Severance. (a) If the Company terminates Employee’s employment with the Company without Cause in accordance with Section 6(c) prior to the expiration of the Initial Term, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d). (b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d). (c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement. (d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 4 contracts
Sources: Employment Agreement (Alpha Modus Holdings, Inc.), Employment Agreement (Alpha Modus Holdings, Inc.), Employment Agreement (Insight Acquisition Corp. /DE)
Severance. (a) If the Company terminates Employee’s employment with the Company without Cause in accordance with Section 6(c) prior Subject to the expiration of the Initial TermExecutive's continued compliance with his obligations under this Agreement, the Company shall pay Employee a severance have no obligation to the Executive other than: (i) the payment of the Executive's earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to twelve months the sum of Employee’s the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect on as of the date of termination), subject 50% of which shall be paid to subsections the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; (iv) treatment of the New Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as described below in Section 4.4(b), (c) and (d).
; (bv) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable subject to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months provisions of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, immediate payout of benefits previously accrued under the Severance Payment Company's Supplemental Executive Retirement Plan and (vi) executive outplacement benefits, except as otherwise required by law or by the terms of the Company's benefit plans (excluding severance plans); PROVIDED, that in the event that such termination is within six months following the Closing, (A) in lieu of the benefit set forth in clause (iii), the Company shall pay the Executive a lump sum cash amount equal to the product of (x) the multiple set forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and the Executive's target bonus amount (each, as in effect as of immediately prior to the Closing), (B) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, any Purchased Parent Shares shall be returned to the Company in exchange for a refund of the full purchase price within 30 days following such return and (C) in lieu of the benefit set forth in clause (iv) with respect to any Purchased Parent Shares, the Executive will be paid a lump sum cash amount within 30 days following the date of termination of employment equal to any amount withheld by the Company in connection with any Section 83(b) election made by the Executive with respect to the New Parent Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is on or after the Company’s first payroll payment date that is more than six months after the Closing but prior to the first anniversary of the Closing, in lieu of the benefit set forth in clause (6iii) months and the Severance Payment benefits set forth in clause (A) in the immediately preceding proviso, the Company shall pay the Executive over a 24-month period in equal monthly installments the product of (x) two and (y) the sum of the Executive's annual Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the date of termination). In the event that the Executive is otherwise payable pursuant eligible to this Agreement.
(d) Employee acknowledges and agrees receive the Severance Payment to which the Employee is entitled under severance benefits provided for by this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years4.4(a), the Severance Payment will Executive shall not be paid in the second calendar year. Employee’s right eligible to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches receive severance benefits under any of his obligations in Sections 8-11 of this Agreementother Company plan, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7policy, or agreement.
Appears in 4 contracts
Sources: Employment Agreement (Intelsat LTD), Employment Agreement (Intelsat LTD), Employment Agreement (Intelsat LTD)
Severance. Except in circumstances in which the Employee would be entitled to payments and benefits in connection with a Change of Control as provided in Section 4 below, in the event that during the term of this Agreement the Employee has a Separation from Service as a result of the Company terminating the Employee’s employment without Cause or the Employee terminating the Employee’s employment for Good Reason:
(a) If the Company terminates Employee’s employment with the Company without Cause in accordance with Section 6(c) prior to the expiration of the Initial Term, the The Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: of (i) twelve eighteen (18) months of the Employee’s Base Salary base monthly 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)the Employee’s employment terminates, and (ii) one hundred fifty percent (150%) of the Employee’s Average Annual Cash Bonus, subject plus (iii) if approved by the Compensation Committee of the Board, a Pro Rata Portion of the Employee’s Annual Cash Bonus, if any. Subject to subsections (c) and (d).
(c) Any severance Section 9 below, payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will shall be made in a lump sum within sixty (60) days after following the Employee’s Separation from Service.
(b) The Employee and such of the Employee’s dependents as are participating as of the date of the Employee’s employment termination (“Covered Dependents”) shall be entitled to continue to participate in the major medical and dental benefit plans sponsored and maintained by the Company from time to time for its employees on the same basis and at the same cost to the Employee as active employees of the Company and their dependents for a maximum period equal to the number of months for which the Company is terminated giving rise obligated to such Severance Payment pay the Employee’s base salary pursuant to Section 7(a3(a) above. Should the Employee for himself or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made herself or his or her Covered Dependents elect to continue participation in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment plans, the end of such continued participation, rather than the termination of the Employee’s employment, shall be considered the qualified event for purposes of the Employee’s and the Covered Dependents’ right to elect COBRA continuation coverage at their own expense. The foregoing notwithstanding, the right of the Employee to continue to participate in such programs shall terminate as of the date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon first eligible to participate in a major medical benefit program maintained by a successor employer, and subject the right of the Employee’s dependents to participate in such programs shall terminate as of the date that such dependents are first eligible to participate in an alternative employer sponsored major medical benefit program. As a condition to the Employee’s executing and delivering rights under this Section 3(b), the general release of claims Employee agrees to promptly notify the Company if either the Employee or his or her dependents who continue to participate in the form attached hereto as Exhibit B by the 45th day following the EmployeeCompany’s separation from service major medical and not revoking the release within the seven (7) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7dental benefit plans become eligible for alternative employer sponsored major medical benefit coverage.
Appears in 4 contracts
Sources: Severance and Change of Control Agreement (Regency Centers Corp), Severance and Change of Control Agreement (Regency Centers Corp), Severance and Change of Control Agreement (Regency Centers Corp)
Severance. (a) If Involuntary Termination other than for Cause, Death or Disability. Except as provided in the following sentence and Section 5(b), if the Company terminates Employee’s Executive's employment with the Company without Cause his consent and for a reason other than "Cause" (as defined below), Executive becoming "Disabled" (as defined below) or Executive's death, then promptly following such termination of employment, Executive will (i) receive a lump-sum payment equal to 100% of the Base Salary and target bonus, (ii) receive all accrued vacation, expense reimbursements and any other benefits due to Executive through the date of termination of employment in accordance with Section 6(cthe Company's then existing employee benefit plans and policies, (iii) prior be entitled to the expiration an additional twelve (12) months vesting of the Initial Termany Company stock options (whether granted to Executive on, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on before or after the date of terminationthis Agreement), subject (iv) have four (4) years following termination of employment to subsections exercise his vested Company stock options (c) and (d).
(b) If during the Term of this Agreement there is a CC Terminationwhether granted on, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on before or after the date of such CC Terminationthis Agreement), and (iiv) the Employee’s Average Annual Bonusbe paid his then existing Base Salary for a period of six (6) months following his termination of employment, subject to subsections (cvi) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A 50% of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more his target annual bonus not later than six (6) months following his termination of employment, (vii) receive Company-paid coverage for a period of eighteen (18) months for himself and his eligible dependents under the Severance Payment is otherwise payable pursuant Company's health benefit plans (or, at the Company's option, coverage under a separate plan), providing benefits that are no less favorable than those provided under the Company's plans immediately prior to this Agreement.
his termination of employment, (dviii) Employee acknowledges and agrees receive such other compensation or benefits from the Severance Payment to which Company as may be required by law (for example, under Section 4980B of the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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 releaseCode). If the Company terminates Executive's employment with the Company without his consent within eighteen (18) months after a "Change of Control" (as defined below) and for a reason other than Cause, then promptly following such fortytermination of employment, Executive will (i) receive a lump-five sum payment equal to 100% of the Base Salary and target bonus, (45ii) day period plus receive all accrued vacation, expense reimbursements and any other benefits due to Executive through the seven date of termination of employment in accordance with the Company's then existing employee benefit plans and policies, (7iii) day revocation period spans two calendar yearsbe entitled to immediate 100% vesting of any stock options granted to Executive (whether granted to Executive on, before or after the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 date of this Agreement. If Employee breaches any ), (iv) have four (4) years following termination of employment to exercise his obligations in Sections 8-11 vested Company stock options (whether granted on, before or after the date of this Agreement), he will (v) be paid his then existing Base Salary and target bonus for a period of one (1) year following his termination of employment, (vi) receive Company-paid coverage for a period of two (2) years for himself and his eligible dependents under the Company's health benefit plans (or, at the Company's option, coverage under a separate plan), providing benefits that are no less favorable than those provided under the Company's plans immediately return prior to his termination of employment, (vii) receive such other compensation or benefits from the Company any portion as may be required by law (for example, under Section 4980B of the Severance Payment that has been paid Code). All payments and benefits will be subject to him pursuant to Section 7applicable withholding.
Appears in 3 contracts
Sources: Employment Agreement (Atg Group Inc), Employment Agreement (Atg Group Inc), Employment Agreement (Atg Group Inc)
Severance. (a) A. If the Company voluntarily terminates EmployeeExecutive’s employment without cause (and other than as a result of Executive’s death or disability) or if Executive resigns his employment with Good Reason, then subject to the effectiveness of Executive’s executed general waiver and release of claims in favor of the Company without Cause and its affiliates (in accordance substantially the form attached hereto as Schedule 4), and provided Executive complies with Section 6(chis continuing obligations to the Company, Executive shall be entitled to receive (i) a lump sum payment equal to six (6) months of his Base Salary, less applicable withholdings and (ii) if Executive was enrolled in a group health plan (e.g., medical, dental, or vision plan) sponsored by the Company immediately prior to termination, and Executive elects to continue coverage under the expiration Consolidated Omnibus Budget Reconciliation Act of the Initial Term1985 (together with any state law of similar effect, “COBRA”), the Company shall will pay Employee a severance payment an the full amount equal to twelve of the premiums due for Executive and his eligible dependents for the first six (6) months of Employee’s Base Salary coverage under COBRA (or until such earlier time as Executive and/or his eligible dependents are no longer eligible for COBRA coverage). Executive must execute the release of claims with in effect on forty-five (45) days following the date of termination, subject and allow the release to subsections (c) and (d).
(b) become effective in accordance with its terms. If during the Term of this Agreement there is a CC Terminationrelease becomes effective within such time period, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to all three of the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to payments shall be paid on the sum of: (i) twelve months of Employee’s Base Salary in effect on first regular payroll pay date following the effective date of such CC Termination the release.
B. If the Company (or, if greaterapplicable, the highest Base Salary in effect during successor entity thereto) determines that these severance payments and benefits (the three year period ending on “Payments”) constitute “deferred compensation” under Section 409A of the date Internal Revenue Code (together, with any state law of such CC Termination)similar effect, and (ii) the Employee’s Average Annual Bonus, subject to subsections (c“Section 409A”) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee Executive is a “specified employee” of the Company or any successor entity thereto, as such term is defined in regulations Section 409A(a)(2)(B)(i) (a “Specified Employee”), then, solely to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the Payments shall be delayed as follows: on the earliest to occur of (i) the date that is six months and one day after the termination date, (ii) the date of the Eligible Employee’s death, or (iii) such earlier date, as reasonably determined in good faith by the Company (or any successor entity thereto), as would not result in any of the Payments being subject to adverse personal tax consequences under Section 409A (such earliest date, the “Delayed Initial Payment Date”), the Company (or the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the Code and Payments that Executive would otherwise have received through the Severance Delayed Initial Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A Date if the commencement of the Code, payment of the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable Payments had not been delayed pursuant to this Agreement.
Section 9(B) and (dB) Employee acknowledges and agrees commence paying the Severance Payment to which balance of the Employee Payments in accordance with the applicable payment schedules set forth in Section 9(A) above. For the avoidance of doubt, it is entitled under this intended that (1) each installment of the Payments provided in Section 7 9(A) above is conditioned upon and subject a separate “payment” for purposes of Section 409A, (2) all Payments satisfy, to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar yearsgreatest extent possible, the Severance Payment will be paid in exemptions from the second calendar year. Employee’s right application of Section 409A provided under of Treasury Regulation 1.409A-1(b)(4) and 1.409A-1(b)(9)(iii), and (3) the Payments consisting of COBRA premiums also satisfy, to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 greatest extent possible, the exemptions from the application of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7409A provided under Treasury Regulation 1.409A-1(b)(9)(v).
Appears in 3 contracts
Sources: Executive Employment Agreement (Compellent Technologies Inc), Executive Employment Agreement (Compellent Technologies Inc), Executive Employment Agreement (Compellent Technologies Inc)
Severance. (a) If Except as otherwise provided in Section 8, if the Executive’s employment hereunder is terminated during the Employment Term (1) by the Company terminates Employee’s employment with other than for Cause and not due to disability (as determined in the good faith discretion of the Board), death or expiration of the Employment Term following notice by the Company without Cause not to extend the Employment Term in accordance with Section 6(c3, or (2) by the Executive for Good Reason, the Executive shall be entitled to receive as severance (subject to Section 9): (i) an amount equal to the Executive’s base salary as in effect immediately prior to the expiration date of the Initial TermExecutive’s termination of employment for the period of twenty-four (24) months, payable, commencing no later than sixty (60) days following such termination, in equal installments in accordance with the Company’s payroll procedures during the twenty-four (24) month period following the date of the Executive’s termination (such twenty-four (24) month period, the “Severance Period”); (ii) continued medical and dental benefits described in Section 4(c) for the Severance Period, at the same rate of employee and Company shared costs of such coverage as in effect from time to time for active employees of the Company; and (iii) a pro rata portion (based on the number of days the Executive was employed by the Company during the calendar year of termination) of any annual incentive bonus otherwise payable in accordance with Section 4(b)(1) for the year of termination of the Executive’s employment, payable no earlier than the date on which such bonus, if any, would have been paid under the applicable plan or policy of the Company absent such termination of employment, but no later than March 15 of the calendar year immediately following the calendar year of such termination. With respect to any such continued medical and dental benefits described in clause (ii) of the first sentence of this Section 7 for which the Executive is eligible, (I) if the Company cannot continue such benefits, the Company shall pay Employee the Executive for the cost of such benefits; (II) such benefits shall be discontinued in the event the Executive becomes eligible for similar benefits from a severance payment an amount equal successor employer (and the Executive’s eligibility for any such benefits shall be reported by the Executive to twelve months the Company); and (III) the Executive’s period of Employee’s Base Salary as in effect “continuation coverage” for purposes of Section 4980B of the Code shall be deemed to commence on the date of termination, subject to subsections (c) and (d)the Executive’s termination of employment.
(b) If during the Term For purposes of this Agreement there is a CC TerminationAgreement, then except as otherwise provided in Section 8, “Good Reason” shall mean the Employee will be entitled to a severance payment (in addition to occurrence, without the Executive’s consent, of any other rights and other amounts payable to of the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum offollowing events: (i) twelve months of Employeean action by the Company resulting in a material adverse change in the Executive’s Base Salary reporting responsibilities or a material diminution in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and Executive’s duties or direct reports; or (ii) a material breach of any material provision of this Agreement by the EmployeeCompany (which is not in connection with the termination of the Executive’s Average Annual Bonusemployment for Cause or due to the Executive’s Disability); provided, subject to subsections however, that the occurrence of any event described in clause (ci) and or (d).
(cii) Any severance payment payable to Employee pursuant to of this Section 7 7(b) may only constitute Good Reason if the relevant circumstances or conditions are not remedied by the Company within thirty (a “Severance Payment”) will be made in a lump sum within sixty (6030) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit B receipt by the 45th day following Company of written notice thereof from the Employee’s separation from service and not revoking the release within the seven (7) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7Executive.
Appears in 3 contracts
Sources: Employment Agreement (Associated Materials, LLC), Employment Agreement (Associated Materials, LLC), Employment Agreement (Associated Materials, LLC)
Severance. (a) If the Company terminates EmployeeSubject to Section 7(b) below, if Executive’s employment with is terminated prior to the end of the Term by the Company without Cause (other than due to death or Disability), Executive shall be entitled to receive a cash severance payment equal to (i) three months of Executive’s Base Salary at the time of termination, which shall increase to six months of Executive’s Base Salary if such termination occurs after one year from the Effective Date; and (ii) a pro rata portion of the target Annual Bonus for the year in which such termination occurs. Such severance payment shall be made over the three or six month period, as applicable, in accordance with Section 6(c) the Company’s normal payroll policy, provided that prior to the expiration initial payment, the Executive has executed and delivered to the Company, and has not revoked a general release of the Initial TermCompany, its parents, subsidiaries and affiliates and each of its officers, directors, employees, agents, successors and assigns, and such other persons and/or entities as the Company may determine, in a form reasonably acceptable to the Company. Such general release shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect be delivered on or about the date of termination and must be executed within 21 days of termination, subject to subsections (c) and (d).
(b) If during Notwithstanding the Term of this Agreement there is a CC Terminationforegoing, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months any payment(s) of Employee’s Base Salary in effect on date “nonqualified deferred compensation” (within the meaning of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes regulations and official guidance issued thereunder (“Section 409A”)) that is/are required to be made to Executive hereunder as a “specified employee” (as defined under Section 409A) as a result of such employee’s “separation from service” (within the meaning of Section 409A) shall be delayed for the first six (6) months following such separation from service (or, if earlier, the date of death of the specified employee) and shall instead be paid upon expiration of such six (6) month delay period; and (ii) for purposes of any such payment that is subject to Section 409A, if the Executive’s termination of employment triggers the payment of “nonqualified deferred compensation” that is subject hereunder, then the Executive will not be deemed to Section 409A of have terminated employment until the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit B by the 45th day following the Employee’s Executive incurs a “separation from service and not revoking the release service” within the seven (7) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 meaning of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.409A.
Appears in 3 contracts
Sources: Employment Agreement (Bluejay Diagnostics, Inc.), Employment Agreement (Bluejay Diagnostics, Inc.), Employment Agreement (Bluejay Diagnostics, Inc.)
