of employment with the Company and in connection therewith, Executive terminates employment; or (2) Executive’s employment is terminated by such successor corporation without Cause or by Executive for Good Reason, within one-year after the Change in Control, then:
(i) the Company shall pay Executive’s accrued but unpaid Base Salary through the date of termination, at the rate in effect at the time of termination, accrued but unused vacation, and reimburse Executive for any unreimbursed business expenses incurred prior to the date of termination;
(Eii) any benefits, including any continuation or conversion rights, provided under any employee benefit plan or policy of the Company shall continue to pay Executive’s Base Salary at the rate in effect at the time of termination (not including without regard to any severance, separation pay, or supplemental unemployment benefit plan), reduction in Base Salary that served as the basis for a resignation for Good Reason) for a period of 12 months following the date of termination in accordance with the terms of such plan or policy (the “Accrued Benefits”).Company’s ordinary payroll practice;
(iiiii) In the event of termination of the Executive’s employment by reason of death, the Company shall pay or provide Executive a Performance Bonus in an amount equal to the Executive’s estate: greater of (A1) the Accrued Benefits, target bonus for the applicable calendar year; and (B2) the Executive’s Base Salaryaverage of the Performance Bonus received by Executive for the two years immediately preceding termination;
(iv) the Company shall provide the Continued Benefits to Executive for a period of 12 months following the date of termination or until he obtains new employment, whichever comes first; and
(v) all unvested Equity Awards shall immediately vest in accordance with its normal payroll practices (but not less frequently than monthly)full and remain exercisable, if applicable, for a period of six (6) months from 90 calendar days following the effective date of such termination; provided, (C) an amount equal however, that no such option shall be exercisable after the expiration of its maximum term pursuant to the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B).
(iii) terms thereof. In the event of a termination by the Company pursuant order to 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 give effect to the Executive foregoing provision, notwithstanding anything to the Accrued Benefits, (B) pay the Executive a pro-rata annual bonus contrary set forth in respect any agreement governing an Equity Award regarding immediate forfeiture of the fiscal year in which the effective date of termination occurs (determined based on actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s unvested shares upon termination of employmentservice or the duration of post-termination of service exercise periods, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 in following any event.
(iv) Except as expressly provided in this Section 10(b), upon the termination of the Executive’s employment, all payments hereunder none of Executive’s equity incentive awards shall ceaseterminate with respect to any vested or unvested portion subject to such Equity Award before 90 days following such termination.
(vd) The payments and benefits described in Sections 10(b)(ii) and 10(b)(iii) are in lieu ofThis Section 9 sets forth the only obligations of the Company with respect to the termination of Executive’s employment with the Company, and Executive acknowledges that, upon the termination of his employment, he shall not be entitled to any payments or benefits which are not explicitly provided in addition tothis Section 9. Further, notwithstanding anything to the contrary contained herein, the Company shall have no obligation to pay, and Executive shall have no right to receive, any compensation, benefits or other severance arrangement maintained by the Company. The payments and benefits described consideration provided for in Sections 10(b)(ii) and 10(b)(iii), this Section 9 (other than any accrued but unpaid Base Salary through the Accrued Benefits, date of termination and any reimbursement of unreimbursed expenses incurred prior to the date of termination) (the “Severance BenefitsPayments”) are conditioned unless Executive executes an agreement in a form satisfactory to the Company (the “Release Agreement”) releasing the Company from any and all liability in connection with the Executive’s employment or the termination thereof that becomes effective no later than 60 days following Executive’s termination (the “Release Deadline”). Except as required by Section 10, the Payments will commence on clauses the first payroll period following the Release Agreement becoming effective; provided, that (Ai) if the Payments (or any portion thereof) constitute “deferred compensation” within the meaning of Section 409A (as defined in Section 10) and (Bii) below:
A. The Executive’s the period commencing on the date of termination and ending on the Release Deadline spans two calendar years, then the Payments (or such portion thereof that constitute “deferred compensation”) will commence on the later of the Release Agreement becoming effective and the first payroll date of the Company in the case second calendar year. Any portion of the Payments that is delayed due to the application of the preceding sentence shall be made on the date that the Payments commence.