Severance. In the event that Employee is subject to a Change in Control Involuntary Termination, Employee shall be entitled to receive severance benefits as follows: (aA) If a lump sum cash severance payment equal to [one (1) times (if Employee is not the Company terminates Employee’s employment with CEO)] [two (2) times (if Employee is the Company without Cause in accordance with Section 6(cCEO)] the higher of (1) the base salary which Employee was receiving immediately prior to the expiration Change in Control or (2) the base salary which Employee was receiving immediately prior to the Change in Control Involuntary Termination, which payment shall be paid on the sixtieth (60th) day following the Change in Control Involuntary Termination; (B) a lump sum cash payment equal to [one (1) times (if Employee is not the CEO)] [two (2) times (if Employee is the CEO)] Employee’s Target Annual Bonus; and (C) payment by the Company of the Initial Termfull cost of the health insurance benefits provided to Employee and Employee’s spouse and dependents, as applicable, immediately prior to the Change in Control pursuant to the terms of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) or other applicable law through the earlier of the end of the [twelve (12) month (if Employee is not the CEO)] [twenty-four (24) month (if Employee is the CEO)] period following the Change in Control Involuntary Termination date or the date upon which Employee is no longer eligible for such COBRA or other benefits under applicable law. The benefits to be provided under clauses (a)(i) and (a)(ii) shall be paid on the sixtieth (60th) day following Employee’s termination of employment ; except that any payments under clause (a)(ii)(C) shall be paid on a monthly basis commencing on the sixtieth (60th) day following Employee’s termination of employment (subject in all cases to Employee’s release of claims against the Company as set forth in Section 1(a)). Notwithstanding the foregoing, in the event the Board of Directors concludes in its reasonable judgment that the provision of subsidized COBRA benefits to Employee is likely to cause the Company to become subject to excise tax as a result of the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (the “Healthcare Reform Act”), the Company shall pay Employee a severance payment an monthly amount in cash equal to twelve months the 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) for all salary, bonuses and unpaid vacation accrued as of the date of Employee’s Base Salary as in effect on the date termination of termination, subject employment and up to subsections three (c3) months of outplacement services not to exceed $5,000 per month (with a provider and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to program selected by the sum of: Employee. provided Employee commences such services within ninety (i90) twelve months days of Employee’s Base Salary Change in effect on date of such CC Control Involuntary Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (ddate).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 3 contracts
Sources: Management Continuity Agreement (Assertio Therapeutics, Inc), Management Continuity Agreement (Depomed Inc), Management Continuity Agreement (Depomed Inc)
Severance. (a) If the Company terminates Employee’s employment with is terminated by the Company without Cause or by Employee for Good Reason within twenty-four (24) months following a Change in accordance Control, then subject to the requirements of this Section 2 and Employee’s continued compliance with Section 6(c) prior 3, Employee shall be entitled to the expiration receive, in lieu of the Initial Termany severance benefits to which Employee may otherwise be entitled, including under any Other Arrangement (as defined below), the benefits provided below:
(i) The Company shall pay to Employee a severance payment an amount equal to twelve months (A) his or her fully earned but unpaid base salary, when due, through the date of Employee’s Base Salary as termination at the rate then in effect on effect, (B) his or her accrued but unpaid vacation or paid time off through the date of termination, subject when due, plus (C) all other amounts or benefits to subsections which Employee is entitled under any compensation, retirement or benefit plan or practice of the Company at the time of termination in accordance with the terms of such plans or practices, including, without limitation, any continuation of benefits required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (c“COBRA”) and or applicable law (dthe “Accrued Obligations”).;
(bii) If during the Term of this Agreement there is a CC Termination, then the Employee will shall be entitled to a receive 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 pay in an amount equal to the sum of: :
(iA) An amount equal to twelve (12) months of Employee’s Base Salary monthly base salary as in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on immediately prior to the date of such CC Termination)termination, and plus
(iiB) An amount equal to the greater of (1) Employee’s Average Annual Bonusmaximum target bonus for the fiscal year during which the date of termination occurs or (2) Employee’s maximum target bonus for the fiscal year during which the Change in Control occurs, subject to subsections payable, in the case of both clauses (cA) and (dB).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made , in a lump sum within sixty ten (6010) days after following the effective date of Employee’s Release, but in no event later than two and one-half (2 ½) months following the last day of the calendar year in which the date of Employee’s termination of employment is terminated giving rise occurs;
(iii) Employee shall be entitled to such Severance Payment receive a lump sum cash payment equal to (A) twelve (12) multiplied by (B) the monthly premium Employee would be required to pay for continuation coverage pursuant to Section 7(aCOBRA for Employee and his or her eligible dependents who were covered under the Company’s health plans as of the date of Employee’s termination such that Employee’s premiums are the same as for active employees (calculated by reference to the premium as of the date of termination) or (b); provided that Employee executes shall be solely responsible for all matters relating to his or her continuation of coverage pursuant to COBRA, including, without limitation, his or her election of such coverage and delivers his or her timely payment of premiums), which payment shall be paid within ten (10) days following the release contemplated effective date of Employee’s Release, but in no event later than two and one-half (2 ½) months following the last day of the calendar year in which the date of Employee’s termination of employment occurs; and
(iv) The vesting and/or exercisability of any outstanding unvested portions of Employee’s Stock Awards the vesting of which is solely time-based and not subject to the satisfaction of a performance condition shall be automatically accelerated on the effective date of Employee’s Release. In addition, Employee’s Stock Awards may be exercised by Section 7(dEmployee (or Employee’s guardian or legal representative) and until (A) the date that is nine (9) months following the date of termination, or (B) such release becomes effective and irrevocable. If such sixty (60) day longer period spans two calendar years, the Severance Payment will as may be made specified in the second calendar year. Howeverapplicable stock award agreement; provided, if Employee is a “specified employee” as defined however, that in regulations under Section 409A no event shall any Stock Award remain exercisable beyond the original outside expiration date of such Stock Award; provided, however, that, any Stock Awards that vest in whole or in part based on the attainment of performance-vesting conditions shall be governed by the terms of the Code applicable Stock Award agreement. Employee’s vested Stock Awards shall be governed by the terms and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A conditions of the Code, the Severance Payment will be made on Stock Award agreements and the Company’s first payroll payment date that is more than six (6) months equity plan under which such Stock Awards were granted. Notwithstanding the Severance Payment is otherwise payable foregoing, in the event the Stock Award agreement or the equity plan pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Stock Awards were granted provides for more favorable treatment of Employee’s executing and delivering the general release of claims Stock Awards, nothing in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. this Agreement is intended to limit Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations such more favorable treatment as provided in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7such Stock Award agreement or equity plan.
Appears in 3 contracts
Sources: Change in Control Severance Agreement (OmniAb, Inc.), Change in Control Severance Agreement (OmniAb, Inc.), Change in Control Severance Agreement (OmniAb, Inc.)
Severance. (a) If the Company terminates Employee’s employment with the Company without Cause in accordance with Section 6(c) prior to the expiration of the Initial Term, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) ), (d), and (de).
(b) If during the Term of this Agreement there is a CC TerminationTermination 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 to the sum of: (i) twelve months of the Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c), (d) and (de).
(c) Any Subject to Section 7(c), any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 3 contracts
Sources: Employment Agreement (Hempacco Co., Inc.), Employment Agreement (Hempacco Co., Inc.), Employment Agreement (Viking Energy Group, Inc.)
Severance. (ai) If Except as provided in Section 5.6(k)(iii), Seller shall be solely responsible for any severance benefits payable under applicable Law, Collective Bargaining Agreement or under Seller’s severance policies set forth on Section 5.6(k)(i) of the Company terminates Seller Disclosure Letter to any Business Employee who does not transfer employment to Purchaser or its Subsidiaries or the applicable PEO for any reason.
(ii) Seller shall reimburse Purchaser for any severance benefits payable by Purchaser and its affiliates under applicable Law, Collective Bargaining Agreement or under Seller’s severance policies set forth on Section 5.6(k)(ii) of the Seller Disclosure Letter to any Business Employee (other than an Offer Employee) who transfers employment to Purchaser or one of its affiliates or the applicable PEO by operation of any Transfer Regulations or other applicable Laws and whose employment is terminated by Purchaser or its affiliate within ninety (90) days following the Closing Date (it being understood that, if applicable Law or any Benefit Plan or contract with the employee requires notice, such Business Employee’s employment with shall be deemed terminated within ninety (90) days following the Company without Cause in accordance with Section 6(cClosing Date if such individual receives notice of termination within ninety (90) prior to days following the expiration of the Initial Term, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect Closing Date and terminates employment on the earliest possible date of termination, subject to subsections (c) and (dpermitted by such notice requirement).
(biii) If during Purchaser will reimburse Seller for any severance benefits payable by Seller and its affiliates under applicable Law or under Seller’s severance policies set forth on Section 5.6(k)(iii) of the Term Seller Disclosure Letter arising from (x) Purchaser’s or its affiliate’s failure to make an offer of this Agreement there employment to, or accept or continue the employment of, any Pre-Selected Employee (whether or not such Pre-Selected Employee is an Offer Employee, and including as a CC Terminationresult of a Pre-Selected Employee who accepts Purchaser’s offer of employment but who fails to satisfy Purchaser’s ordinary course hiring criteria), then the Employee will be entitled (y) from Purchaser’s failure to a severance payment (in addition make an offer of employment to any other rights and other amounts payable to the Pre-Selected Employee under Company plans in which (whether or not such Pre-Selected Employee is an Offer Employee) that complies with Section 5.6(f) (each of the Pre-Selected Employees covered by clause (x) or clause (y), a participant, but without duplication for “Section 5.6(k)(iii) Pre-Selected Employee”) or (z) Purchaser’s election to cause the applicable PEO to make an offer of employment to any amounts due to Offer Employee pursuant to as contemplated by Section 7(a5.6(f)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greateras a result thereof any Pre-Selected Employee who but-for such election would have transferred employment to Purchaser or one of its Subsidiaries pursuant Section 5.6(e) does not transfer employment to Purchaser or its Subsidiaries or affiliates or the applicable PEO; provided that, the highest Base Salary in effect during the three year period ending on the date with respect to each of such CC Terminationclauses (x), and (ii) the Employee’s Average Annual Bonus, subject to subsections (cy) and (dz), Seller or its affiliate must terminate the employment of such individual within ninety (90) days following the Closing Date to be eligible for reimbursement (it being understood that a termination of employment shall be deemed to have occurred within ninety (90) days following the Closing Date (A) if applicable Law or any Benefit Plan or contract with the employee requires notice, and such Pre-Selected Employee receives notice of termination within ninety (90) days following the Closing Date and terminates employment on the earliest possible date permitted by such notice requirement and (B) if such Pre-Selected Employee is retained by Seller and its affiliates to provide services to Purchaser under the Transition Services Agreement and is terminated within ninety (90) days following the end of the applicable transition period (or such longer notice period required by applicable Law or contract with the employee)).
(civ) Any If any Transferred Business Employee is entitled to receive severance payment or similar payments under applicable Law or any applicable Collective Bargaining Agreement upon the termination of his or her employment with Seller (irrespective of his or her continued employment with Purchaser or one of its affiliates or the applicable PEO), Purchaser and Seller shall, and Purchaser shall use its reasonable best efforts to cause the applicable PEO to, cooperate in good faith to minimize the amount of any severance payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release including as contemplated by Section 7(d5.6(k)(iv) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this AgreementSeller Disclosure Letter).
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Broadcom Inc.), Asset Purchase Agreement (Symantec Corp)
Severance. (a) If Subject to the limitations set forth in Section 13, if the Employee's employment is terminated by the Subsidiary without Substantial Cause (including, without limitation, upon termination of this Agreement following notice thereof by the Company terminates Employee’s employment or the Subsidiary pursuant to Section 3 hereof) or by the Employee for Good Reason, then, without further liability of the Subsidiary or the Company, except for their obligations pursuant to this Section 10(a) and their obligations to pay or provide any salary and expenses accrued to the termination date, any unpaid bonus referred to in Section 4(b) hereof, any Closing Bonus (whether payable before or after such termination of employment) pursuant to Section 4(c) hereof, and such rights and benefits of participation of or in respect of the Employee under employee benefit plans, programs and arrangements of the Company, the Subsidiary and their Affiliates, in accordance with the Company without Cause terms and provisions of such plans, programs and arrangements, (i) the Employee shall be entitled to severance compensation for the Severance Period (as hereinafter defined) following any such termination, payable in equal monthly installments, subject to withholding and other applicable taxes, at an annual rate equal to the Employee's base salary for the year of termination, as such annual rate is increased from year to year in accordance with Section 6(c4(a) hereof; (ii) as additional severance compensation following any such termination, the Employee shall be entitled to the bonus compensation referred to in Section 4(b) hereof for the Severance Period, payable as and when ordinarily determined for the applicable year, with a bonus not less than seventy-five percent (75%) of his rate of annual base salary in effect for the year of termination; (iii) the Employee and the Employee's spouse and Dependent Children (as hereinafter defined) shall be entitled to medical and dental benefits as provided immediately prior to the expiration of the Initial Term, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d).
(b) If during termination which shall continue for the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.Severance
Appears in 3 contracts
Sources: Employment Agreement (Statia Terminals Group Nv), Employment Agreement (Statia Terminals Group Nv), Employment Agreement (Statia Terminals Group Nv)
Severance. (a) If In the event of an Involuntary Termination, and provided you comply with all the conditions specified below, you will receive the following severance benefits from the Company:
(i) The Company terminates Employee’s employment with the Company without Cause in accordance with Section 6(c) prior to the expiration of the Initial Term, the Company shall will pay Employee a you cash severance payment an amount equal to twelve (12) months of Employee’s your Base Salary as Salary, in effect on the equal installments, less applicable payroll deductions and required withholdings, over a period of twelve (12) months following your date of termination, subject on the Company’s regularly scheduled payroll dates, commencing with the first such date that occurs on or after the Release (defined below) becomes effective and irrevocable;
(ii) You will receive a pro-rated amount of your Annual Bonus based on the number of days you are employed during the calendar year in which your termination occurs, to subsections be paid in a lump-sum, less applicable payroll deductions and required withholdings, within thirty (c30) days after the Release (defined below) becomes effective and irrevocable; and
(diii) If you timely elect to continue your health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the Company will reimburse you for the full amount of the monthly premium for such coverage from the first date you lose health coverage as an employee of the Company until the earliest of (i) the date the Company has paid your premiums for COBRA coverage for a total of twelve (12) months, (ii) the expiration of your continuation coverage eligibility under COBRA, or (iii) the date when you become eligible to receive substantially equivalent health insurance coverage from another employer. Any COBRA reimbursements will be treated as taxable income to you.
(b) If during Your receipt of any of the Term of this Agreement there above severance benefits from the Company is a CC Termination, then the Employee will be entitled subject to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum ofconditioned on you: (i) twelve months signing and not revoking a comprehensive release of Employee’s Base Salary claims against the Company and any of its affiliates or related parties or persons, in effect on date of such CC Termination a form acceptable to the Company (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination“Release”), and ; (ii) promptly returning all Company information and property in your possession, as provided in the Employee’s Average Annual Bonus, subject to subsections ECIIA; (ciii) immediately and irrevocably resigning as a member of the Board and any other corporate offices then held with the Company or any of its affiliates; and (d).
(civ) Any continuing to fully comply with, and not violating, any provisions of the Release and your ECIIA. In no event will any severance payment payable benefits be paid or provided to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after you until the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release Release becomes effective and irrevocable. If such sixty (60) day period spans two calendar yearsyou at any time breach any of the above conditions, or any continuing obligations to the Severance Payment Company imposed by law or contract, all remaining severance payments and benefits will immediately cease and you will be made responsible for promptly repaying the Company for any severance payments or benefits previously provided to you.
(c) You will not be entitled to any other payments or severance benefits, except as provided in this Agreement, in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A event of any Involuntary Termination or other termination of your employment with the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A Company of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreementany kind.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar yearsAs used herein, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 following definitions shall apply for all clauses of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.contract and related exhibits:
Appears in 3 contracts
Sources: Employment Agreement (Movano Inc.), Employment Agreement (Movano Inc.), Employment Agreement (Movano Inc.)
Severance. (a) If Subject to the limitations set forth in Section 13, if the Employee's employment is terminated by the Subsidiary without Substantial Cause (including, without limitation, upon termination of this Agreement following notice thereof by the Company terminates Employee’s employment or the Subsidiary pursuant to Section 3 hereof) or by the Employee for Good Reason, then, without further liability of the Subsidiary or the Company, except for their obligations pursuant to this Section 10(a) and their obligations to pay or provide any salary and expenses accrued to the termination date, any unpaid bonus referred to in Section 4(b) hereof, any Closing Bonus (whether payable before or after such termination of employment) pursuant to Section 4(c) hereof, and such rights and benefits of participation of or in respect of the Employee under employee benefit plans, programs and arrangements of the Company, the Subsidiary and their Affiliates, in accordance with the Company without Cause terms and provisions of such plans, programs and arrangements, (i) the Employee shall be entitled to severance compensation for the Severance Period (as hereinafter defined) following any such termination, payable in equal monthly installments, subject to withholding and other applicable taxes, at an annual rate equal to the Employee's base salary for the year of termination, as such annual rate is increased from year to year in accordance with Section 6(c4(a) hereof; (ii) as additional severance compensation following any such termination, the Employee shall be entitled to the bonus compensation referred to in Section 4(b) hereof for the Severance Period, payable as and when ordinarily determined for the applicable year, with a bonus not less than seventy-five percent (75%) of his rate of annual base salary in effect for the year of termination; (iii) the Employee and the Employee's spouse and Dependent Children (as hereinafter defined) shall be entitled to medical and dental benefits as provided immediately prior to the expiration date of termination which shall continue for the Severance Period (which benefits shall be terminated sooner to the extent provided by another employer and shall be subject to coordination with Medicare payments in accordance with the terms of the Initial Term, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections applicable benefit plan); (civ) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will shall be entitled to a severance payment (receive, during the Severance Period, the benefits described in addition to any other Section 4(d) hereof and the automobile rights and other amounts payable to the Employee under Company plans perquisites described in which Employee is a participantSection 4(e) hereof, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (orPROVIDED, HOWEVER, if greater, the highest Base Salary in effect during the three year period ending on the date of any such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject benefit is not available to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.the
Appears in 3 contracts
Sources: Employment Agreement (Statia Terminals Group Nv), Employment Agreement (Statia Terminals Group Nv), Employment Agreement (Statia Terminals Group Nv)
Severance. If, during the Term, other than within twelve (12) months following a Change in Control, the Executive experiences a Termination of Employment, either (a) If by the Company terminates Employee’s employment with the Company Employer without Cause in accordance with pursuant to Section 6(c) prior to the expiration of the Initial Term, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d4.1(a)(2).
; or (b) If during by the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication Executive for any amounts due to Employee Good Reason pursuant to Section 7(a4.1(b)(2), then, upon his Termination of Employment, the Employer will pay in lieu of any severance payment applicable under any general severance policy (which Executive acknowledges he is not eligible for due to this Agreement) payable in a lump sum in cash severance to the Executive in an amount equal to the sum of: one (i1) twelve months of Employee’s times his Annual Base Salary then in effect on date (the “Severance Pay”), with such amount payable in substantially equal cash installments not less frequently than monthly over the twelve-month period following Executive’s Termination of such CC Termination Employment (orthe “Severance Payment Period”). So long as the Executive complies with the requirements of Sections 5.2, if greater5.3, 6, 7 and 8 of this Agreement, the highest Base Salary in effect during the three year period ending Severance Pay shall commence on the date of such CC Termination), and first payroll period (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Initial Payment”) will be made in a lump sum within sixty (60) days occurring on or after the date Employee60th day following the Executive’s employment is terminated giving rise to such Termination of Employment (the “Severance Delay Period”). The Initial Payment pursuant to Section 7(a) or (b); provided that Employee executes shall include payment for any payroll periods which occur during the Severance Delay Period and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, remaining Severance Pay shall continue until the expiration of the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and Period subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 provisions of this Agreement. If Employee breaches the Executive shall be entitled to receive Severance Pay pursuant to this Section 4.2, then, in addition to any of his obligations in Sections 8-11 of this Agreement, he will immediately return Severance Pay payable to the Company any portion of the Severance Payment that has been paid to him Executive pursuant to this Section 7.4.2, the Employer shall, until such time as the Executive is eligible for Medicare, or some similar health care coverage provided by state or federal governments, or eligible to participate in or be covered by the health plans of any employer other than the Employer, pay on the Executive’s behalf, or reimburse the Executive, for the cost of COBRA premiums incurred by the Executive for his individual health coverage for the twelve (12) months following Termination of Employment (with any additional amounts incurred to procure family coverage being the sole responsibility of the
Appears in 3 contracts
Sources: Employment Agreement (Community First Inc), Employment Agreement (Community First Inc), Employment Agreement (Community First Inc)
Severance. (a) If the Company terminates EmployeeSubject to Section 6(b) below, if Executive’s employment with is terminated prior to the end of the Term by the Company without Cause in accordance with Section 6(c) prior or by Executive for Good Reason, Executive shall be entitled to the expiration of the Initial Term, the Company shall pay Employee receive a severance payment an amount equal to twelve (i) 12 months of Employee’s Executive's Base Salary Salary, and (ii) 75% of the target Annual Bonus for the compensation year in which such termination occurs. Such severance payment shall be paid in 12 equal monthly payments commencing with the first payroll following such termination, provided the Executive has executed and delivered to the Company, and has not revoked a general release of the Company, its parents, subsidiaries and affiliates and each of its officers, directors, employees, agents, successors and assigns, and such other persons and/or entities as the Company may determine, in effect a form reasonably acceptable to the Company. Such general release shall be delivered on or about the date of termination and must be executed within fifty-five (55) days of termination, subject to subsections (c) and (d).
(b) If during Executive’s employment is terminated prior to the end of the Term of this Agreement there is by the Company without Cause or by Executive for Good Reason, and such termination occurs within six (6) months prior to a CC TerminationChange in Control or within twelve (12) months after the Change in Control, then the Employee will Executive shall be entitled to a severance payment (receive, 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 severance pursuant to Section 7(a)6(a) payable in a lump sum in cash in above, an amount equal to the sum of: (i) twelve additional 12 months of EmployeeExecutive’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)Salary, and (ii) an additional 25% of the Employee’s Average target Annual Bonus, subject to subsections (c) and (d)bonus.
(c) Any severance payment payable to Employee pursuant to this Section 7 Notwithstanding the foregoing, (a i) any payment(s) of “Severance Payment”) will be made in a lump sum nonqualified deferred compensation” (within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (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 meaning of Section 409A of the Code and the Severance Payment constitutes regulations and official guidance issued thereunder (“Section 409A”)) that is/are required to be made to Executive hereunder as a “specified employee” (as defined under Section 409A) as a result of such employee’s “separation from service” (within the meaning of Section 409A) shall be delayed for the first six (6) months following such separation from service (or, if earlier, the date of death of the specified employee) and shall instead be paid upon expiration of such six (6) month delay period; and (ii) for purposes of any such payment that is subject to Section 409A, if the Executive’s termination of employment triggers the payment of “nonqualified deferred compensation” that is subject hereunder, then the Executive will not be deemed to have terminated employment until the Executive incurs a “separation from service” within the meaning of Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.409A.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee If Executive's employment is entitled under this Section 7 is conditioned upon and subject terminated prior to the Employee’s executing end of the Term by the Company without Cause or by Executive for Good Reason, and delivering the general release of claims if Executive is eligible for and elects to continue to participate in the form attached hereto as Exhibit B by the 45th day following the EmployeeCompany’s separation from service medical and not revoking the release within the seven (7) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar yearsdental benefit programs pursuant to COBRA, the Severance Payment Company will be paid in continue to pay the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any same portion of Executive's medical and dental insurance premiums under COBRA as during active employment (for Executive and eligible spouse and dependents) until the Severance Payment that has been paid to him pursuant to Section 7earlier of: (1) 12 months from Executive's cessation from employment; or (2) the date Executive is eligible for medical and/or dental insurance benefits from another employer.
Appears in 3 contracts
Sources: Employment Agreement (Moleculin Biotech, Inc.), Employment Agreement (Moleculin Biotech, Inc.), Employment Agreement (Moleculin Biotech, Inc.)
Severance. (a) If the Company terminates Employee’s Subject to Section 6(b) below, if Executive's employment with is terminated by the Company without Cause in accordance with Section 6(c) prior or by Executive for Good Reason, Executive shall be entitled to the expiration of the Initial Term, the Company shall pay Employee receive a severance payment an amount equal to twelve 24 months of Employee’s Executive's Base Salary Salary, payable in a lump sum, but only if Execute first executes, and then does not revoke as may be allowed by law, a separation and release agreement in effect on a form chose by the date of termination, subject to subsections (c) and (d)Company in its sole discretion.
(b) If during Executive's employment is terminated by the Term of this Agreement there is Company without Cause or by Executive for Good Reason, and such termination occurs within six (6) months prior to a CC TerminationChange in Control (as defined under the Plan) or within twelve (12) months after the Change in Control, then the Employee will Executive shall be entitled to a severance payment (receive, 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 severance pursuant to Section 7(a6(a) above, an additional 6 months of Executive's Base Salary (for a total of 30 months) in addition to the compensation of Section 2(d)) payable , but only if Execute first executes, and then does not revoke as may be allowed by law, a separation and release agreement in a lump sum form chose by the Company in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d)its sole discretion.
(c) Any severance payment payable to Employee pursuant to this Section 7 Notwithstanding the foregoing, (a “Severance Payment”i) will be made in a lump sum any payment(s) of "nonqualified deferred compensation" (within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (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 meaning of Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” regulations and official guidance issued thereunder ("Section 409A")) that is/are required to be made to Executive hereunder as a "specified employee" (as defined under Section 409A) as a result of such employee's "separation from service" (within the meaning of Section 409A) shall be delayed for the first six (6) months following such separation from service (or, if earlier, the date of death of the specified employee) and shall instead be paid upon expiration of such six (6) month delay period; and (ii) for purposes of any such payment that is subject to Section 409A 409A, if the Executive's termination of employment triggers the Codepayment of "nonqualified deferred compensation" hereunder, then the Severance Payment Executive will not be made on deemed to have terminated employment until the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit B by the 45th day following the Employee’s Executive incurs a "separation from service and not revoking the release service" within the seven (7) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 meaning of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.409A.
Appears in 3 contracts
Sources: Employment Agreement (Flora Growth Corp.), Employment Agreement (Flora Growth Corp.), Employment Agreement (Flora Growth Corp.)
Severance. (a) If the Executive's employment hereunder is terminated during the Employment Term (1) by the Company other than for Cause and not due to disability (as determined in good faith and consistent with the Company's long term disability policy) or death, (2) by the Executive for Good Reason (as defined in paragraph (b) of this Section 7), or (3) upon non-renewal by the Company, the Executive shall be entitled to receive as severance, and the Company shall pay, an amount equal to two (2) times the sum of (x) the Executive's then current annual salary and (y) the greater of (i) the Executive's most recent annual incentive bonuses and (ii) the arithmetic mean of the Executive's annual incentive bonuses for the two (2) most recent years, payable in a lump sum on the eighth day after the date the Executive signs the release referenced below in favor of the Company and its subsidiaries. In addition, in the event that the Executive's employment is terminated other than for Cause or death, or in the event that the Executive terminates Employee’s his employment for Good Reason, as defined herein, the Executive shall be entitled to continued healthcare coverage equivalent to the coverage received while employed by the Company, for a period of one (1) year from the date of termination or until the Executive receives coverage from a subsequent employer, whichever event occurs sooner; provided, however, that, thereafter, he shall be entitled to elect to continue his health benefits pursuant to Section 4980B of the Internal Revenue Code of 1986, as amended ("COBRA"). If the Executive's employment is terminated otherwise than as described in this Section 7, the Executive shall not be entitled to any severance, termination pay or similar compensation or benefits. As a condition of receiving any severance for which he otherwise qualifies under this Section 7, the Executive agrees to execute, deliver and not revoke (within the time period permitted by applicable law) a general release of the Company and its subsidiaries and affiliates and their respective officers, directors, employees and owners from any and all claims, obligations and liabilities of any kind whatsoever arising from or in connection with the Executive's employment or termination of employment with the Company or this Agreement (including, without Cause limitation, civil rights claims), in accordance with such form as is attached hereto as Exhibit A. The Executive acknowledges and agrees that, except as specifically described in this Section 6(c) prior to the expiration 7, all of the Initial Term, the Company shall pay Employee a severance payment an amount equal Executive's rights to twelve months of Employee’s Base Salary as in effect on any compensation (other than base salary earned through the date of termination of employment), benefits, bonuses or severance from the Company or its subsidiaries or affiliates after termination of the Employment Term shall cease upon such termination, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 For purposes of this Agreement, he will immediately return "Good Reason" shall mean the occurrence, without the Executive's consent, of any of the following events (without the Executive's express written consent): (i) a reduction by the Company in the Executive's base salary stated in Section 4(a) or a reduction in the target bonus stated in Section 4(c), (ii) a diminution in the Executive's duties with respect to the Company, or (iii) any material breach of this Agreement by the Company. For the avoidance of doubt, termination by the Executive for Good Reason is conditioned on the Executive's delivery of a written notice of resignation delivered to the Company any portion not less than thirty (30) days prior to the effective date of the Severance Payment that has been paid to him pursuant to such resignation, as set forth in Section 76.
Appears in 3 contracts
Sources: Employment Agreement (Friedmans Inc), Employment Agreement (Friedmans Inc), Employment Agreement (Friedmans Inc)
Severance. (a) If the Executive terminates this Agreement and his employment with the Company terminates Employeefor Good Reason or if the Executive’s employment with the Company without Cause in accordance with Section 6(c) prior is terminated by the Company for any reason other than for Cause, including non-renewal of this Agreement by the Company (but not including any circumstances that would give rise to a payment to the expiration of the Initial TermExecutive pursuant to Section 3.3(a) hereof), the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary the Executive as in effect on the date of termination, subject to subsections (c) and (d).follows:
(bi) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash pay in an amount equal to 1.0 times the sum 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 termination) until the earlier of: (iA) the expiration of a period of twelve (12) months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on from the date of such CC Termination), and termination or (iiB) the Employee’s Average Annual Bonus, subject to subsections 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 (ci) and (d).
(ciii) Any severance payment payable to Employee pursuant to this Section 7 (a hereof are defined as the “Severance Payment”) will be made in Indemnity.” The Executive’s receipt of the foregoing Severance Indemnity is conditioned upon his execution and delivery to the Company of a lump sum 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 causing revocation of same, within sixty (60) days following the date of termination of the Executive’s employment. Any Severance Indemnity payments that the Executive would otherwise be entitled to receive prior to the time the aforementioned release becomes effective and irrevocable shall be accumulated and paid in a lump sum after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If ; 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, any payments that the Executive is entitled to receive during such sixty (60) day period spans two calendar years, the Severance Payment will shall be made accumulated and paid in a lump sum only in the second subsequent calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 3 contracts
Sources: Employment Agreement (Avadel Pharmaceuticals PLC), Employment Agreement (Avadel Pharmaceuticals PLC), Employment Agreement (Avadel Pharmaceuticals PLC)
Severance. (a) If the Company terminates (i) Employee’s 's employment with is terminated by the Company without Cause "cause,"
(ii) the Company does not agree to extend the Employment Term upon the expiration thereof, (iii) Employee terminates his employment because the Company reduces his responsibilities or compensation in accordance with a manner which is tantamount to termination of Employee's employment, or (iv) within two years following a Sale of the Company (as defined in Section 6(c) prior 9 of this Agreement), the Employee gives notice to the expiration Company of his resignation for "Good Reason" (as defined in Section 8(b) hereof) setting forth in reasonable detail the Initial Termcircumstances claimed to constitute Good Reason and stating that it constitutes notice pursuant to this Section 8(a), and the stated basis for Good Reason has not been fully corrected within sixty (60) days from the date of such notice, the Company Employee shall pay Employee a severance payment be entitled to (x) receive an amount equal to twelve months his total cash compensation (base salary plus bonus, excluding, however, any Change in Control Bonus paid pursuant to Section 9 hereof) for the year preceding the date of the Employee’s Base Salary 's termination or the date on which the Employment Term expires, as the case may be, such amount to be payable in effect a lump sum on the date of termination or the date on which the Employment Term expires, as the case may be, and (y) continue to receive the benefits referred to in Section 4(c) during the one year period following the date of termination or expiration (the "Severance Period"); provided, however, if any such event occurs prior to the extension of the initial Employment Term, the Employee shall be entitled to (A) an amount equal to his then current salary, payable in a lump sum on the date of termination, subject (B) an amount equal to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Terminationhis target annual bonus, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination)termination, and (iiC) continue to receive the benefits referred to in Section 4(c) during the Severance Period. If the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s 's employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers by the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar yearsCompany "for cause", the Severance Payment Employee shall not be entitled to severance compensation. The Employee covenants and agrees that he will not, during the one year period following the termination of the Employee's employment by the Company, within any jurisdiction or marketing area in which the Company or any of its Affiliates (as defined below) is doing business or is qualified to do business, directly or indirectly own, manage, operate, control, be made employed by or participate in the second calendar year. Howeverownership, if Employee is a “specified employee” as defined management, operation or control of, or be connected in regulations under Section 409A any manner with, any business of the Code type and the Severance Payment constitutes “nonqualified deferred compensation” character engaged in and competitive with that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit B conducted 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches Company or any of his obligations in Sections 8-11 its Affiliates at the time of such termination; provided, however, that ownership of securities of 2% or less of any class of securities of a public company shall not be considered to be competition with the Company or any of its Affiliates. For the purposes of this Agreement, he will immediately return the term "Affiliate" shall mean, with respect to the Company Company, any portion person or entity which, directly or indirectly, owns or is owned by, or is under common ownership with, the Company. The term "own" (including, with correlative meanings, "owned by" and "under common ownership with") shall mean the ownership of 50% or more of the Severance Payment that has been paid to him pursuant to Section 7voting securities (or their equivalent) of a particular entity.
Appears in 3 contracts
Sources: Employment Agreement (North Shore Agency Inc), Employment Agreement (North Shore Agency Inc), Employment Agreement (North Shore Agency Inc)
Severance. (a) If 6.1 In the event of a termination of the Executive’s employment by the Company terminates Employee’s employment with for Cause, by the Company Executive without Cause in accordance with Section 6(c) prior Good Reason, due to the expiration of the Initial Term or as a result of the Executive’s death, the Executive shall be entitled to (i) his Base Salary earned but unpaid through and including the date of the termination of his employment, (ii) any unpaid bonus that is earned and accrued for any completed Fiscal Year, and (iii) any benefits or payments to which the Executive is entitled under any Company plan, program, agreement, or policy (collectively, “Accrued Amounts”).
6.2 In the event the Executive’s employment is terminated as a result of a Change in Control (as defined below) as determined by the Board in its sole discretion, by the Company without Cause (which does not include termination due to expiration of the Term) or by the Executive for Good Reason during the Term, the Executive shall be entitled to the Accrued Amounts and, subject to the Executive’s signing, returning to the Company and not revoking a release of claims for the benefit of the Company, in the form provided by the Company (the “Release”), the Executive shall be entitled to receive, and the Company shall be obligated to provide, the following severance benefits; provided, that, if the Executive should fail to execute such Release within 45 days following the later of (i) the Executive’s date of termination or (ii) the date the Executive actually receives an execution copy of such Release (which shall be delivered to the Executive within five (5) calendar days following the Executive’s termination date), the Company shall pay Employee a not have any obligations to provide the severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d).payments contemplated under this Section 6.2:
(ba) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable Payment 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 Executive of an amount equal to the sum of: lesser of (i) twelve months of Employee’s 2.99 times the Base Salary in effect on date the year of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and termination or (ii) the Employee’s Average Annual Bonusamount of Base Salary owed to the Executive for the remainder of the Term, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after following the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or termination date;
(b)) Payment to the Executive of an amount equal to one hundred percent (100%) of the Bonus opportunity actually earned for the year prior to the year of termination, if any; provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such this amount shall be paid in a lump sum within sixty (60) days following the termination date;
(c) The same level of health (i.e. medical, vision and dental) coverage and benefits as in effect for the Executive on the day period spans two calendar yearsimmediately preceding the day of termination of employment; provided, however that (i) the Severance Payment will be made in the second calendar year. HoweverExecutive constitutes a qualified beneficiary, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A 4980B(g)(1) of the Code; and (ii) the Executive elects continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), within the Severance Payment will be made on time period prescribed pursuant to COBRA. The Company shall continue to provide the Company’s first payroll payment Executive with such health coverage until the earlier of (A) the date that the Executive is more than six no longer eligible to receive continuation coverage pursuant to COBRA, or (6B) twelve (12) months from the Severance Payment is otherwise payable pursuant to this Agreement.termination date; and
(d) Employee acknowledges and agrees The vesting of the Severance Payment Option will accelerate on the date of termination as to which that number of shares that would have become vested if the Employee is Executive had remained employed by the Company until the date twelve (12) months following the termination date. For avoidance of doubt, the Executive shall not be entitled under to any severance benefits pursuant to this Section 7 6.2 if his employment is conditioned upon and subject terminated by the Company for Cause, by the Executive without Good Reason or due to the EmployeeExecutive’s executing and delivering death or the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion expiration of the Severance Payment that has been paid to him pursuant to Section 7Term.
Appears in 2 contracts
Sources: Employment Agreement (FriendFinder Networks Inc.), Employment Agreement (FriendFinder Networks Inc.)
Severance. (a) If the Company terminates Employee’s employment with the Company without Cause in accordance with Section 6(c) If, prior to the expiration of this Agreement, the Initial TermCompany breaches this Agreement by terminating the Executive's employment for any reason other than Cause (a "Breach"), or during the two year period next following a "Change in Control" (as herein defined) the Executive's employment with the Company is terminated for reasons other than death, disability or Cause ("Termination Upon Change in Control"), in lieu of additional salary payments to the Executive for periods subsequent to the date of such termination, the Company shall pay Employee a lump sum severance payment (together with the payments provided in paragraph (c) below, the "Severance Payments") to the Executive at the time of termination. Such payment shall be an amount equal to twelve months the number of Employee’s years, including fractional years, remaining until this Agreement would expire but for such termination (in any event however, the period shall be not less than two years nor more than the number of years, including the fractional years, from the date of such termination until the Executive's attainment of age 65) multiplied by the sum of
(A) the Executive's Base Salary rate as in effect on as of the date of termination, subject to subsections (c) termination and (d)B) the average of the bonus amounts awarded or due to the Executive pursuant to Section 3.2 of this Agreement. Payment of Severance Payments provided under this Section 7 in the event of a termination which constitutes a Breach by the Company will not prohibit Executive from seeking enforcement of the remaining provisions of this Agreement or other remedies for breach of this Agreement.
(b) If during In determining the Term amount of this Agreement there is a CC Termination, then payments due under any incentive plan or other bonus plan in effect for 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 year in which Employee the Executive is terminated as a participantresult of a Breach or Termination Upon Change in Control, but without duplication the Company shall pay the Executive at the time of termination a pro-rata portion of all contingent awards granted under such plans for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an all uncompleted periods, assuming for this purpose that the amount equal to of each award that would have been paid upon the sum of: (i) twelve months of Employee’s Base Salary in effect on date completion of such CC Termination (orperiod would at least equal the pro rata amount of the greater of the target or maximum bonus, if greaterany, the highest Base Salary provided for in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d)plan.
(c) Any severance payment payable The Company shall pay the Executive all reasonable legal fees and expenses incurred by the Executive as a result of such termination (including all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to Employee pursuant obtain or enforce any right or benefit provided by this Agreement), unless the decision-maker in any proceeding, contest or dispute arising hereunder makes a formal finding that the Executive did not have a reasonable basis for instituting such proceeding, contest or dispute, in which event the Executive shall pay to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes Company its reasonable legal fees and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made expenses incurred in the second calendar year. Howeverdefense of such proceeding, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreementcontest or dispute.
(d) Employee acknowledges For the length of the period for which severance benefits are provided after any termination pursuant to this Section 7, the Company shall arrange to provide the Executive with life, disability, accident and agrees group health insurance benefits substantially similar to those which the Severance Payment Executive was receiving immediately prior to the notice of termination. Benefits otherwise receivable by the Executive pursuant to this paragraph (d) shall be reduced to the extent comparable benefits are actually received by the Executive during the period following the Executive's termination, and any such benefits actually received by the Executive shall be reported to the Company.
(e) Nothing contained in this Section 7 shall prevent the Executive from receiving any and all benefits payable under any severance benefit plan or program maintained by the Company to which the Employee Executive is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7entitled.
Appears in 2 contracts
Sources: Employment Agreement (Universal Compression Holdings Inc), Employment Agreement (Universal Compression Inc)
Severance. (a) If the Company terminates Employee’s employment with Agreement is terminated by the Company without Cause in accordance with Section 6(c) prior to the expiration of the Initial TermExecutive for Good Reason (as hereinafter defined), the Company shall pay Employee the Executive a severance payment an amount equal to twelve months of Employee’s the highest annual Base Salary as in effect on the date of termination, subject to subsections (c) and (d).
(b) If during the Term for the remainder of this Agreement there is a CC Termination, then the Employee will be entitled to a Term. Such 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)) shall be payable in equal monthly installments (except in the case of payments made as a lump sum result of the termination of the Agreement following a Change in cash in an amount equal to Control of the sum of: Company (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Terminationas hereinafter defined), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will which payments shall be made in a lump sum as soon as practicable, but in any event within sixty (60) days 10 days, after the date Employee’s employment is terminated giving rise of termination) commencing on the first day of the month following termination. In addition, the Company shall pay the Executive any bonuses awarded but not paid for any fiscal year of the Company ending prior to the date of such termination. The Executive shall be reimbursed for all business expenses incurred by the Executive prior to such Severance Payment pursuant termination and shall be entitled to continue to participate in all executive benefit plans in which he was participating on the date of his termination, including, but not limited to, the continuation of all life, disability, accident and medical insurance benefits available to him on such date as long as he is entitled to receive the severance payment hereunder or until the date he receives equivalent coverage and benefits under the plans and programs of a subsequent employer. "Good Reason," for purposes of the Agreement, shall mean (A) the Company shall have materially breached the provisions of the Agreement, including, without limitation, Section 7(a11, or (B) the assignment to the Executive by the Board of duties materially inconsistent with the Executive's position (including status, corporate office(s), title(s) or (breporting responsibility); provided that Employee executes and delivers the release , authority, duties or responsibilities as contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A 3 of the Code and Agreement, or any action by the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A Board which results in a material diminution of the Codeposition, authority, duties or responsibilities of the Severance Payment will Executive as contemplated by Section 3 of the Agreement. A "Change in Control" of the Company shall be made deemed to have occurred if (x) the Company shall have merged or consolidated with an unaffiliated entity or the Company shall have transferred or sold all or substantially all of its assets to an unaffiliated entity, (y) the majority of the directors on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit B Board at any time have not been nominated for election by the 45th day following directors on the Employee’s separation from service and not revoking the release within the seven Board immediately prior to any such election of directors or (7z) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion person or group shall have acquired a majority of the Severance Payment that has been paid to him pursuant to Section 7voting securities of the Company.