(e) Effective as of the date of any termination of the Executive’s deathemployment, his/her estate’s) execution unless otherwise agreed to by Executive and delivery the Board, upon termination of Executive’s employment hereunder for any reason, Executive shall be deemed to have resigned from all offices held at the Company and the expiration or any subsidiary or other affiliate of all applicable statutory revocation periods, by the sixtieth (60th) day following the effective date of his or 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”). Subject to Section 11 below, the Severance Benefits will begin to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable yearsuch termination, such payments or benefits shall not commence until including without limitation the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date position of the Executive’s cessation of employmentCFO.
B. (f) The Executive’s continued compliance with Company shall withhold all applicable federal, state and local taxes and social security and such other amounts as may be required by law from all amounts payable to the Executive under this Section 9.
(g) The provisions of Sections 5, 6, 7 and 8 this Section 9 shall survive any termination of this Agreement.
(vih) The Executive For purposes of this Agreement, “Cause” shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt include any of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.following:
Appears in 1 contract
Severance. (ia) In the event of any your termination of employment from the Executive’s employment Company by reason of your death, Disability, voluntary resignation without Good Reason or by the Company for any reasonCause, the Executive (or his or her estate) shall you will be entitled to receive (Ai) his or her any unpaid Base Salary through the date of termination, ; (B) the value of his or her accrued but unused vacation and paid time off through the date of termination, (Cii) except in the case of your termination by the Company for Cause, any bonus Annual Bonus earned in a prior but unpaid with respect to the fiscal year but not yet paid ending on or preceding the date of termination, payable at the same time as it would have been paid provided you had not undergone a termination of employment; (Diii) except in the case of your termination by the Company for Cause, a pro rata Annual Bonus (based on the number of days of employment in the calendar year in which such termination occurs) based on actual Company performance through the applicable performance period, payable the same time as the Annual Bonus would otherwise have been paid provided there had been no termination of employment during such calendar year; (iv) reimbursement of all in accordance with applicable Company policy for any unreimbursed business expenses properly incurred prior to through the date of termination consistent termination; (v) any accrued but unused vacation time in accordance with Company policy, policy and (Evi) all other payments, benefits or fringe benefits (excluding any severance or termination benefits) to which you shall be entitled under the terms of any applicable compensation arrangement or benefit, including any continuation equity or conversion rights, provided under any employee fringe benefit plan or policy of the Company program or grant or this Agreement (not including any severancecollectively, separation pay, or supplemental unemployment benefit plan), in accordance with the terms of such plan or policy (Sections 9(a)(i) through 9(a)(vi) hereof shall be hereafter referred to as the “Accrued Benefits”).
(b) Subject to Section 9(c) below, in the event of your termination of employment from the Company by you for Good Reason or by the Company without Cause (each, a “Qualifying Termination”) during the three (3)-year period after the Start Date, in addition to the Accrued Benefits, you will be entitled to continuation of your Base Salary for the period starting on the date of termination and ending on the later of (i) the three year anniversary of the Start Date or (ii) the one year anniversary of the date of termination, in accordance with the Company’s payroll practices in effect on the date of your termination of employment; provided that the payments described above in this Section 9(b) (the “Severance Payments”) shall continue only during the period that you do not engage in a Prohibited Activity as described in the restrictive covenants agreement referenced in Section 10 below. In the event of termination your Qualifying Termination after the three (3)-year period after the Start Date, you will receive severance benefits from the Company in accordance with the severance practices of the Executive’s employment by reason of deathCompany, the Company shall pay or provide to the Executive’s estate: but, in any event, a total amount no less than (Ai) the Accrued Benefits, Benefits and (B) the Executive’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, (Cii) an amount equal to the Executiveone year’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company) for the period described above in clause (B)Base Salary.