Appears in 2 contracts
Sources: Employment Agreement (Univec Inc), Employment Agreement (Univec Inc)
Severance. (a) If Except as otherwise provided in Section 8, if the Executive’s employment hereunder is terminated during the Employment Term by the Company terminates Employee’s employment with or is terminated due to expiration of the Employment Term following notice by the Company without Cause not to extend the Employment Term in accordance with Section 6(c3, in each case other than for Cause or due to disability (as determined in the good faith discretion of the Board) or death, the Executive shall be entitled to receive as severance (subject to Section 9): (i) an amount equal to the Executive’s base salary as in effect immediately prior to the expiration date of the Initial TermExecutive’s termination of employment for twelve (12) months, payable, commencing no later than sixty (60) days following such termination, in equal installments in accordance with the Company’s payroll procedures during the twelve (12) months following the date of the Executive’s termination (such twelve-month period, the “Severance Period”); (ii) continued medical and dental benefits described in Section 4(c) for the Severance Period, at the same rate of employee and Company shared costs of such coverage as in effect from time to time for active employees of the Company; and (iii) a pro rata portion (based on the number of days the Executive was employed by the Company during the calendar year of termination) of any incentive bonus otherwise payable in accordance with Section 4(b) for the year of termination of the Executive’s employment, payable no earlier than the date on which such bonus, if any, would have been paid under the applicable plan or policy of the Company absent such termination of employment, but no later than March 15 of the calendar year immediately following the calendar year of such termination. With respect to any such continued medical and dental benefits described in clause (ii) of the first sentence of this Section 7 for which the Executive is eligible, (I) if the Company cannot continue such benefits, the Company shall pay Employee the Executive for the cost of such benefits; (II) such benefits shall be discontinued in the event the Executive becomes eligible for similar benefits from a severance payment an amount equal successor employer (and the Executive’s eligibility for any such benefits shall be reported by the Executive to twelve months the Company); and (III) the Executive’s period of Employee’s Base Salary “continuation coverage” for purposes of Section 4980B of the Internal Revenue Code of 1986, as in effect amended (the “Code”), shall be deemed to commence on the date of termination, subject to subsections (c) and (d)the Executive’s termination of employment.
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 2 contracts
Sources: Employment Agreement (Associated Materials, LLC), Employment Agreement (Amh Holdings, LLC)
Severance. (a) If Subject to Section 7.1(a) and Section 7.2(b), during the Company terminates Employee’s 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 Company without Cause in accordance with Section 6(c) Buyer or its applicable Affiliate under circumstances that entitle or would have entitled such Transferred Employee to severance benefits under the applicable severance plan of the applicable Seller Entity effective immediately prior to the expiration date hereof and set forth on Schedule 7.2 (each, a “Seller Severance Plan”) (such termination, a “Qualifying Termination”), with cash severance benefits no less favorable than those set forth in such applicable Seller Severance Plan that would apply 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 Initial TermSeller 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 Company provision of severance benefits pursuant to this Section 7.2 shall pay Employee a severance payment an amount equal exclude any entitlements or obligations to twelve months accelerate the vesting of any equity or equity-based awards of the Buyer then-held by the applicable Transferred Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d).
(b) If Notwithstanding anything to the contrary in Section 7.1(a), the 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 (except for the employees set forth on Schedule 1.1(i)) who experience a Qualifying Termination during the Term first [***] of this Agreement there is the applicable Post-Closing Protected Period (the “Seller-Covered Qualifying Termination Period” and a CC Qualifying Termination during the Seller-Covered Qualifying Termination Period, a “Seller-Covered Qualifying Termination”). In connection with the foregoing, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC within thirty (30) days following the Seller-Covered Qualifying Termination (or, if greaterPeriod, the highest Base Salary in effect during Buyer shall provide to the three year period ending on Seller an invoice setting out the date aggregate Specified Severance Benefits and the employer-portion of such CC Terminationtaxes associated therewith, payable as a result of all Seller-Covered Qualifying Terminations (the “Seller Reimbursement Amount”), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum Seller shall reimburse Buyer for the Seller Reimbursement Amount within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 days following receipt of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7such invoice.
Appears in 2 contracts
Sources: Asset Purchase Agreement (MACOM Technology Solutions Holdings, Inc.), Asset Purchase Agreement (Wolfspeed, Inc.)
Severance. (a) If the Company terminates Employee’s employment with Employment Period is terminated by the Company without Cause or by you for Good Reason (as defined in accordance with Section 6(c5(h) prior below), you will be entitled to the expiration of the Initial Term, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s receive (i) your Base Salary as in effect on at the date time of termination, subject such termination to subsections the extent such amount has accrued through the Termination Date (cas defined in Section 5(e) below) and remains unpaid, (d).
ii) any fully earned and declared but unpaid Performance Bonus as of the Termination Date, (biii) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on you would have received from the date of such CC Terminationtermination through the then applicable Expiration Date, which shall be payable in the same amounts and at the same intervals as if the Employment Period had not ended and (iv) any unpaid Expenses as of the Termination Date. Upon delivery of the payments and benefits described in this Section 5(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 (iv) 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 your employment by the Company in favor of the Company, its Affiliates and their respective stockholders, officers, members, managers, directors, employees, subsidiaries and affiliates substantially in the form attached as Exhibit A.
(b) If the Employment Period is terminated by the Company for Cause or by you other than for Good Reason, the Company will pay you (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 fully earned and declared but unpaid Performance Bonus as of the Termination Date, and (iiiii) any unpaid Expenses as of the Employee’s Average Annual BonusTermination Date. Upon delivery of the payment described in this Section 5(b), subject the Company will have no further obligation to subsections (c) and (d)you under this letter agreement or otherwise with respect to your employment with the Company.
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after If the date Employee’s employment Employment Period is terminated giving rise to such Severance Payment pursuant to Section 7(a) or upon your Disability (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A 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 fully earned and declared but unpaid Performance Bonus as of the Code Termination Date, and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A (iii) any unpaid Expenses as of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this AgreementTermination Date.
(d) Employee acknowledges Except as otherwise required by law or as specifically provided herein, all of your rights to salary, severance, fringe benefits, bonuses and agrees any other amounts hereunder (if any) accruing after the Severance Payment termination of the Employment Period will cease upon the earlier of the date of such termination 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 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 “Notice of Termination”) to you. For purposes of this letter agreement, “Termination Date” means (i) if the Employment Period is terminated by your death, the date of your death, (ii) if the Employment Period is terminated upon your Disability, by the Company or by you, the date specified in the Notice of Termination (which may not be earlier than the Employee is entitled under this Section 7 is conditioned upon and subject date of such Notice). Notwithstanding anything contained herein to the Employee’s executing and delivering contrary, any termination of the general release of claims in the form attached hereto as Exhibit B Employment Period 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will you must be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return communicated to the Company any portion of no less than 30 days prior to the Severance Payment that has been paid to him pursuant to Section 7intended Termination Date.
Appears in 2 contracts
Sources: Employment Agreement (Tyme Technologies, Inc.), Employment Agreement (Tyme Technologies, Inc.)
Severance. (a) If the Company terminates the Employee’s employment for reason other than for Cause, the 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 (36) month period on the first day of the month of the Employee’s termination, said sum to be paid within Thirty (30) days after the Employee’s termination of employment.
b. The Company shall pay the Employee all bonus of deferred compensation (whether in the form of cash, stock or otherwise) accrued but unpaid as of the Employee’s termination, said sum to be paid within Thirty (30) days after the Employee’s termination or employment.
c. For a period of Twenty-four (24) months after the Employee’s termination of employment with the Company, the Company shall continue to pay for and provide existing employee welfare benefits which the Employee is receiving as of the date of termination of employment, including life insurance, health, medical, dental, vision and wellness, accidental death and dismemberment and disability benefits; provided, however that the Company’s obligations under this subsection shall terminate from the date that the Employee first becomes eligible after termination of employment with the Company without Cause in accordance with Section 6(c) prior for similar coverage under another employer’s plan.
d. Notwithstanding anything to the expiration of the Initial Term, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as contrary in effect on the date of termination, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum ofStock Option Agreement: (i) twelve months all unvested shares underlying stock options shall become fully vested as of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), the Employee’s termination and (ii) the Employee shall continue to be treated under each Stock Option Agreement as if the Employee was an employee of the Company until the first to occur of (x) the Twenty-Four (24) month anniversary of the Employee’s Average Annual Bonustermination of employment or (y) the expiration of the exercise period provided for therein; provided, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made however, in a lump sum within sixty (60) days the event of the Employee’s death or Disability after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering termination of employment hereunder, the general release of claims time for exercise after death or Disability prescribed in the form attached hereto as Exhibit B by the 45th day following Stock Option Agreement shall apply. The provisions of this subsection shall also apply to all substitute stock options granted to Employee in exchange for the Employee’s separation from service and not revoking the release within the seven (7) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right Company stock options to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of which this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7subsection applies.
Appears in 2 contracts
Sources: Executive Employment Agreement (Accentia Biopharmaceuticals Inc), Executive Employment Agreement (Accentia Biopharmaceuticals Inc)
Severance. (a) If Subject to Section 12, if the Company terminates Employee’s the Executive's employment with the Company without (other than For Cause in accordance with Section 6(c) prior to the expiration or as a result of the Initial Term, the Company shall pay Employee a severance payment an amount equal to twelve months of EmployeeExecutive’s Base Salary as in effect on the date of termination, subject to subsections (cdeath or Disability) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a10(a), or the Executive terminates his employment for Good Reason pursuant to Section 10(b):
(i) payable in The Company shall (subject to Section 11(b) below):
(A) pay or cause to be paid to the Executive a lump lump-sum in cash payment, within ten (10) calendar days of the Termination Date, in an amount equal to the sum of (x) any unpaid Base Pay through the Termination Date, (y) payment in respect of any accrued but unused paid time off or sick pay, and (z) payment in respect of any business expenses reimbursable under Section 7 of this Agreement that have been incurred but not reimbursed prior to the Termination Date;
(B) pay or cause to be paid to the Executive an amount equal to the sum of (I) 100% of the Executive's Base Pay in effect on the Termination Date (or in effect immediately prior to any reduction contemplated by Section 10 (b)(i)(B) hereof, whichever is higher) and (II) $400,000, such sum payable in twelve (12) monthly installments on the Company's last payroll date of each of the first twelve (12) calendar months commencing immediately following the 60th day following the Termination Date; and
(C) pay or cause to be paid to the Executive, under all circumstances, any other compensation or benefits which may be owed or provided to or i n respect of the Executive in accordance with the terms and provisions of any plans or programs of the GENBAND Entities (the applicable payments under this Section 11 (a) collectively, the "Severance Payment); provided, however , that if the Executive is a Specified Employee, except to the extent that any amounts payable to the Executive as a Severance Payment are not treated as deferred compensation under Section 409A, such as, for example, certain payments pursuant to a separation pay plan, the Severance Payment shall not be provided to the Executive until the earlier of (I) the expiration of the six-month period measured from the Separation from Service Date and (II) the date of the Executive's death. All payments delayed pursuant to this paragraph shall be pa id, with interest thereon calculated at the "prime rate," as quoted from time to time during the relevant period in the Southwest Edition of The Wall Street Journal, on the first day of the seventh month following the Executive's Separation from Service Date (or the date of the Executive's death, if earlier), and all remaining payments due pursuant to this Agreement shall be pa id as otherwise provided herein;
(ii) The Executive shall be entitled to reimbursement for, or payment by or on behalf of the GENBAND Entities or any successor entities of: , the premium cost for such group health plan coverage for which the Executive is entitled under the Consolidated Omnibus Budget Reconciliation Act of 1985 as amended ("COBRA") (and which the Executive properly and timely elects to receive with respect to the Executive or any Qualified Beneficiary (as defined in COBRA) whose continued coverage under such GENBAND Entity group health plan is continued and whose coverage derives from being the spouse or a dependent of the Executive) for so long as the Executive or, as appropriate, such Qualified Beneficiary, remains eligible for continuation coverage as contemplated pursuant to COBRA and the relevant group health plan of the GENBAND Entities, but i n no event longer than twelve (12) months (such period of continued coverage, the "Continuation Period''). The GENBAND Parties shall at the same time as any such action (including payment of any reimbursement) make any payment that may be necessary to ensure that the Executive's after-tax position with respect to any health and welfare benefits or cash payments received pursuant to this Section 11(a)(ii) is not worse than the Executive's after-tax position in the event such benefits had been provided to the Executive while he was employed by the Company. Any such reimbursement or in-kind benefits provided under this Agreement shall be made or provided by the GENBAND Parties on or before the last day of the Executive's taxable year following the taxable year in which the expenses are incurred, and shall also satisfy all other requirements of the regulations under Section 409A with respect to any such reimbursements. The amount of any such expenses reimbursed or in-kind benefits provided in one year shall not affect the expenses or in-kind benefits eligible for reimbursement or payment in any subsequent year, and the Executive’s right to such reimbursement or payment of any such expenses will not be subject to liquidation or exchange for any other benefit. Any tax gross-up payment provided under this Agreement shall be made or provided by the GENBAND Parties on or before the last day of the Executive’s taxable year following the taxable year in which the Executive remits the related taxes, and shall also satisfy all other requirements of the regulations under Section 409A with respect to any such tax gross-ups; and
(iii) If such termination of the Executive's employment occurs within twelve (12) months after a Change in Control, notwithstanding anything to the contrary in any applicable equity award agreement or equity plan, each Equity Award (including, but not limited to, any Equity Awards of Cayman Holdings, including the Class E Shares) granted to the Executive that is outstanding as of the Termination Date shall, without further action, become immediately fully vested, any automatic repurchase rights will fully lapse, and all restrictions with respect thereto shall lapse to the extent such Equity Awards have not otherwise vested, automatic repurchase rights have not lapsed, or any other restrictions with respect thereto have not otherwise lapsed on or prior to the Termination Date.
(b) The GENBAND Parties' obligations pursuant to this Section 11 shall be conditioned upon (i) twelve months the Executive's termination of Employee’s Base Salary in effect on date employment constituting a "separation from service" within the meaning of such CC Termination (or, if greater, Section 1.409A-1(h) of the highest Base Salary in effect during the three year period ending on the date Department of such CC Termination), Treasury Regulations and (ii) the Employee’s Average Annual BonusExecutive's execution and delivery of a release, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in substantially the form attached hereto as Exhibit B by A, on or prior to the 45th 60th day following the Employee’s separation from service Termination Date, which has not been revoked by the Executive prior to, and cannot revoking be revoked by the release within the seven (7) days after executing and delivering the releaseExecutive after, such 60th day. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar yearsFurther, for purposes of Section 409A, the Severance Payment will be paid in the second calendar year. Employee’s Executive's right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-receive installment payments pursuant to this Section 11 shall be treated as a right to receive a series of separate and distinct payments.
(c) Notwithstanding any other provision of this Agreement. If Employee breaches any of his Agreement to the contrary, the parties' respective rights and obligations in under this Section 11 and under Sections 8-11 12 through 30 will survive the expiration of this Agreement, he will immediately return to the Company any portion expiration of the Severance Payment that has been paid to him pursuant to Section 7Employment Term and the termination of the Executive's employment for any reason whatsoever.
Appears in 2 contracts
Sources: Employment Agreement (Ribbon Communications Inc.), Employment Agreement (Ribbon Communications Inc.)
Severance. (a) If the Company terminates Employee’s employment with the Company without Cause in accordance with Subject to Section 6(c) prior to the expiration of the Initial Term9(a), the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months receive continued payments of Employee’s Base Salary base salary (as in effect on date immediately prior to such termination) for a period of twelve (12) months (the “Severance Period” and such CC Termination (orpayments, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination“Severance Payments”), and less applicable withholding payable in accordance with the Company’s normal payroll policies. Notwithstanding the foregoing, Severance Payments shall commence to be paid immediately following Release Date (ii) provided if the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period Release Period spans two calendar years, the Severance Payment will be made in immediately following January 1 of the second calendar year. However, if later than Release Date), with the first payment containing all of the Severance Payments which should have been paid prior to such date but were not paid. Notwithstanding the foregoing and except as provided by the following sentence, if during the Severance Period Employee is breaches the covenants in Section 6 or in the Release and, if applicable, his Change in Control Non-Competition Agreement (a “specified employee” Breach”), all payments pursuant to this subsection will immediately cease effective as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A first date of a Breach of the Codeapplicable covenants (the “Breach Date”). Notwithstanding the preceding sentence, if payment of the Severance Payment will be made on severance amounts is delayed in accordance with Section 9(a) of this Agreement, the Company’s first payroll obligation to make Severance Payments to Employee during the Severance Period shall not terminate pursuant to the preceding sentence (i.e., upon the Breach Date) with respect to any Severance Payments that have been accrued prior to the Breach Date in accordance with Section 9(a) of this Agreement and such accrued Severance Payments shall be paid in a lump sum payment on the date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
and one (d1) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit B by the 45th day following the date of Employee’s separation from service and not revoking the release within the seven termination of employment (7or such earlier date as provided in Section 9(a) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7).
Appears in 2 contracts
Sources: Severance Agreement (Giga Tronics Inc), Severance Agreement (Giga Tronics Inc)
Severance. (ai) If In the Company terminates Employeeevent of any termination of the Executive’s employment with the Company without Cause in accordance with Section 6(c) prior to the expiration of the Initial Termfor any reason, the Company Executive (or his estate) shall pay Employee a severance payment an amount equal be entitled to twelve months of Employee’s (A) his Base Salary as through the date of termination, (B) the value of his accrued but unused vacation and paid time off through the date of termination, (C) except in effect the case of termination for Cause, any bonus earned in a prior year but not yet paid on the date of termination, subject (D) reimbursement of all business expenses properly incurred prior to subsections (c) the date of termination consistent with Company policy, and (dE) 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”).
(bii) If during In the Term event of this Agreement there is a CC Terminationtermination of the Executive’s employment by reason of death or Disability, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable Company shall pay or provide to the Employee under Company plans Executive or the Executive’s estate (A) the Accrued Benefits, (B) the Executive’s Base Salary, in which Employee is accordance with its normal payroll practices (but not less frequently than monthly), for a participantperiod of six (6) months from the effective date of such termination, but without duplication for any amounts due to Employee pursuant to Section 7(a)(C) payable in a lump sum in cash in an amount equal to the sum of: Executive’s Target Bonus for the fiscal year of termination pro-rated through the date of termination (idetermined based on the number of days in the calendar year that the Executive is employed by the Company in such year of the effective date of termination) and paid within thirty (30) days following such termination, and (D) continued health benefits for the 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 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 EmployeeControl pursuant to Section 10(a)(v), the Company shall (A) pay or provide to the Executive the Accrued Benefits, (B) pay the Executive a pro-rata annual bonus in respect of the fiscal year in which the effective date of termination occurs (determined based on the number of days in the calendar year that the Executive is employed by the Company in such fiscal year of the effective date of termination), 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 Base Salary Salary, in effect on accordance with its normal payroll practices (but not less frequently than monthly), and shall continue the Executive’s, and his eligible dependents’, health insurance benefits at 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 CC Termination termination, and (orD) provide the Executive, if greaterat the Company’s expense, the highest Base Salary in effect during the three year with senior executive level outplacement services for a period ending on 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 CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d)outplacement expenses shall not exceed $25,000 in any event.
(civ) Any severance payment payable to Employee pursuant to Except as expressly provided in this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after 10(b), upon the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (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 termination of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the CodeExecutive’s employment, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreementall payments hereunder shall cease.
(dv) Employee acknowledges The payments and agrees 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 Severance Payment to which Company. The payments and benefits described in Sections 10(b)(ii) and 10(b)(iii), other than the Employee is entitled under this Section 7 is Accrued Benefits, are conditioned upon on:
i. The Executive’s (or in the case of Executive’s death, his/her estate’s) execution and subject delivery to the Employee’s executing Company and delivering the expiration of all applicable statutory revocation periods, by the sixtieth (60th) day following the effective date of his termination of employment, of a general release of claims against the Company and its affiliates substantially in the form attached hereto as Exhibit B by A (the 45th day following “Release”). Subject to Section 11 below, the Employee’s separation from service payments and not revoking 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 within Release becomes irrevocable, provided that if the seven sixty (7) days after executing and delivering the release. If such forty-five (4560) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid described above begins in one taxable year and ends in a second taxable year such payments or benefits shall not commence until the second calendar taxable year.
ii. Employee’s right to the Severance Payment is further conditioned upon EmployeeThe Executive’s continued compliance with the provisions of Sections 8-11 5, 6, 7 and 8 of this Agreement. If Employee breaches .
(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 the Executive’s medical coverage is discontinued by reason of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7acquiring other coverage.
Appears in 2 contracts
Sources: Employment Agreement (Recro Pharma, Inc.), Employment Agreement (Recro Pharma, Inc.)
Severance. (a) If the Company terminates EmployeeUpon termination of Executive’s employment with the Company (including election not to extend the term of this Agreement pursuant to Section 1 above) by the Company without Cause (as defined below) or upon Executive’s resignation from employment (including election not to extend the term of this Agreement pursuant to Section 1 above) for Good Reason (as defined below), in accordance with Section 6(ceach case contingent upon Executive’s execution, non-revocation, and delivery of a Confidential Severance and Release Agreement in a form substantially similar to Exhibit A of this Agreement (the “Release Agreement”), Executive shall be entitled to the following: (i) a lump sum severance payment in an amount equal to two (2) months of the Base Salary in effect immediately prior to Executive’s last date of employment, less applicable withholdings and deductions; and (ii) if Executive elects to receive continued healthcare coverage pursuant to the expiration Consolidated Omnibus Budget Reconciliation Act of the Initial Term1985, as amended (“COBRA”), the Company shall pay directly pay, or reimburse Executive for, the COBRA premiums for Employee a severance payment an amount equal to twelve months of and Employee’s Base Salary as in effect covered dependents during the period commencing on Executive’s termination and ending upon the earliest of (A) twelve (12) months following the date of termination, subject (B) the date that Executive and/or Executive’s covered dependents become no longer eligible for COBRA or (D) the date Executive and Executive’s covered dependents become eligible to subsections (c) and (d)receive healthcare coverage from Executive’s subsequent employer.
(b) The Company’s obligations under this Section 6.2 are subject to the requirements and time periods set forth in this Section 6.2 and in the Release Agreement. Prior to receiving the payments described in this Section 6.2, Executive shall execute the Release Agreement on or before the date that is seventy-five (75) days after the last day of Executive’s employment. If during Executive fails to timely execute and remit the Term of Release Agreement, Executive waives any right to the payments provided under this Section 6.2. The Company will have no further obligations to Executive under this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee or otherwise after making payments pursuant to this Section 7(a)6.2. Payments under this Section 6.2 shall be made within fifteen (15) payable in a lump sum in cash in an amount equal to days of Executive’s execution and delivery of the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (orRelease Agreement, if greater, provided that Executive does not revoke the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d)Release Agreement.
(c) Any severance payment payable to Employee Executive agrees that payments made pursuant to this Section 7 (a “Severance Payment”) will be made 6.2 shall constitute the exclusive and sole remedy for any termination of Executive’s employment, and Executive covenants not to assert or pursue any other remedies, at law or in a lump sum within sixty (60) days after the date Employeeequity, with respect to any termination of employment. The foregoing shall not limit any of Executive’s employment is terminated giving rise rights with regard to such Severance Payment pursuant any rights to Section 7(a) indemnification, advancement or (b); provided that Employee executes payment of legal fees and delivers the release contemplated by Section 7(d) costs, and such release becomes effective coverage under directors and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreementofficers liability insurance.
(d) Employee acknowledges Anything in this Agreement to the contrary notwithstanding, the Company shall have the right to terminate all payments and agrees the Severance Payment benefits owing to which the Employee is entitled under Executive pursuant to this Section 7 is conditioned 6.2 upon and subject to the EmployeeCompany’s executing and delivering discovery of any material breach by Executive of Executive’s obligations under the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Release Agreement or Sections 8-11 , 9, or 12 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 2 contracts
Sources: Executive Employment Agreement (Lifeloc Technologies, Inc), Executive Employment Agreement (Lifeloc Technologies, Inc)
Severance. Except as otherwise provided in Section 8, if the Executive’s employment hereunder is terminated during the Employment Term, following the Executive’s initial twelve (a12) If months of employment, by the Company terminates Employee’s employment with or is terminated due to expiration of the Employment Term following notice by the Company without Cause not to extend the Employment Term in accordance with Section 6(c3, in each case other than for Cause or due to disability (as determined in the good faith discretion of the Board) or death, the Executive shall be entitled to receive as severance (subject to Section 9): (i) an amount equal to the Executive’s base salary as in effect immediately prior to the expiration date of the Initial TermExecutive’s termination of employment for twelve (12) months, payable, commencing no later than sixty (60) days following such termination, in equal installments in accordance with the Company’s payroll procedures during the twelve (12) months following the date of the Executive’s termination (such twelve-month period, the “Severance Period”); (ii) continued medical and dental benefits described in Section 4(c) for the Severance Period, at the same rate of employee and Company shared costs of such coverage as in effect from time to time for active employees of the Company; and (iii) a pro rata portion (based on the number of days the Executive was employed by the Company during the calendar year of termination) of any incentive bonus otherwise payable in accordance with Section 4(b) for the year of termination of the Executive’s employment, payable no earlier than the date on which such bonus, if any, would have been paid under the applicable plan or policy of the Company absent such termination of employment, but no later than March 15 of the calendar year immediately following the calendar year of such termination. With respect to any such continued medical and dental benefits described in clause (ii) of the first sentence of this Section 7 for which the Executive is eligible, (I) if the Company cannot continue such benefits, the Company shall pay Employee the Executive for the cost of such benefits; (II) such benefits shall be discontinued in the event the Executive becomes eligible for similar benefits from a severance payment an amount equal successor employer (and the Executive’s eligibility for any such benefits shall be reported by the Executive to twelve months the Company); and (III) the Executive’s period of Employee’s Base Salary “continuation coverage” for purposes of Section 4980B of the Internal Revenue Code of 1986, as in effect amended (the “Code”), shall be deemed to commence on the date of termination, subject to subsections (c) and (d)the Executive’s termination of employment.
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 2 contracts
Sources: Employment Agreement (Associated Materials, LLC), Employment Agreement (Amh Holdings, LLC)
Severance. (ai) If In the Company terminates Employeeevent of any termination of Executive’s employment with the Company without Cause in accordance with Section 6(cfor any reason, Executive (or his estate) prior shall be entitled to the expiration of the Initial Term, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s (A) his Base Salary as through the date of termination, (B) the value of his accrued but unused vacation and paid time off through the date of termination, (C) except in effect the case of termination for Cause, any bonus earned in a prior year but not yet paid on the date of termination, subject (D) reimbursement of all business expenses properly incurred prior to subsections (c) the date of termination consistent with Company policy, and (dE) 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”).
(bii) If during In the Term event of this Agreement there is a CC Terminationtermination of Executive’s employment by reason of death, then or Disability, the Employee will be entitled Company shall pay or provide to a severance payment Executive or Executive’s estate (in addition to any other rights and other amounts payable to A) the Employee under Company plans in which Employee is a participantAccrued Benefits, but without duplication for any amounts due to Employee pursuant to Section 7(a)(B) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of EmployeeExecutive’s Base Salary Salary, in effect on date of such CC Termination accordance with its normal payroll practices (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Terminationbut not less frequently than monthly), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (for a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months from the Severance Payment effective date of such termination, (C) an amount equal to 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 Executive is otherwise payable pursuant to this Agreementemployed by the Company in such year of the effective date of termination) and paid within thirty (30) days following such termination, and (D) continued health benefits for Executive and his eligible dependents at Company’s expense (or such portion thereof as is then funded by the Company for other employees of the Company), if applicable, for the same period.
(diii) Employee acknowledges and agrees In the Severance Payment event of a nonrenewal or termination by the Company pursuant to Section 2 or Section 10(a)(iii), or if Executive terminates this Agreement during the twelve (12) months after a Change of Control pursuant to Section 10(a)(v), the Company shall (A) pay or provide to Executive the Accrued Benefits, (B) pay Executive a pro-rata annual bonus in respect of the fiscal year in which the Employee effective date of termination occurs (determined based on the number of days in the calendar year that Executive is entitled under employed by the Company in such fiscal year of the effective date of termination), with such annual bonus (if any) paid at the same time it would have otherwise been paid absent Executive’s termination of employment, (C) continue to pay Executive his/her Base Salary, in accordance with its normal payroll practices (but not less frequently than monthly), and shall continue Executive’s, and his eligible dependents’, health insurance benefits at 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 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 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 7 is 10(b), upon the termination of Executive’s employment, all payments hereunder shall cease.
(v) The payments and benefits described in Section 10(b)(ii) and 10(b)(iii) are in lieu of, and not in addition to, any other severance arrangement maintained by the Company. The payments and benefits described in Section 10(b)(ii) and 10(b)(iii), other than the Accrued Benefits, are conditioned upon on: (a) Executive’s (or in the case of Executive’s death, his/her estate’s) execution and subject delivery to the Employee’s executing Company and delivering the expiration of all applicable statutory revocation periods, by the 60th day following the effective date of his/her termination of employment, of a general release of claims against the Company and its affiliates substantially in the form attached hereto as Exhibit B by A (the 45th day following the Employee’s separation from service “Release”); and not revoking the release within the seven (7b) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon EmployeeExecutive’s continued compliance with the provisions of Sections 8-11 5, 6, 7 and 8 of this Agreement. If Employee breaches Subject to Section 10(d) below, the payments and benefits described in Section 10(b)(ii) and 10(b)(iii) will begin to be paid or provided as soon as administratively practicable after the Release becomes irrevocable, provided that if the 60 day period described above begins in one taxable year and ends in a second taxable year such payments or benefits shall not commence until the second taxable year.
(vi) Executive shall not be required to seek or accept other employment, or otherwise to mitigate damages, as a condition to receipt of the benefits described in Section 10(b)(ii) and 10(b)(iii), and such benefits shall not be reduced or offset by an amounts received by Executive from any other source, except to the extent Executive’s medical coverage is discontinued by reason of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7acquiring other coverage.
Appears in 2 contracts
Sources: Employment Agreement (Recro Pharma, Inc.), Employment Agreement (Recro Pharma, Inc.)
Severance. In exchange for Executive’s agreement to be bound by the terms of this Release, including, but not limited to, the release of claims in Section 3, and subject to the occurrence of the Effective Date as provided in Section 1(a), Executive shall be entitled to receive the following, which shall be the exclusive severance benefits to which Executive is entitled, unless Executive has failed to comply with the provisions of this Release, in which case the last sentence of Section 4 shall apply:
(ai) If A cash payment in the amount of $292,916.55, representing twelve (12) months’ base salary, payable in a lump sum on the sixtieth (60th) day following the Separation Date; plus
(ii) A cash payment in the amount of $87,874.97, representing Executive’s 2019 annual bonus, payable in a lump sum on the sixtieth (60th) day following the Separation Date; plus
(iii) For the period beginning on the Separation Date and ending on the date which is twelve (12) full months following the Separation Date (or, if earlier, (x) the date on which the applicable continuation period under COBRA expires, or (y) the date Executive becomes eligible to receive the equivalent or increased healthcare coverage from a subsequent employer) (such period, the “COBRA Coverage Period”), the Company terminates Employeeshall either, at its option, (1) pay directly or (2) reimburse Executive, for the costs associated with continuation coverage pursuant to COBRA for Executive and his eligible dependents who were covered under the Company’s employment with health plans as of the Company Separation Date (provided that Executive shall be solely responsible for all matters relating to his continuation of coverage pursuant to COBRA, including, without Cause in accordance with Section 6(climitation, his election of such coverage and his timely payment of premiums). If (x) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the Initial Termperiod of continuation coverage to be, exempt from the application of Section 409A of the Code under Treasury Regulation Section 1.409A-1(a)(5), or (y) the Company is otherwise unable to continue to cover Executive under its group health plans under applicable law or the terms of such plans, then, in either case, the Company shall instead pay Employee a severance payment to Executive an amount equal to twelve months the monthly plan premium payment for Executive and his eligible dependents who were covered under the Company’s health plans as of Employeethe Separation Date (calculated by reference to Executive’s Base Salary premiums as of the Separation Date) as currently taxable compensation in effect on substantially equal monthly installments over the date of termination, subject to subsections COBRA Coverage Period (c) and (dor the remaining portion thereof).; plus
(biv) If during In the Term event a Company Transaction (as defined in the Employment Agreement) occurs within fifty-nine (59) days following the Separation Date, the additional benefits set forth below (and, for the avoidance of doubt, if a Company Transaction does not occur within such time period, Executive shall not be eligible to receive the additional severance benefits described in this Agreement there is a CC Termination, then clause (iv)):
(A) An additional cash payment in the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to amount of Executive’s full target bonus for the Employee under Company plans year in which Employee is a participantthe Company Transaction occurs, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and sixtieth (ii60th) day following the Employee’s Average Annual Bonus, subject to subsections (c) and (d).Separation Date; plus
(cB) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will The vesting and/or exercisability of each of Executive’s outstanding stock options shall 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 automatically accelerated and delivers the release contemplated by Section 7(d) deemed vested 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” exercisable as defined in regulations under Section 409A of the Code Separation Date. Except as modified above, Executive’s stock options shall continue to be governed by the terms and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A conditions of the Code, the Severance Payment will be made on stock option agreements and the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable equity plan pursuant to this Agreement.
(d) Employee acknowledges and agrees which such stock options were granted. The foregoing benefits shall be the Severance Payment exclusive benefits to which the Employee Executive is entitled under this Section 7 is conditioned upon and subject in connection with his termination of employment, unless Executive has failed to comply with the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 provisions of this Agreement. If Employee breaches any Release, in which case the last sentence of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 74(a) shall apply.
Appears in 2 contracts
Sources: General Release of Claims (Avidity Biosciences, Inc.), General Release of Claims (Avidity Biosciences, Inc.)
Severance. (ai) If Without limiting the Company generality of the provisions of Section 6.9(b), as of the Closing Date, Buyer shall provide severance pay and benefits to each Continuing Employee whose employment terminates or is terminated on or during the 12 month period (or 24 month period with respect to those Business Employees who are covered under the Dynegy, Inc. Executive Change in Control Severance Plan (the “Executive CIC Plan”)), as applicable, following the Closing which are no less favorable than those described in the severance Benefit Plan set forth on Schedule 6.9(e) (the “Applicable Severance Plans”) applicable to such Continuing Employee immediately prior to the Closing (taking into account increases in compensation and service through the date of such termination); provided, however, that a Business Employee’s eligibility for severance benefits shall be determined using the same requirements for eligibility set forth in the Applicable Severance Plan as of the Closing. As a condition of any such severance benefits, Buyer shall require that affected employees execute (and not revoke) a general release of all claims against Seller, Buyer and their respective Affiliates. Buyer and Seller agree that in the event an independent plan administrator of any Applicable Severance Plan or a court of competent jurisdiction based on a claim initiated by a Business Employee for a denial of benefits or otherwise under the Applicable Severance Plan, determines that any Business Employee is entitled to any severance or termination benefits under the Applicable Severance Plan due solely to the transactions contemplated by this Agreement (including the actions taken by Dynegy as set forth in Section 6.9(f) of the Merger Agreement), any payments made to the applicable Business Employee pursuant to such determination shall be the sole severance benefit due such Business Employee by Seller, Buyer, the Companies or their Affiliates.
(ii) Buyer and Seller agree that the transaction and related transactions contemplated pursuant to this Agreement (including the transfer of any Business Employees to the Companies prior to the Closing Date and the Amendment of the Applicable Severance Plan under the Merger Agreement), shall not constitute events that would entitle any Business Employee to any severance or similar benefits under any Applicable Severance Plan. In furtherance of the foregoing, Seller shall not (nor shall Seller allow any plan administrator of the Applicable Severance Plans that is under its control) determine any Business Employee is entitled to any severance or termination benefits under the Applicable Severance Plan unless and until such employee’s employment with the applicable Company without Cause has been terminated after the Closing (unless ordered to do otherwise by a court of competent jurisdiction based on a claim initiated by a Business Employee for a denial of benefits or otherwise under the Applicable Severance Plan); provided, however, for avoidance of doubt:
1. Seller shall indemnify, defend, and hold Buyer, the Companies and their Affiliates harmless from and against any and all liabilities, claims and obligations (including attorney’s fees and other costs of defense) arising out of or otherwise in accordance respect of any severance obligations with respect to any Business Employee under any Applicable Severance Plan solely triggered by: Seller’s failure to meet the requirements of this Section 6.9(e)(ii) unless the employment of the applicable Business Employee is subsequently terminated after the Closing by Buyer or its Affiliates under circumstances that would have required Buyer or its Affiliates to pay severance or similar benefits under the Applicable Severance Plan; and
2. Seller shall be solely liable for, and shall indemnify Buyer for, any and all liabilities, claims and obligations (including attorney’s fees and other costs of defense) arising out of or otherwise in respect of any severance obligations with respect to any Business Employee under any Applicable Severance Plan triggered by Dynegy’s failure to fully comply with Section 6(c6.9(f) prior to the expiration of the Initial Term, Merger Agreement unless the Company employment of the applicable Business Employee is subsequently terminated by Buyer or its Affiliates after the Closing under circumstances that would have required Buyer or its Affiliates to pay severance or similar benefits under the Applicable Severance Plan (in which case Buyer shall pay Employee a severance payment an amount equal to twelve months bear 100% of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (dsuch costs).
3. Notwithstanding the foregoing, Seller and Buyer shall jointly share liability, on a 50/50 basis, for, any and all liabilities, claims and obligations (bincluding attorney’s fees and other costs of defense) If during arising out of or otherwise in respect of any severance obligations with respect to any Business Employee under any the Term Executive CIC Plan triggered by Dynegy’s failure to amend the Executive CIC Plan as described in Section 6.9(f) because Seller concludes such amendment violates the terms of this Agreement there the Executive CIC Plan, unless the employment of the applicable Business Employee is a CC Termination, then subsequently terminated by Buyer or its Affiliates after the Employee will be entitled Closing under circumstances that would have required Buyer or its Affiliates to a pay severance payment or similar benefits under the Applicable Severance Plan (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date case Buyer shall bear 100% of such CC Termination (or, if greater, the highest Base Salary costs). Seller and Buyer shall cooperate in effect during the three year period ending on the date of such CC Termination), good faith to mitigate all potential severance or termination payments and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (dbenefits described in this Section 6.9(e)(ii).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 2 contracts
Sources: Merger Agreement (Dynegy Inc.), Purchase and Sale Agreement (NRG Energy, Inc.)
Severance. (a) If the Company terminates Employee’s Executive's employment with hereunder is terminated during the Employment Term (1) by the Company without other than for Cause 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 6(c3, or (2) prior by the Executive for Good Reason, the Executive shall be entitled to receive as severance: (i) an amount equal to $1,000,000 per year for two (2) years (payable, at the expiration 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 Initial TermExecutive's termination) (such two-year period, the "Severance Period"); (ii) continued medical and dental benefits described in Section 4(c) for the Severance Period, at the same rate of employee and Company shared costs of such coverage as in effect from time to time for active employees of the Company, and (iii) a pro rata portion (based on the number of days the Executive was employed by the Company during the calendar year of termination) of any incentive bonus otherwise payable in accordance with Section 4(b)(1) for the year of termination of the Executive's employment, payable no earlier than the date on which such bonus, if any, would have been paid under the applicable plan or policy of the Company absent such termination of employment. With respect to any such continued medical and dental benefits described in clause (ii) of the immediately preceding sentence for which the Executive is eligible, (I) if the Company cannot continue such benefits, the Company shall pay Employee the Executive for the cost of such benefits; (II) such benefits shall be discontinued in the event the Executive becomes eligible for similar benefits from a severance payment an amount equal successor employer (and the Executive's eligibility for any such benefits shall be reported by the Executive to twelve months the Company); and (III) the Executive's period of Employee’s Base Salary "continuation coverage" for purposes of Section 4980B of the Internal Revenue Code of 1986, as in effect amended ("COBRA"), shall be deemed to commence on the date of the Executive's termination of employment. If the Executive's employment is terminated otherwise than as described in this Section 7, the Executive shall not be entitled to any severance, termination pay or similar compensation or benefits, provided that the Executive shall be entitled to any benefits then due or accrued in accordance with the applicable employee benefit plans of the Company or applicable law, including COBRA. As a condition of receiving any severance for which he otherwise qualifies under this Section 7, the Executive agrees to execute a general release of the Company and the Affiliates and their respective officers, directors and employees from any and all claims, obligations and liabilities of any kind whatsoever arising from or in connection with the Executive's employment or termination of employment with the Company or this Agreement (including, without limitation, civil rights claims), in such form as is reasonably requested by the Company. The Executive acknowledges and agrees that, except as specifically described in this Section 7, all of the Executive's rights to any compensation, benefits (other than base salary earned through the date of termination of employment and any benefits due or accrued prior to termination of employment in accordance with the applicable employee benefit plans of the Company or applicable law), bonuses or severance from the Company or any Affiliate after termination of the Employment Term shall cease upon such termination. In the event of any termination of the Executive's employment, the Executive shall have no duty to mitigate the amount of any severance to which he may be entitled pursuant to this Section 7(a) by seeking other employment or otherwise, and any severance to which the Executive is entitled pursuant to this Section 7(a) shall be determined without regard to whether the Executive obtains any other employment (subject to subsections clause (cII) of the second sentence of this Section 7(a), relating to discontinuation of Company medical and (ddental benefits, and the Executive's obligations under Section 5).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 For purposes of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.:
Appears in 2 contracts
Sources: Employment Agreement (Associated Materials Inc), Employment Agreement (AMH Holdings, Inc.)