(iiic) In the event of a termination by the Company pursuant to Section 10(a)(iii), or Severance Payments shall only be payable 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the Executive’s death, his/her estate’s) execution and delivery you deliver to the Company and do not revoke a general release of claims in favor of the expiration Company in substantially the form of all applicable statutory revocation periodsExhibit B attached hereto. Such release shall be executed and delivered (and no longer subject to revocation, by if applicable) within sixty (60) days following termination. To the extent payment of any amount of the Severance Payments constitutes “nonqualified deferred compensation” for purposes of Code Section 409A, as defined in Section 16 below, any such payment scheduled to occur during the first sixty (60) days following the termination of employment shall not be paid until the sixtieth (60th) day following the effective date of his or her such termination of employment, employment and shall include payment of a general release of claims against the Company and its affiliates substantially in the form attached hereto as Exhibit A (the “Release”). Subject to Section 11 below, the Severance Benefits will begin any amount that was otherwise scheduled to be paid or provided ten (10) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have otherwise been paid since the date of the Executive’s cessation of employmentprior thereto.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. The sum of Two Million Seven Hundred Thousand Dollars and No Cents (i) In the event of any termination of the Executive’s employment for any reason, the Executive (or his or her estate) shall be entitled to (A) his or her Base Salary through the date of termination, (B) the value of his or her 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$2,700,000.00), less applicable federal and state withholding and all other ordinary payroll deductions, to be paid in accordance with the terms of such plan or policy (the “Accrued Benefits”).
(ii) In the event of termination of the ExecutiveCompany’s employment by reason of death, the Company shall pay or provide to the Executive’s estate: (A) the Accrued Benefits, (B) the Executive’s Base Salary, in accordance with its normal ordinary payroll practices (but not less frequently than monthly), for over a period of six approximately eighteen (618) months from months. Severance payments will begin within thirty (30) days after the effective date of such terminationSeparation Date, (C) an amount equal to if the Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (determined based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such termination, and (D) continued health benefits for the Executive’s eligible dependents at the Company’s expense (or such portion thereof as is then funded by the Company for other employees expiration of the Company) for the seven-day revocation period described above noted in clause (B).
(iii) In the event of a termination by the Company pursuant to Section 10(a)(iii), or 4.11 has passed and only if the Executive terminates Employee does not revoke 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly)Agreement, and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, provided that such outplacement expenses shall not exceed $25,000 until paid in any event.
(iv) Except as expressly provided in this Section 10(b), upon the termination of the Executive’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, full (the “Severance Benefits”) are conditioned on clauses (A) and (B) below:
A. The Executive’s (or in the case of the 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 his or 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 “ReleasePay Period”). Subject Employee hereby acknowledges the sufficiency of this payment from Company. If Employee violates the non-compete provision of Section 7 of the Employment Agreement during the Severance Pay Period (but without regard to Section 11 belowwhether Employee’s activities are within or outside the non-compete area specified in such provision), the severance payments shall cease. The foregoing shall not affect Company’s right to enforce any restrictive covenants previously agreed to by Employee. Additionally, if Employee is rehired by Company during the Severance Benefits will begin Pay Period, the severance payments shall cease; however, in this event, if Employee’s new annualized base salary is less than Employee’s previous annualized base salary, Company agrees to be continue to pay to Employee the difference between Employee’s previous annualized base salary and Employee’s new annualized base salary for the remainder of the Severance Pay Period. Notwithstanding anything herein to the contrary, to the extent any of the payments under this Section 2.3 are not exempt from Section 409A and such payments would, but for this sentence, have been paid or provided ten (10) days after within the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day six month period following the date of termination begins in one taxable year and ends in a second taxable yearSeparation Date, such payments or benefits shall not commence until be deferred and shall be paid on the second taxable year. The initial payment will include any Severance Benefits that, but for first to occur of (a) the above-described timing rule, would have otherwise been paid since date that is six months after the date of separation from service or (b) the Executive’s cessation date of employmentdeath of Employee.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will cease.
Appears in 1 contract
Severance. (i) In the event of any Upon termination of the Executive’s employment for Employment Period pursuant to Sections 4(b) or 4(d) (but in any reasonevent 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 (or his or her estate) shall be entitled to (A) his or her Base Salary through executes a mutual general release with the date of termination, (B) the value of his or her accrued but unused vacation and paid time off through the date of termination, (C) except Company in the case form attached hereto as Exhibit B (with such changes therein as independent outside counsel selected by the Company and approved by the Executive, which approval shall not be unreasonably withheld, reasonably determines at the time of termination for Causeare required to comply with applicable law, any bonus earned in a prior year but not yet paid on the date of termination, (D“Release”) 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 Section 7 and has not breached any of such plan or policy (the “Accrued Benefits”).