Severance. (a) If the Company terminates Employee’s employment with the Company without Cause in accordance with Section 6(c) prior Employee is asked to resign or is terminated as City Manager, then Employee shall be paid for any accrued, but unused, vacation and administrative leave, but not accrued sick leave. Subject to the expiration provisions of California Government Code section 53260 and 53261, Employee shall also be eligible to receive two severance benefits: first, a cash payment equivalent to the Initial Term, the Company shall pay Employee a severance payment an amount equal to twelve months sum of Employee’s Base Salary as in effect on the date then-current monthly base salary multiplied by six (6) months, with an additional one month for every full year of terminationservice thereafter up to a maximum of twelve (12) months of severance; and second, provided Employee timely elects COBRA coverage, reimbursement for Employee’s monthly COBRA-eligible health benefits, at then-current coverage levels, for six (6) months, with an additional one month for every full year of service thereafter up to a maximum of twelve (12) months of reimbursed COBRA coverage, and subject to subsections Employee’s payment of the 2% administrative fee. Eligibility for severance benefits is expressly conditioned upon Employee’s execution of (ci) a waiver and release of any and all of Employee’s claims against City, its Councilmembers, officers, and employees, and (d).
(bii) If during the Term a covenant not to sue any of those parties. The parties intend this Agreement there is a CC Terminationprovision to comply with California Government Code section 53260, then the Employee will be entitled which limits severance benefits to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date monthly salary multiplied by the number of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending months remaining on the date unexpired term of such CC Terminationthe Agreement. The parties also intend this term to comply with the provisions of California Government Code section 53261, which limits health benefits, which may be continued for a maximum number of months remaining on the unexpired term of the Agreement or until Employee finds other employment (whichever occurs first), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance . The cash payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum based on timing set forth in the waiver and release. All normal payroll taxes and withholdings as required by law shall be made with respect to any amounts paid under this section. Employee expressly agrees to provide notice to the City within sixty five (605) business days after of accepting employment elsewhere, and the date EmployeeCity’s employment is terminated giving rise obligation to such Severance Payment pursuant to Section 7(a) or (b); provided pay for any further health benefits shall terminate upon receiving notice that Employee executes and delivers the release contemplated by Section 7(d) and has accepted such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreementalternative employment.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 2 contracts
Sources: City Manager Employment Agreement, City Manager Employment Agreement
Severance. (a) If Except as otherwise provided in Section 8, if the Executive’s employment hereunder is terminated during the Employment Term by the Company terminates Employee’s employment with or is terminated due to expiration of the Employment Term following notice by the Company without Cause not to extend the Employment Term in accordance with Section 6(c3, in each case other than for Cause or due to disability (as determined in the good faith discretion of the Board) or death, the Executive shall be entitled to receive as severance (subject to Section 9): (i) an amount equal to the Executive’s base salary as in effect immediately prior to the expiration date of the Initial Executive’s termination of employment for the longer period of twelve (12) months or the remaining Employment Term, payable, commencing no later than sixty (60) days following such termination, in equal installments in accordance with the Company’s payroll procedures during such applicable period following the date of the Executive’s termination (such period, the “Severance Period”); (ii) continued medical and dental benefits described in Section 4(c) for the Severance Period, at the same rate of employee and Company shared costs of such coverage as in effect from time to time for active employees of the Company; and (iii) a pro rata portion (based on the number of days the Executive was employed by the Company during the calendar year of termination) of any incentive bonus otherwise payable in accordance with Section 4(b) for the year of termination of the Executive’s employment, payable no earlier than the date on which such bonus, if any, would have been paid under the applicable plan or policy of the Company absent such termination of employment, but no later than March 15 of the calendar year immediately following the calendar year of such termination. With respect to any such continued medical and dental benefits described in clause (ii) of the first sentence of this Section 7 for which the Executive is eligible, (I) if the Company cannot continue such benefits, the Company shall pay Employee the Executive for the cost of such benefits; (II) such benefits shall be discontinued in the event the Executive becomes eligible for similar benefits from a severance payment an amount equal successor employer (and the Executive’s eligibility for any such benefits shall be reported by the Executive to twelve months the Company); and (III) the Executive’s period of Employee’s Base Salary “continuation coverage” for purposes of Section 4980B of the Internal Revenue Code of 1986, as in effect amended (the “Code”), shall be deemed to commence on the date of termination, subject to subsections (c) and (d)the Executive’s termination of employment.
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 2 contracts
Sources: Employment Agreement (Associated Materials, LLC), Employment Agreement (Amh Holdings, LLC)
Severance. (a) If the Company terminates Employee’s Executive's employment with hereunder is terminated during the Employment Term by the Company without Cause or is terminated due to expiration of the Employment Term following notice by the Company not to extend the Employment Term in accordance with Section 6(c3, in each case other than for Cause or due to disability (as determined in the good faith discretion of the Board) or death, the Executive shall be entitled to receive as severance: (i) if such termination occurs prior to the expiration of the Initial Termtwo (2) year period following the Commencement Date, the Company shall severance pay Employee a severance payment an amount equal to twelve months and benefits payable under the terms of Employee’s Base Salary as in effect on the date of terminationSections 3(b), subject to subsections (c3(c), 3(d), 3(e), 3(f) and 3(g) of the severance agreement attached as Exhibit B hereto (d).
(b) If during pursuant to which, the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans calendar year in which Employee is a participantthe "Change in Control" occurred, but without duplication for any amounts due to Employee pursuant to Section 7(apurposes of Sections 3(d) and 3(e) thereunder, shall be 2002), or (ii) payable if such termination occurs other than as described in a lump sum in cash in clause (i) immediately preceding, an amount equal to the sum of: (i) twelve months of Employee’s Base Salary Executive's base salary as in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on immediately prior to the date of such CC Terminationthe Executive's termination of employment for the longer period of twelve (12) months or the remaining Employment Term (payable, at the Company's option, in a lump-sum or in equal installments in accordance with the Company's payroll procedures during the applicable period described immediately above in this clause (ii) following the date of the Executive's termination), and a pro rata portion (iibased on the number of days the Executive was employed by the Company during the calendar year of termination) of any incentive bonus otherwise payable in accordance with Section 4(b) for the Employee’s Average Annual Bonusyear of termination of the Executive's employment, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after no earlier than the date Employee’s on which such bonus, if any, would have been paid under the applicable plan or policy of the Company absent such termination of employment. If the Executive's employment is terminated giving rise otherwise than as described in this Section 7, the Executive shall not be entitled to such Severance Payment pursuant to Section 7(a) any severance, termination pay or (b); similar compensation or benefits, provided that Employee executes and delivers the release contemplated by Executive shall be entitled to any benefits then due or accrued in accordance with the applicable employee benefit plans of the Company or applicable law, including "continuation coverage" under the Company's group health plans for purposes of Section 7(d) and such release becomes effective and irrevocable4980B of the Internal Revenue Code of 1986, as amended ("COBRA"). If such sixty (60) day period spans two calendar yearsAs a condition of receiving any severance for which he otherwise qualifies under this Section 7, the Severance Payment will be made in the second calendar year. However, if Employee is Executive agrees to execute a “specified employee” as defined in regulations under Section 409A general release of the Code Company and the Severance Payment constitutes “nonqualified deferred compensation” that Affiliates and their respective officers, directors and employees from any and all claims, obligations and liabilities of any kind whatsoever arising from or in connection with the Executive's employment or termination of employment with the Company or this Agreement (including, without limitation, civil rights claims), in such form as is subject to Section 409A of the Code, the Severance Payment will be made on requested by the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee . The Executive acknowledges and agrees the Severance Payment to which the Employee is entitled under that, except as specifically described in this Section 7 is conditioned upon 7, all of the Executive's rights to any compensation, benefits (other than base salary earned through the date of termination of employment and subject any benefits due or accrued prior to termination of employment in accordance with the Employee’s executing and delivering the general release applicable employee benefit plans of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company or applicable law), bonuses or severance from the Company or any portion Affiliate after termination of the Severance Payment that has been paid to him pursuant to Section 7Employment Term shall cease upon such termination.
Appears in 2 contracts
Sources: Employment Agreement (AMH Holdings, Inc.), Employment Agreement (Associated Materials Inc)
Severance. (a) If the Company terminates Employee’s Executive's employment with the Company without Cause and the Employment Term terminate by reason of termination by the Executive of his employment for Good Reason or termination by the Company of the Executive's employment, including as a result of notice of nonrenewal of the Employment Term by the Company in accordance with Section 6(c) prior 3 hereof, and such termination is not for Cause or Non-Performance and is not due to the expiration of the Initial TermDisability or death, the Company shall pay Employee have no liability or further obligation to the Executive except as follows: the Executive shall be entitled to receive (i) within thirty (30) days of such termination of employment, any earned but unpaid Base Salary and any unreimbursed business expenses payable pursuant to Section 4(g) for the period prior to termination and any unpaid Performance Bonus for any prior completed fiscal year (the "Entitlements"); (ii) within thirty (30) days of such termination of employment, a severance payment an amount equal to twelve months two hundred percent (200%) of Employee’s the sum of (x) the Executive's then-current annual Base Salary as in effect on and (y) the Performance Bonus earned by the Executive for the immediately preceding fiscal year (the "Severance Payment"); provided that, notwithstanding anything to the contrary set forth herein, prior to the first anniversary date of terminationthis Agreement, subject the Severance Payment shall be deemed to subsections (c) be $1,120,000; and (diii) at the time provided in such plan, any rights to which he is entitled in accordance with plan provisions under any employee benefit plan, program or arrangement, or any fringe benefit, incentive or stock option plan of the Company in which he participates at the time of such termination ("Rights"). As a condition of receiving the payments provided for under this Section 9(a), the Executive agrees to execute a release releasing the Company and any of its affiliates from any and all obligations and liabilities to the Executive arising from or in connection with the Executive's employment or termination of employment with the Company and any of its affiliates and any disagreements with respect to such employment, except that such release shall not release the Company from its obligation to pay the Executive the Entitlements, the Severance Payment, and the Rights provided for in this Section 9(a).
(b) If during the Term Employment Term, the Executive's employment is terminated for any reason other than as provided in Section 9(a) (including death, termination of this Agreement there is the Executive by the Company for Cause, Non-Performance or Disability or termination by the Executive without Good Reason or his delivery of a CC Terminationnotice of nonrenewal in accordance with Section 3 hereof), then the Employee will Company shall have no liability or further obligation to the Executive except as follows: the Executive (and his estate or designated beneficiaries under any Company-sponsored employee benefit plan in the event of his death) shall be entitled to a severance payment (in addition to receive any other rights Entitlements and other amounts payable to any Rights at the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); time provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreementrelevant plans.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 2 contracts
Sources: Employment Agreement (Auster Charles), Employment Agreement (Infocrossing Inc)
Severance. (a) If the Company terminates Employee’s employment with the Company without Cause in accordance with Section 6(c) prior to the expiration of the Initial Term, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of the Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 2 contracts
Sources: Employment Agreement (Alpha Modus Holdings, Inc.), Employment Agreement (Insight Acquisition Corp. /DE)
Severance. (a) If Employee's employment is terminated by Employee or the Company terminates Employee’s employment with the Company without Cause in accordance with Section 6(c) prior to the expiration of the Initial Termfor any reason or no reason after December 31, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination1997, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment receive on the effective date of termination of Employee's employment (in the "Termination Date"), cash compensation equal to six (6) months of Employee's base salary (the "Initial Severance Payment"). In addition to any other rights and other amounts payable to the Employee under Initial Severance Payment, on the Termination Date, the 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 will deposit an amount equal to the sum of: six (i6) twelve months of Employee’s Base Salary 's base salary in effect escrow (the "Escrow Deposit") with a financial institution pursuant to an escrow agreement in form reasonably acceptable to Employee and the Company. If Employee has not obtained new employment within the six (6) month period immediately following the Termination Date, then the Escrow Agent will distribute to Employee monthly, commencing on date the seventh (7th) month anniversary of such CC the Termination (or, if greater, the highest Base Salary in effect during the three year period Date and ending on the date twelfth (12th) month anniversary of such CC Terminationthe Termination Date (the "Subsequent Payment Period") an amount equal to one-sixth (1/6th) of the Escrow Deposit (the "Subsequent Severance Payments"); provided, that the Subsequent Severance Payments shall be reduced, on a dollar for dollar basis, to the extent Employee receives compensation for services rendered to another person or entity during the Subsequent Payment Period (the "Offset Amounts"). The Offset Amounts, if any, shall be distributed by the Escrow Agent to the Company. Notwithstanding the foregoing, in the event that the severance and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable other benefits provided for in this Agreement to Employee pursuant to this constitute "parachute payments" within the meaning of Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (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 280G of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is and, but for this Section 5, would be subject to the excise tax imposed by Section 409A 4999 of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise aggregate amount of such payments and benefits payable pursuant to this Agreement.
Section 5 shall be reduced such that the present value thereof (das determined under the Code and the applicable regulations) is equal to 2.99 times the Employee's "base amount" as defined in Section 280G(b)(3) of the Code. If Employee's employment is terminated by Employee acknowledges and agrees or the Severance Payment Company for any reason or no reason prior to which the December 31, 1997, Employee is will not be entitled under to receive any severance payments pursuant to this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 75.
Appears in 2 contracts
Sources: Employment Agreement (Cellpro Incorporated), Employment Agreement (Cellpro Incorporated)
Severance. (a) If 6.1 In the event of a termination of the Executive’s employment by the Company terminates Employee’s employment with for Cause, by the Company Executive without Cause in accordance with Section 6(c) prior Good Reason, due to the expiration of the Initial Term or as a result of the Executive’s death, the Executive shall be entitled to (i) his Base Salary earned but unpaid through and including the date of the termination of his employment, (ii) any unpaid bonus that is earned and accrued for any completed Fiscal Year, and (iii) any benefits or payments to which the Executive is entitled under any Company plan, program, agreement, or policy (collectively, “Accrued Amounts”).
6.2 In the event the Executive’s employment is terminated as a result of a Change in Control (as defined below) as determined by the Board in its sole discretion, by the Company without Cause (which does not include termination due to expiration of the Term) or by the Executive for Good Reason during the Term, the Executive shall be entitled to the Accrued Amounts and, subject to the Executive’s signing, returning to the Company and not revoking a release of claims for the benefit of the Company, in the form provided by the Company (the “Release”), the Executive shall be entitled to receive, and the Company shall be obligated to provide, the following severance benefits; provided, that, if the Executive should fail to execute such Release within 45 days following the later of (i) the Executive’s date of termination or (ii) the date the Executive actually receives an execution copy of such Release (which shall be delivered to the Executive within five (5) calendar days following the Executive’s termination date), the Company shall pay Employee a not have any obligations to provide the severance payment payments contemplated under this Section 6.2:
(a) Payment to the Executive of an amount equal to twelve months the lesser of Employee’s (i) 2.99 times the Base Salary in the year of such termination or (ii) the amount of Base Salary owed to the Executive for the remainder of the Term, in twenty-four (24) monthly payments, beginning within sixty (60) days following the termination date;
(b) Payment to the Executive of an amount equal to one hundred percent (100%) of the Bonus opportunity actually earned for the year prior to the year of termination, if any; this amount shall be paid in twenty-four (24) monthly payments, beginning within sixty (60) days following the termination date;
(c) The same level of health (i.e. medical, vision and dental) coverage and benefits as in effect for the Executive on the day immediately preceding the day of termination of employment; provided, however that (i) the Executive constitutes a qualified beneficiary, as defined in Section 4980B(g)(1) of the Code; and (ii) the Executive elects continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), within the time period prescribed pursuant to COBRA. The Company shall continue to provide the Executive with such health coverage until the earlier of (A) the date the Executive is no longer eligible to receive continuation coverage pursuant to COBRA, or (B) twelve (12) months from the termination date; and
(d) The vesting of the Option will accelerate on the date of terminationtermination as to that number of shares that would have become vested if the Executive had remained employed by the Company until the date twelve (12) months following the termination date. For avoidance of doubt, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will Executive shall not be entitled to a any severance payment (in addition benefits pursuant to any other rights and other amounts payable this Section 6.2 if his employment is terminated by the Company for Cause, by the Executive without Good Reason or due to the Employee under Executive’s death or the expiration of the Term; provided that, in the event that the Executive’s employment is terminated by the Company plans for Cause or is terminated by the Executive without Good Reason (a “Discretionary Severance Event”), the Board (without the Executive’s participation), in which Employee is a participantits sole and absolute discretion, but without duplication for any amounts due may choose to Employee pursuant to Section 7(a)) payable in a lump sum in cash in pay the Executive an amount equal to the sum of: (i) twelve months of Employee’s Base Salary the payments referred to in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c6.2(a) and (d).
b) above, payable in twenty-four (c24) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum monthly payments, beginning within sixty (60) days after following the date Employee’s employment is terminated giving rise termination date. Notwithstanding anything in this Section 6.2 to such Severance Payment pursuant the contrary, in the event the 60 day post-termination period, during which the payments referred to Section 7(ain subsections 6.2(a) or and (b); provided that Employee executes ) above are required to be made, begins in one taxable year of the Executive and delivers ends in a second taxable year of the release contemplated by Section 7(dExecutive, the payments referred to in subsections 6.2(a) and such release becomes effective and irrevocable. If such sixty (60b) day period spans two calendar years, the Severance Payment will above shall be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code taxable year (and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreementwithin such 60 day period).
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 2 contracts
Sources: Employment Agreement (FriendFinder Networks Inc.), Employment Agreement (FriendFinder Networks Inc.)
Severance. (a) If the Company terminates EmployeeExecutive has a Separation from Service as a result of Executive’s employment with discharge by the Company without Cause or by reason of Executive’s resignation for Good Reason, in accordance with Section 6(ceither case (x) within eighteen (18) months following a Change in Control or (y) two (2) months prior to the expiration of the Initial Terma Change in Control, the Company Executive shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a receive, in lieu of any severance payment benefits to which Executive may otherwise be entitled under any severance plan or program of the Company, the benefits provided below, which, with respect to clause (in addition to any other rights ii) and other amounts payable to the Employee under Company plans in which Employee is a participantlast sentence of clause (iii) below, but without duplication for any amounts due to Employee pursuant to Section 7(a)) will be payable in a lump sum within ten (10) days following the effective date of Executive’s Release, but in cash no event later than two and one-half (2 1/2) months following the last day of the calendar year in which the date of Executive’s Separation from Service occurs:
(i) The Company shall pay to Executive his or her fully earned but unpaid base salary, when due, through the date of Executive’s Separation from Service at the rate then in effect, plus all other the benefits, if any, under any Company group retirement plan, nonqualified deferred compensation plan, equity award plan or agreement (other than any such plan or agreement pertaining to Stock Awards whose treatment is prescribed by Section 3(a)(iii) below), health benefits plan or other Company group benefit plan to which Executive may be entitled pursuant to the terms of such plans or agreements at the time of Executive’s Separation from Service;
(ii) Subject to Section 3(c) and Executive’s continued compliance with Section 4, Executive shall be entitled to receive severance pay in an amount equal to the sum of: _________ (i___%) twelve months of EmployeeExecutive’s Base Salary aggregate annual base salary and target annual cash bonus as in effect on immediately prior to the date of such CC Termination Executive’s Separation from Services;
(iii) Subject to Section 3(c) and Executive’s continued compliance with Section 4, for the period beginning on the date of Executive’s Separation from Service and ending on the date which is eighteen (18) full months following the date of Executive’s Separation from Service (or, if greaterearlier, the highest Base Salary in effect during date on which the three year applicable continuation period ending on under COBRA expires), the Company shall arrange to provide Executive and his or her eligible dependents who were covered under the Company’s health insurance plans as of the date of Executive’s Separation from Service with health (including medical and dental) insurance and other benefits substantially similar to those provided to Executive and his dependents immediately prior to the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocableSeparation from Service. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee Company is a “specified employee” as defined in regulations not reasonably able to continue health insurance benefits coverage under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment insurance plans, the Company shall provide substantially equivalent coverage under other third-party insurance sources reasonably acceptable to Executive. If any of the Company’s health benefits are self-funded as of the date that is more than six of Executive’s Separation from Service, instead of providing continued health insurance benefits as set forth above, the Company shall instead pay to Executive an amount equal to eighteen (618) months multiplied by the Severance Payment is otherwise payable monthly premium Executive would be required to pay for continuation coverage pursuant to this Agreement.the COBRA for Executive and his or her eligible dependents who were covered under the Company’s health plans as of the date of Executive’s Separation from Service (calculated by reference to the premium as of the date of Separation from Service);
(div) Employee acknowledges Subject to Section 3(c) and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon EmployeeExecutive’s continued compliance with Sections 8-11 Section 4, the vesting and/or exercisability of each of Executive’s outstanding Stock Awards shall be accelerated in full effective as of the date of Executive’s Separation from Service. Nothing in this Section 3(a)(iv) shall be construed to limit any more favorable vesting applicable to Executive’s Stock Awards in the Company’s equity plan(s) and/or the stock award agreements under which the Stock Awards were granted. The foregoing provisions are hereby deemed to be a part of each Stock Award and to supersede any less favorable provision in any agreement or plan regarding such Stock Award; and
(v) Notwithstanding any other provision of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return Agreement to the contrary, any severance benefits payable to Executive under this Agreement shall be reduced by any severance benefits payable by the Company any portion or an affiliate of the Severance Payment that has been paid Company to him pursuant to Section 7such individual under any other policy, plan, program, agreement or arrangement, including, without limitation, any severance agreement between such individual and any entity.