(ii) In the event of termination of the Executive’s employment by reason of deathhis representations set forth in Section 9, the Company shall pay or provide to the Executive’s estate: :
(A) the Accrued Benefits, (B) the Executive’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, (Ca) an amount equal to the Executive’s Target Bonus for greater of (i) the fiscal year amount of termination pro-rated Base Salary that would have otherwise been due to Executive through the date expiration of termination the Employment Period (determined such amount to be calculated based on the number of days that the Executive is employed by the Company in such year) and paid promptly following such terminationupon his then current Base Salary), and (Dii) continued health benefits two (2) times his then applicable Base Salary (or in the event a reduction in Base Salary is the basis for the Executive’s eligible dependents at resignation, then the Company’s expense (or Base Salary in effect immediately prior to such portion thereof as is then funded by the Company for other employees of the Companyreduction) for the period described above in clause (B).
(iii) In the event of a termination by the Company pursuant to 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 actual performance and the number of days the Executive is employed by the Company in such fiscal year), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent the Executive’s termination of employment, (C) continue to pay the Executive his or her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his or her eligible dependents’, health insurance benefits at the Company’s expense (or such portion thereof as is then funded by the 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, using a reputable provider selected by the Executive with the Company’s consent, which shall not be unreasonably withheld, 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 of the Executive’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, (the “Severance BenefitsPayment”);
(b) are conditioned on clauses (Aany Special Bonus payable as set forth in Sections 2(b)(ii)(A) and or (B), as applicable;
(c) below:reimbursable expenses pursuant to Section 2(b)(vi), and
A. The (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 Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s (or its successors) health and medical insurance plans for the Executive and his covered dependents, in the case a manner intended to avoid any excise tax under Section 4980D of the Executive’s deathCode, his/her estate’sfor a period though the earlier of (x) execution the end of the applicable period that the Executive and/or his covered dependents, as applicable, are eligible for continuation coverage under COBRA and delivery (y) the Executive becoming eligible for coverage under the health and medical insurance plans of a subsequent employer (the “COBRA Coverage”). Subject to Section 12(b), all amounts payable pursuant to Section 5(a) shall be paid to the Company and the expiration of all applicable statutory revocation periods, by Executive in a single lump sum in cash on the sixtieth (60th) day following after the effective date of his termination and the Special Bonus shall be paid to the Executive as provided in Section 2(b)(ii)(A) or her termination of employment(B), of a general release of claims against the Company and its affiliates substantially in the form attached hereto as Exhibit A (the “Release”)applicable. Subject to Section 11 belowIn addition, the Severance Benefits Executive will begin also receive any Base Salary, reimbursable expenses and benefits earned for actual services rendered prior to be paid or provided ten such date payable to the Executive in a single lump sum in cash not later than five (105) days after the Release becomes irrevocable (or with respect to any amount payable under Section 10(b)(iii)(B), at such later time as specified therein); provided that if the seventy (70) day period following the date of termination begins in one taxable year and ends in a second taxable year, such payments or benefits shall not commence until the second taxable year. The initial payment will include any Severance Benefits that, but for the above-described timing rule, would have as otherwise been paid since the date of the Executive’s cessation of employment.
B. The Executive’s continued compliance with the provisions of Sections 5, 6, 7 and 8 of this Agreement.
(vi) The Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits 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 source, except to the extent provided in Section 10(b)(vii), below.
(vii) Any continuation of health insurance under this Section 10(b) will be accomplished by the Company’s waiver or payment of the applicable premium for COBRA continuation coverage. To the extent Executive (plan or his eligible dependents, as applicable) are not eligible, or cease to be eligible, for COBRA continuation (for example, because of their enrollment in another employer’s group health plan), the Company’s obligation to continue group health coverage under this Section 10(b) will ceaseprogram.
Appears in 1 contract