Appears in 1 contract
Severance. In exchange for and conditioned upon Employee’s continued employment through December 31, 2011 and execution of a Supplemental Release within two weeks of the Separation Date, the form of which is attached hereto as Exhibit A (a) If the “Supplemental Release”), the Company terminates agrees to:
a. pay Employee a lump sum equivalent to one (1) year of Employee’s employment base salary, for a total of Two Hundred Ninety Thousand Dollars ($290,000), less applicable withholding (the “Severance Payment”) within ten (10) business days after the Effective Date of the Supplemental Release;
b. subject to the Compensation Committee’s approval, Employee’s vesting with respect to those unvested Options outstanding as of the Separation Date shall accelerate so that all Options shall be considered fully vested on January 1, 2012, and that all Options shall remain exercisable for a period of twelve (12) months following the Separation Date, but in no event past the expiration date of each Option. All shares of Company common stock, and each Option, shall continue to be subject to all other terms of the applicable Stock Option Agreement;
c. reimburse Employee for the payments Employee makes for COBRA coverage for a period of six (6) months from the Separation Date, or until Employee has secured other employment, whichever occurs first, provided Employee timely elects and pays for continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), within the time period prescribed pursuant to COBRA (“COBRA Reimbursements”). COBRA Reimbursements shall be made by the Company to Employee consistent with the Company without Cause in accordance with Section 6(c) prior Company’s normal expense reimbursement policy, provided that Employee submits documentation to the expiration Company substantiating his payments for COBRA coverage. Notwithstanding the foregoing, if the Company determines in its sole discretion that it cannot provide the COBRA Reimbursements without violating applicable law (including, without limitation, Section 2716 of the Initial TermPublic Health Service Act), the Company shall pay in lieu thereof provide Employee a severance payment taxable lump sum payment, within fifteen (15) calendar days following the Separation Date, in an amount equal to twelve months of the total COBRA premium that Employee would be required to pay to continue Employee’s Base Salary as group health plan coverage under COBRA at the rate in effect on the date of termination, subject to subsections (c) and (d)the Separation Date.
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 1 contract
Sources: Transition Agreement and Release
Severance. (a) If In the Company terminates Employeeevent of termination of Executive’s employment with (i) by the Company without Cause or (ii) by Executive for Good Reason and subject to Executive’s signing and not revoking a general release of claims with the Company in accordance with Section 6(c) prior a form satisfactory to the expiration Company, Executive shall receive, as partial consideration for the covenants of Executive set forth in the Initial Termagreement referenced in Section 6 hereof, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)“Severance Benefit”) payable in a lump sum in cash in an amount equal to eighteen (18) month’s base salary. The Company shall pay the sum of: Severance Benefit to Executive in semi-monthly installments to be paid on each of the 15th and last business day of each calendar month commencing in the month immediately following the date of termination of Executive’s employment, each such semi-monthly installment to be equal to two weeks’ base salary. Executive shall also continue to be entitled to receive all Company medical and dental insurance, life insurance and disability insurance benefits to which Executive was entitled as of the date of termination (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 same terms and conditions which applied immediately prior to the date of Executive’s termination, for the shorter of (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination eighteen (or18) months, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and or (ii) the Employee’s Average Annual Bonus, subject until Executive obtains comparable coverage from another employer. The Company shall also pay to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment Executive any payments due pursuant to Section 7(a5(g) or hereof. Notwithstanding the foregoing, Executive agrees that the Severance Benefit and Continuing Benefits shall be paid in accordance with Section 409A (b); provided that Employee executes “Code Section 409A”) of the Internal Revenue Code of 1986, as amended, and delivers agrees that, to the release contemplated by extent required in order to avoid the imposition on Executive of any excise tax under Code Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years409A, 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 initial payment of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A Benefit or Continuing Benefits may be delayed for a period of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months following the Severance Payment is otherwise payable date of Executive’s termination of employment. In the event that the Company elects not to renew this Agreement pursuant to this Agreement.
(dSection 5(a) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar yearshereof, the Severance Payment will Benefit and the Continuing Benefits specified above in this Section 5(e) shall apply but, wherever “eighteen (18) months” appears, it shall be paid in the second calendar year. Employee’s right amended to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7read as “fifteen (15) months”.
Appears in 1 contract
Severance. In no way limiting the Company’s policy of employment at will:
(a) If the Company terminates Employee’s employment with the Company is terminated by the Company without Cause in accordance or by Employee with Section 6(c) Good Reason prior to the expiration Expiration Date (but not in connection with a Change of Control which is subject to Section 5(b)), and provided that all of the Initial Term, following have occurred within 60 days following the Company shall pay Employee a severance payment an amount equal to twelve months termination of Employee’s employment with the Company: (i) Employee first signs and delivers to the Company a Confidential Severance and Release Agreement in substantially the same form as that attached hereto as Exhibit B (the “Release Agreement”), (ii) any revocation right of the Employee under such Release Agreement shall have expired, and (iii) such Release Agreement shall have become effective (the date that all of the conditions set forth in (i), (ii) and (iii) above are met to be referred to as the “Release Date”), Employee shall be entitled to receive:
(i) Severance compensation equal to two-thirds of his annual Base Salary as and Target Bonus in effect on for the date year in which the Termination Date occurs, payable in eight monthly installments equal to one-eighth of terminationsuch severance compensation, subject to subsections required withholding, payable at the end of each of the next eight (c8) full calendar months following the first full calendar month following the Release Date;
(ii) and (d)Coverage at Company expense under the employee health insurance plan of the Company for period of twenty-four months following the Release Date, or, if less, the maximum time period permitted under COBRA.
(b) If during within 3 months before or six months after a Change of Control Employee’s employment with the Term of this Agreement there Company is a CC Terminationterminated (i) by the Company without Cause or (ii) by Employee for any reason, then the Employee will shall be entitled to a receive 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 compensation equal to the greater of (A) two-thirds of the sum of: (i) twelve months of Employee’s his annual Base Salary and Target Bonus in effect on date for the year in which the Termination Date occurs or (B) two-thirds of such CC Termination (or, if greater, the highest sum of his annual Base Salary and Target Bonus in effect during for the three year in which the Termination Date occurs, annualized over the period ending on from the date Termination Date until the Expiration Date, which shall be payable immediately upon such termination. “Change of such CC Termination), and (ii) Control” shall have the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise meaning given to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made term in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A 2010 Long-Term Incentive Plan of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 1 contract
Severance. (a) If the Company terminates EmployeeExecutive has a Separation from Service as a result of Executive’s employment with discharge by the Company without Cause or by reason of Executive’s resignation for Good Reason, in accordance with Section 6(ceither case within eighteen (18) prior to the expiration of the Initial Termmonths following a Change in Control, the Company Executive shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a receive, in lieu of any severance payment benefits to which Executive may otherwise be entitled under any severance plan or program of the Company, the benefits provided below, which, with respect to clause (in addition to any other rights ii) and other amounts payable to the Employee under Company plans in which Employee is a participantlast sentence of clause (iii) below, but without duplication for any amounts due to Employee pursuant to Section 7(a)) will be payable in a lump sum within ten (10) days following the effective date of Executive’s Release, but in cash no event later than two and one-half (2 1/2) months following the last day of the calendar year in which the date of Executive’s Separation from Service occurs:
(i) The Company shall pay to Executive his or her fully earned but unpaid base salary, when due, through the date of Executive’s Separation from Service at the rate then in effect, plus all other the benefits, if any, under any Company group retirement plan, nonqualified deferred compensation plan, equity award plan or agreement (other than any such plan or agreement pertaining to Stock Awards whose treatment is prescribed by Section 3(a)(iii) below), health benefits plan or other Company group benefit plan to which Executive may be entitled pursuant to the terms of such plans or agreements at the time of Executive’s Separation from Service;
(ii) Subject to Section 3(c) and Executive’s continued compliance with Section 4, Executive shall be entitled to receive severance pay in an amount equal to the sum of: two hundred and seventy-five percent (i275%) twelve months of Employeemultiplied by Executive’s Base Salary annual base salary as in effect on immediately prior to the date of such CC Termination Executive’s Separation from Service;
(iii) Subject to Section 3(c) and Executive’s continued compliance with Section 4, for the period beginning on the date of Executive’s Separation from Service and ending on the date which is eighteen (18) full months following the date of Executive’s Separation from Service (or, if greaterearlier, the highest Base Salary in effect during date on which the three year applicable continuation period ending on under COBRA expires), the Company shall arrange to provide Executive and his or her eligible dependents who were covered under the Company’s health insurance plans as of the date of Executive’s Separation from Service with health (including medical and dental) insurance benefits substantially similar to those provided to Executive and his dependents immediately prior to the date of such CC TerminationSeparation 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, instead of providing continued health insurance benefits as set forth above, the Company shall instead pay to Executive an amount equal to eighteen (18) multiplied by the monthly premium Executive would be required to pay for continuation coverage pursuant to the COBRA for Executive and his or her eligible dependents who were covered under the Company’s health plans as of the date of Executive’s Separation from Service (calculated by reference to the premium as of the date of Separation from Service);
(iv) Subject to Section 3(c) and Executive’s continued compliance with Section 4, the vesting and/or exercisability of each of Executive’s outstanding Stock Awards shall be accelerated in full effective as of the date of Executive’s Separation from Service. Nothing in this Section 3(a)(iv) shall be construed to limit any more favorable vesting applicable to Executive’s Stock Awards in the Company’s equity plan(s) and/or the stock award agreements under which the Stock Awards were granted. The foregoing provisions are hereby deemed to be a part of each Stock Award and to supersede any less favorable provision in any agreement or plan regarding such Stock Award;
(v) In the event that (A) Executive’s Separation from Service occurs in connection with or following a separation of the Company’s Imaging & Optics business (the “I&O Business”) from the other businesses of the Company through an initial public offering, merger or other sale transaction, spin-off or a split-off of the I&O Business, or a combination of some or all of these transactions (collectively, a “Separation Event”), and (iiB) in connection with or following such Separation Event, Executive is offered employment with the Employee’s Average Annual Bonusentity continuing the I&O Business, subject or any parent or subsidiary thereof, then (1) Executive shall not be entitled to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to any payments or benefits under this Section 7 3(a) as a result of such Separation from Service, regardless of the circumstances of such Separation from Service, (2) any such Separation from Service shall be treated in the same manner as a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employeetermination of Executive’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A 3(b) below for purposes of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on determining the Company’s first payroll payment date that is more than six financial or further obligations to Executive upon such termination of employment, and (63) months the Severance Payment is otherwise payable pursuant to this Agreement.Agreement shall terminate upon Executive’s Separation from Service; and
(dvi) Employee acknowledges and agrees Notwithstanding any other provision of this Agreement to the Severance Payment contrary, any severance benefits payable to which the Employee is entitled Executive under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit B Agreement shall be reduced by any severance benefits payable 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 Company or an affiliate of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company to such individual under any portion of the Severance Payment that has been paid to him pursuant to Section 7other policy, plan, program, agreement or arrangement, including, without limitation, any severance agreement between such individual and any entity.
Appears in 1 contract
Sources: Change in Control Severance Agreement (Tessera Technologies Inc)
Severance. (a) If the Company terminates Employee’s the Executive's employment with without "cause" pursuant to Section 4(c) above (other than following a Change of Control, which is subject to Section 5) or the Executive's employment terminates as a result of a Notice of Non-Extension provided to the Executive by the Company without Cause pursuant to Section 2 above, then, subject to the Executive's execution of the Release attached hereto as Exhibit A (or in a substantially similar form as the Company deems necessary in order to comply with then applicable law) (the "Release") and the Release becoming effective in accordance with Section 6(cits terms not later than the sixtieth (60th) prior to day following the expiration Executive's termination of the Initial Termemployment, the Company Executive shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a receive the following severance payment benefits: (in addition to any other rights i) as severance payments, the sum of (A) one (1) year of his then Base Salary and other amounts payable to (B) the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: Executive's Target Bonus for the calendar year in which the Executive's termination of employment occurs, payable over a twelve (i12) twelve months of Employee’s Base Salary month period in accordance with the Company's payroll schedule in effect on date of such CC Termination from time to time (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination"Severance Payments"), and (ii) to the Employee’s Average Annual Bonusextent he is then a participant in the Company's health insurance plan and eligible for benefits under plan terms, subject and only if the benefit under this clause (ii) does not cause the Company to subsections fail to satisfy the requirements of, or be in violation of, Section 2716 of the Public Health Service Act or Section 9815 of the Internal Revenue Code of 1986, as amended (cthe "Code"), 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) (the "COBRA Payments") (such Severance Payments and COBRA Payments being the Executive's sole entitlement upon any such termination). Notwithstanding the foregoing, if the Company's payments under Section 4(e)(ii) (dand under Section 5(ii) below) would violate the nondiscrimination rules applicable to non-grandfathered, insured group plans under the Affordable Care Act (the "ACA").
, or result in the imposition of penalties under the ACA and the related regulations and guidance promulgated thereunder, the parties agree to reform Section 4(e)(ii) (cand Section 5(ii) Any below) in a manner as is necessary to comply with the ACA. Subject to the last paragraph of this Section 4(e), the Severance Payments and the COBRA Payments, or the Enhanced COBRA Payments (as defined in Section 5 below) will commence on the sixtieth (60th) day following the Executive's termination of employment with the first payment inclusive of any payments that would have been otherwise payable during such initial sixty (60)-day period. Subject only to the Executive's delivery of an executed Release and such Release becoming effective within the provided sixty (60)-day period, the Company's obligation under this Section 4(e) shall be absolute and unconditional, and the Executive shall be entitled to such severance payment payable benefits regardless of the amount of compensation and benefits the Executive may earn or be entitled to Employee with respect to any other employment he may obtain during the period for which severance payments are payable. If the Executive's employment with the Company is terminated pursuant to this Section 7 (a “Severance Payment”Sections 4(a) will be made in a lump sum within sixty (60or 4(b) days after above, if the date Employee’s Company terminates the Executive's employment is terminated giving rise to such Severance Payment with "cause" pursuant to Section 7(a4(c) above, if the Executive terminates his employment pursuant to Section 4(d) above, or (b); if the Executive's employment terminates as a result of a Notice of Non-Extension provided that to the Company by the Executive, then the Executive shall not be entitled to any further payments under this Agreement, including Base Salary, Bonus, Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar yearsBenefits, the Severance Payments, COBRA Payments, Enhanced Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” (as defined in regulations Section 5 below), or Enhanced COBRA Payments (as defined in Section 5 below) except as otherwise required by applicable law, including the payment of any amounts owed to the Executive and any obligation that the Company may have to offer the Executive continued benefit plan participation. To the extent that any amount payable under this Agreement constitutes an amount payable under a "nonqualified deferred compensation plan" (as defined in Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” (hereinafter, "Code Section 409A")) that is subject not exempt from Code Section 409A, and such amount is payable as a result of a "separation from service" (as defined in Code Section 409A), including any amount payable under this Section 4 or Section 5 below, then, notwithstanding any other provision in this Agreement to Section 409A of the Codecontrary, the Severance Payment such payment will not be made on to the Company’s first payroll payment Executive until the day after the date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit B by the 45th day following the Employee’s his separation from service (the "Specified Employee Payment Date"), but only if, as of his separation from service, he is a "specified employee" under Code Section 409A and not revoking any relevant procedures that the release within Company may establish. For the seven (7) days after executing and delivering avoidance of doubt, on the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar yearsSpecified Employee Payment Date, the Severance Payment Executive will be paid in a single lump sum all payments that otherwise would have been made to him under this Agreement during the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 six (6)-month period but were not made because of this Agreementparagraph. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he This paragraph will immediately return to not be applicable after the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7Executive’s death.
Appears in 1 contract
Sources: Employment Agreement (ORBCOMM Inc.)
Severance. (a) If the Company terminates EmployeeExecutive has a Separation from Service as a result of Executive’s employment with discharge by the Company without Cause in accordance with Section 6(c) prior to the expiration or by reason of the Initial TermExecutive’s resignation for Good Reason, the Company Executive shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment receive the benefits provided below, which, with respect to clause (in addition to any other rights ii) and other amounts payable to the Employee under Company plans in which Employee is a participantlast sentence of clause (iii) below, but without duplication for any amounts due to Employee pursuant to Section 7(a)) will be payable in a lump sum within ten (10) days following the effective date of Executive’s Release, but in cash no event later than two and one-half (2 1/2) months following the last day of the calendar year in which the date of Executive’s Separation from Service occurs:
(i) The Company shall pay to Executive his or her fully earned but unpaid base salary, when due, through the date of Executive’s Separation from Service at the rate then in effect, plus all other the benefits, if any, under any Company group retirement plan, nonqualified deferred compensation plan, equity award plan or agreement (other than any such plan or agreement pertaining to Stock Awards whose treatment is prescribed by Section 3(a)(iii) below), health benefits plan or other Company group benefit plan to which Executive may be entitled pursuant to the terms of such plans or agreements at the time of Executive’s Separation from Service;
(ii) Subject to Section 3(c) and Executive’s continued compliance with Section 4, Executive shall be entitled to receive severance pay in an amount equal to the sum of: one hundred percent (i100%) twelve months of EmployeeExecutive’s Base Salary aggregate annual base salary and target annual cash bonus as in effect on immediately prior to the date of such CC Termination Executive’s Separation from Service;
(iii) Subject to Section 3(c) and Executive’s continued compliance with Section 4, for the period beginning on the date of Executive’s Separation from Service and ending on the date which is eighteen (18) full months following the date of Executive’s Separation from Service (or, if greaterearlier, the highest Base Salary in effect during date on which the three year applicable continuation period ending on under COBRA expires), the Company shall arrange to provide Executive and his or her eligible dependents who were covered under the Company’s health insurance plans as of the date of Executive’s Separation from Service with health (including medical and dental) insurance and other benefits substantially similar to those provided to Executive and his dependents immediately prior to the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocableSeparation from Service. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee Company is a “specified employee” as defined in regulations not reasonably able to continue health insurance benefits coverage under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment insurance plans, the Company shall provide substantially equivalent coverage under other third-party insurance sources reasonably acceptable to Executive. If any of the Company’s health benefits are self-funded as of the date that is more than six of Executive’s Separation from Service, instead of providing continued health insurance benefits as set forth above, the Company shall instead pay to Executive an amount equal to eighteen (618) months multiplied by the Severance Payment is otherwise payable monthly premium Executive would be required to pay for continuation coverage pursuant to this Agreement.the COBRA for Executive and his or her eligible dependents who were covered under the Company’s health plans as of the date of Executive’s Separation from Service (calculated by reference to the premium as of the date of Separation from Service);
(div) Employee acknowledges Subject to Section 3(c) and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon EmployeeExecutive’s continued compliance with Sections 8-11 Section 4, the vesting and exercisability of such portion of Executive’s outstanding Stock Awards as would have vested in accordance with the terms of the applicable award agreement during the twelve (12) months following the date of Executive’s Separation from Service shall be accelerated effective as of the date of Executive’s Separation from Service. Nothing in this Section 3(a)(iv) shall be construed to limit any more favorable vesting applicable to Executive’s Stock Awards in the Company’s equity plan(s) and/or the stock award agreements under which the Stock Awards were granted. The foregoing provisions are hereby deemed to be a part of each Stock Award and to supersede any less favorable provision in any agreement or plan regarding such Stock Award; and
(v) Notwithstanding any other provision of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return Agreement to the contrary, any severance benefits payable to Executive under this Agreement shall reduce any severance benefits payable by the Company any portion or an affiliate of the Company to Executive under the Change in Control Severance Payment that has been paid to him pursuant to Section 7Agreement (as defined below) between Executive and the Company.
Appears in 1 contract
Sources: Severance Agreement (Viasat Inc)
Severance. (a) If Subject to the limitations set forth in Section 13, if the Employee's employment is terminated by the Subsidiary without Substantial Cause (including, without limitation, upon termination of this Agreement following notice thereof by the Company terminates Employee’s employment or the Subsidiary pursuant to Section 3 hereof) or by the Employee for Good Reason, then, without further liability of the Subsidiary or the Company, except for their obligations pursuant to this Section 10(a) and their obligations to pay or provide any salary and expenses accrued to the termination date, any unpaid bonus referred to in Section 4(b) hereof, any Closing Bonus (whether payable before or after such termination of employment) pursuant to Section 4(c) hereof, and such rights and benefits of participation of or in respect of the Employee under employee benefit plans, programs and arrangements of the Company, the Subsidiary and their Affiliates, in accordance with the Company without Cause terms and provisions of such plans, programs and arrangements, (i) the Employee shall be entitled to severance compensation for the Severance Period (as hereinafter defined) following any such termination, payable in equal monthly installments, subject to withholding and other applicable taxes, at an annual rate equal to the Employee's base salary for the year of termination, as such annual rate is increased from year to year in accordance with Section 6(c4(a) hereof; (ii) as additional severance compensation following any such termination, the Employee shall be entitled to the bonus compensation referred to in Section 4(b) hereof for the Severance Period, payable as and when ordinarily determined for the applicable year, with a bonus not less than seventy-five percent (75%) of his rate of annual base salary in effect for the year of termination; (iii) the Employee and the Employee's spouse and Dependent Children (as hereinafter defined) shall be entitled to medical and dental benefits as provided immediately prior to the expiration date of termination which shall continue for the Severance Period (which benefits shall be terminated sooner to the extent provided by another employer and shall be subject to coordination with Medicare payments in accordance with the terms of the Initial Term, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections applicable benefit plan); (civ) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will shall be entitled to a severance payment (receive, during the Severance Period, the benefits described in addition to any other Section 4(d) hereof and the automobile and club membership rights and other amounts payable perquisites described in Section 4(e) hereof and payment by the Subsidiary of the premiums on the Executive Life Insurance Policies as described in Section 4(e) hereof, provided, however, if any such benefit is not available to the Employee under Company plans in which Employee applicable law or the terms of any plan, program or arrangement because he is not an employee, or otherwise, the Subsidiary shall pay the Employee, within ten (10) days following such termination, a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump lump-sum in cash in an amount payment equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date value of such CC Termination benefits, and the types, terms and conditions of the benefits, rights and perquisites provided to the Employee under clauses (or, if greater, iii) and (iv) of this Section 10(a) shall be not less favorable than the highest Base Salary in effect during most favorable of (x) those provided to the three year period ending on Employee as of the date of such CC Termination), this third amendment and restatement of this Agreement and (iiy) those provided to the Employee immediately prior to the date of termination of his employment; and (v) the Employee’s Average Annual Bonus, subject Employee shall be entitled to subsections (c) and (d).
(c) Any severance payment payable to reasonable outplacement services selected by the Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after at the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocableSubsidiary's expense. 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 Following expiration of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to period within which the Employee is entitled under to receive medical and dental benefits pursuant to clause (iii) of the first sentence of this Section 7 is conditioned upon 10(a), other than by reason of receiving such benefits from another employer or coordination of such benefits with Medicare payments, the Employee shall be entitled to elect to further continue any such benefits for himself, his spouse and subject to his Dependent Children until the Employee’s executing and delivering 's death so long as the general release Employee pays the applicable premiums otherwise payable by former employees of claims in the form attached hereto as Exhibit B by Subsidiary generally for continuation coverage under 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 releaseapplicable plans. If a Change in Control occurs, and (I) at the time of such forty-five (45) day period plus the seven (7) day revocation period spans two calendar yearsoccurrence, the Severance Payment will any such severance compensation is being paid or required to be paid in the second calendar year. Employee’s right future to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 Employee or (II) such termination of employment occurs following the Change in Control, the aggregate gross severance compensation payable under clauses (i) and (ii) of this Agreement. If Employee breaches Section 10(a) for the Severance Period, or the previously unpaid portion thereof, as the case may be, shall be paid by the Company or the Subsidiary in a lump-sum cash payment, as of the date of the Change in Control (in the case of clause (I) immediately preceding) or such termination of employment (in the case of clause (II) immediately preceding) and no provision shall be made for any future increases in base salary pursuant to Section 4(a) hereof nor shall any discount be taken with regard to payments pursuant to Section 4 because of his obligations payment in Sections 8-11 a lump sum rather than as specified in clauses (i) through (iv) of this AgreementSection 10(a); provided, he will immediately return however, that, for purposes of determining the bonus compensation payable under clause (ii) of this Section 10(a), (a) if the termination occurs during the calendar year in which the Change in Control occurs, the bonus compensation with respect to such calendar year shall be determined in accordance with Section 4(b) hereof, except that the Company any actual EBITDA achieved shall be deemed to be the EBITDA for the portion of the Severance Payment that has been paid calendar year through the date of the transaction giving rise to him pursuant to Section 7.the Change in Control, and such EBITDA shall be annualized if necessary by multiplying such EBITDA by a factor of 365 divided by the number of days of the
Appears in 1 contract
Severance. (ai) If the Company terminates Employee’s employment with the Company without Cause in accordance with Section 6(c) prior to the expiration of the Initial TermIf, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there Employment Agreement, (i) the Company terminates Executive without Cause, or (ii) Executive resigns for Good Reason, then, upon Executive’s Termination of Employment (as defined below), the Company shall (in lieu of any other severance benefits under any of the Company employee benefit plans, programs or policies): (x) if and only if the Company is on target to meet at least 100% of Annual Budget for the year in which Executive’s Termination of Employment occurs, pay to Executive a CC Termination, then prorated portion of the Employee will Annual Bonus to which Executive would otherwise be entitled for the year of termination (if any) calculated at the end of such year and paid on the same date on which annual bonuses are paid to other executives of the Company; and (y) continue to pay Executive’s Base Salary at the time of such termination for a severance payment period of fifteen (in addition 15) months following such Termination of Employment (the “Severance Period”), plus, if Executive achieved at least 100% of the Target Bonus for the year prior to any other rights Executive’s Termination of Employment, and other amounts payable the Company is on target to meet at least 100% of the Employee under Company plans Annual Budget for the year in which Employee is a participantExecutive’s Termination of Employment occurs, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in the Company will also pay Executive an amount equal to the sum of: 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. Such severance amounts provided in clause (y) above will be paid in accordance with the Company’s normal payroll practices, subject to such withholding and other taxes as may be required or as otherwise permissible under the Company’s practices or policies.
(ii) The Company shall have no obligation to make any severance payments § 4(c)(i) if (i) twelve months Executive violates any of Employee’s Base Salary in effect on date the provisions of such CC Termination (or§ 5 of this Employment Agreement, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the EmployeeCompany chooses not to renew this Employment Agreement either at the expiration of its initial term or at any point thereafter, or (iii) Executive does not execute and deliver (without revoking) to the Company a general release in the form attached to this Employment Agreement as Exhibit A (the “Release”) following Executive’s Average Annual Bonus, subject to subsections (c) and (d)Termination of Employment.
(ciii) Any Executive waives Executive’s rights, if any, to have the payments provided for under this § 4(c) taken into account in computing any other benefits payable to, or on behalf of, Executive by the Company.
(iv) Notwithstanding anything to the contrary in this Employment Agreement, if a Change in Control (as defined in the NCP-ATK Holdings, Inc. 2010 Stock Option Plan) occurs, neither the Company, nor any current and/or future entity that controls, is controlled by or is under common control with the Company (collectively, “Affiliates”), nor any acquirer of the Company or any Affiliate of the Company will have any obligation to make severance payment payable to Employee pursuant to payments under this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employeeconnection with such Change in Control unless Executive’s employment is terminated giving rise to without Cause or Executive resigns for Good Reason following such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made Change in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this AgreementControl.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 1 contract
Severance. (ai) If With respect to each Transferred Employee whose employment is terminated by Purchaser or one of its Affiliates during the Company terminates Employee’s eighteen (18) month period immediately following the Lease End Date (or, in the case of Foreign Employees, the twenty-four (24) month period immediately following the Lease End Date), Purchaser shall provide severance benefits to each such employee which are no less favorable than those provided under the standard, country specific, non-restructuring severance policy of Sellers in effect as of the date of this Agreement, a copy of which is attached hereto on Schedule 10.2(b)(i).
(ii) To the extent that Conopco and its Affiliates are required to pay severance benefits to a number of Business Employees in excess of a maximum number of Business Employees determined in accordance with Schedule 10.2(b)(ii) (such maximum number, the "Maximum Number", and such excess number, the "Excess Number"), Purchaser shall pay to Conopco, no later than the earlier of August 1, 2001 or the thirtieth day following the last day on which any Leased Employee ceases to be a Leased Employee under the terms of the Employee Lease Agreement, an amount equal to (A) the average severance required to be paid by Conopco and its Affiliates to all Business Employees (which, for the avoidance of doubt, is not just the Excess Number of Business Employees) entitled to severance benefits, multiplied by (B) the Excess Number; provided, however, that if a Foreign Employee is nevertheless entitled to receive severance benefits pursuant to applicable Laws, notwithstanding that Purchaser has made an offer of employment to such Foreign Employee in accordance with the Company without Cause provisions of this Article X, then (i) Conopco and its Affiliates shall be solely liable for severance benefits to such Foreign Employee and (ii) any such Foreign Employee shall be disregarded for purposes of determining under this Section 10.2(b)(ii) the number of Business Employees to whom Conopco and its Affiliates have provided severance benefits. With respect to Foreign Employees described in the last sentence of Section 10.1(a), to the extent that Purchaser is required to hire or continue the employment of Foreign Employees at the Closing Date due to foreign Laws (such Foreign Employees being deemed Transferred Employees in accordance with Section 6(c10.1(b)) and Purchaser terminates the employment of such Foreign Employees on or prior to the expiration last day on which any Leased Employee ceases to be a Leased Employee under the terms of the Initial TermEmployee Lease Agreement, the Company such terminated Transferred Employees shall pay Employee a severance payment an amount equal to twelve months not be disregarded but shall be counted for purposes of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled determining under this Section 7 is conditioned upon 10.2(b)(ii) the number of Business Employees to whom Conopco and subject to its Affiliates have provided severance benefits (and therefore shall be counted toward the Employee’s executing Maximum Number and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion calculation of the Severance Payment that has been paid to him pursuant to Section 7Excess Number).
Appears in 1 contract
Severance. (a) If the Company terminates Employee’s employment with Employment Period is terminated by the Company without Cause in accordance with Section 6(cor by you for Good Reason, you will be entitled to receive:
(i) prior to the expiration of the Initial Term, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s your Base Salary as in effect on at the date time of termination, subject such termination to subsections the extent such amount has accrued through the Termination Date (cas defined in Section 5(f) below) and remains unpaid, any fully earned and declared but unpaid Target Incentive Bonus as of the Termination Date, and any unpaid Expenses that have not been reimbursed by the Company as of the Termination Date that were incurred prior to the Termination Date (dthe sum of these amounts, the “Accrued Obligations”).;
(bii) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to three fourths (.75x) one year of your Base Salary, less applicable withholdings, which shall be payable in the sum of: same amounts and at the same intervals as if the Employment Period had not ended; and
(iiii) twelve months if you timely elect continued coverage pursuant to COBRA, payment of Employeeyour share of the premium cost, based on your pre-Termination Date coverage selection, for the 9-month period following the Termination Date. The Company’s Base Salary obligation to make the payments to you described in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and clauses (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(ciii) Any severance payment payable to Employee pursuant to of this Section 7 (a “Severance Payment”5(a) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s your executing and delivering delivering, no later than 45 days following the general Termination Date (and not revoking), a release relating to your employment by the Company in favor of claims the Company, the Company Affiliates and their respective stockholders, officers, members, managers, directors, employees, subsidiaries and affiliates substantially in the form attached hereto as Exhibit B by (a “Release”); provided, further, that until the 45th day following period to revoke such Release has expired, the Employee’s separation from service and not revoking Company shall retain any Base Salary installment payment that would otherwise be made pursuant to clause (ii) of this Section 5(a), with such payment being made on the release within the seven (7) days next regularly scheduled payroll date after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7expires.
Appears in 1 contract
Severance. (a) If In connection with the Company terminates Employeetermination of the Executive’s employment on the Separation Date, Executive shall be entitled to the following severance payments and benefits, consisting of (i) (A) earned but unpaid base salary (B) any earned but unpaid bonus for which the performance measurement period has ended prior to the Separation Date, (C) any accrued but unused vacation as of the Separation Date, and (D) unreimbursed but substantiated business expenses, in each case, payable as a lump sum within five (5) days of the Separation Date; and subject to Section 2(f), Section 2(g), Section 2(h) and continued compliance with Section 1(c) herein, Executive shall be entitled to (ii) continuation of the Company without Cause Executive’s monthly base salary (at the rate of $54,187.50 per month) in accordance with Section 6(cthe Company’s normal payroll practices for a period of twenty-four (24) prior to months following the expiration of the Initial Term, the Company shall pay Employee a severance payment Separation Date (“Severance”) (ii) an amount equal to twelve months of Employee’s Base Salary as in effect on $30,428.37, payable within thirty (30) days following the date of terminationSeparation Date, and (iii) subject to subsections (cA) Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) and (dB) Executive’s continued copayment of premiums at the same level and cost to Executive 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).
(b) If during , and the Term of this Agreement there is a CC Termination, then the Employee Executive will be entitled to a severance payment (C) continued participation in addition to any other rights and other amounts payable the Company’s group health plan (to the Employee extent permitted under Company plans applicable law and the terms of such plan) which covers Executive (and Executive’s eligible dependents) for a period of eighteen (18) months at the Company’s expense, to be paid 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 form of reimbursements to the sum of: (iExecutive, provided that Executive is eligible and remains eligible for COBRA coverage; provided, further, that the Company may modify the continuation coverage contemplated by this Section 2(a)(iii)(C) twelve months to the extent reasonably necessary to avoid the imposition of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending any excise taxes on the date Company for failure to comply with the nondiscrimination requirements of such CC Termination)the Patient Protection and Affordable Care Act of 2010, as amended, and/or the Health Care and Education Reconciliation Act of 2010, as amended (ii) to the Employee’s Average Annual Bonus, subject to subsections (cextent applicable) and (d).
D) to the extent COBRA coverage expires after eighteen (c18) Any severance payment payable months permitted by COBRA, Executive shall be entitled to Employee pursuant up to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months of cash payments equal to the Severance Payment is otherwise payable Company’s average monthly cost paid pursuant to this Agreement.
Section 2(a)(iii)(C) for the previous eighteen (d18) Employee acknowledges and agrees months during COBRA coverage. Notwithstanding anything to the Severance Payment contrary, Executive shall not be entitled to which the Employee is entitled any payments or benefits under this Section 7 is conditioned upon and subject to 2(a)(iii) following December 13, 2019. The Company’s first payment of Severance shall occur on the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit B by the 45th day first scheduled payment date immediately following the Employee’s separation from service and not revoking date the release within the seven (7) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him General Release becomes irrevocable pursuant to Section 72(f), and such first payment shall include all payments scheduled to be made between the period of the Separation Date and the date the General Release becomes irrevocable.
Appears in 1 contract
Severance. (a) If the Company terminates EmployeeExecutive has a Separation from Service as a result of Executive’s employment with discharge by the Company without Cause or by reason of Executive’s resignation for Good Reason, in accordance with Section 6(c) prior to the expiration of the Initial Term, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum either case within sixty (60) days after prior to a Change in Control or within eighteen (18) months following a Change in Control, Executive shall be entitled to receive, in lieu of any severance benefits to which Executive may otherwise US-DOCS\75068345.1 be entitled under any severance plan or program of the date Employee’s employment Company, the benefits provided below, which, with respect to clause (ii), will be payable in a lump sum on the day that is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day days following the date of Executive’s Separation from Service:
(i) The Company shall pay to Executive his or her fully earned but unpaid base salary, when due, through the date of Executive’s Separation from Service at the rate then in effect, reimbursement of business expenses incurred prior to the date of Executive’s Separation from Service and properly submitted in accordance with Company policy, plus all other benefits, if any, under any Company group retirement plan, nonqualified deferred compensation plan, equity award plan or agreement (other than any such plan or agreement pertaining to Stock Awards whose treatment is prescribed by Section 3(a)(iv) below), health benefits plan or other Company group benefit plan to which Executive may be entitled pursuant to the terms of such plans or agreements at the time of Executive’s Separation from Service (the “Accrued Obligations”);
(ii) Subject to Section 3(c) and Executive’s continued compliance with Section 4, Executive shall be entitled to receive severance pay in an amount equal to one hundred percent (100%) multiplied by the sum of (x) Executive’s annual base salary as in effect immediately prior to the date of Executive’s Separation from Service, plus (y) Executive’s target annual bonus for the calendar year in which Executive’s Separation from Service occurs;
(iii) Subject to Section 3(c) and Executive’s continued compliance with Section 4, for the period spans two calendar yearsbeginning on the date of Executive’s Separation from Service and ending on the date which is twelve (12) full months following the date of Executive’s Separation from Service (or, if earlier, the Severance Payment will be made date on which the applicable continuation period under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) expires) (the “COBRA Coverage Period”), the Company shall continue to provide Executive and his or her eligible dependents who were covered under the Company’s health insurance plans as of the date of Executive’s Separation from Service with health (including medical and dental) insurance benefits substantially similar to those provided to Executive and his or her dependents immediately prior to the date of such Separation from Service. If any of the Company’s health benefits are self-funded as of the date of Executive’s Separation from Service, or if the Company cannot provide the foregoing benefits in a manner that is exempt from or otherwise compliant with applicable law or the provision of such benefits may result in the second calendar year. HoweverCompany incurring penalties under applicable law (including, if Employee is a “specified employee” as defined in regulations under without limitation, Section 409A of the Code and Section 2716 of the Severance Payment constitutes Public Health Service Act), instead of providing continued health insurance benefits as set forth above, the Company shall instead pay to Executive an amount equal to the monthly premium payment for Executive and his or her eligible dependents who were covered under the Company’s health plans as of the date of Executive’s Separation from Service (calculated by reference to the premium as of the date of Separation from Service) as currently taxable compensation in substantially equal monthly installments over the COBRA Coverage Period (or the remaining portion thereof);
(iv) Subject to Section 3(c) and Executive’s continued compliance with Section 4, the vesting and/or exercisability of each of Executive’s outstanding Stock Awards (other than Performance Awards, which will vest as to the “nonqualified deferred compensationtarget” that is number of shares subject to such performance Awards, except to the extent alternative acceleration is specifically provided for pursuant to the grant documents) shall be accelerated in full effective as of the later of (A) the date of Executive’s Separation from Service or (B) the date of the Change in Control (provided that payment or settlement of such Stock Awards may be delayed as provided in the grant documents to the extent required by Section 409A of the Code, the Severance Payment will ). Nothing in this Section 3(a)(iv) shall be made on construed to limit any more favorable vesting applicable to Executive’s Stock Awards in the Company’s first payroll payment date that is more than six (6equity plan(s) months and/or the Severance Payment is otherwise payable pursuant stock award agreements under which the Stock Awards were granted. The foregoing provisions are hereby deemed to this Agreement.be a part of each Stock Award and to supersede any less favorable provision in any agreement or plan regarding such Stock Award; and US-DOCS\75068345.1
(dv) Employee acknowledges and agrees Notwithstanding any other provision of this Agreement to the Severance Payment contrary, any severance benefits payable to which the Employee is entitled Executive under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit B Agreement shall be reduced by any severance benefits payable 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 Company or an affiliate of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company to such individual under any portion of the Severance Payment that has been paid to him pursuant to Section 7other policy, plan, program, agreement or arrangement, including, without limitation, any severance agreement between such individual and any entity.
Appears in 1 contract
Severance. (a) If You or the Company terminates Employee’s may terminate your employment (and the Term) at any time and for any reason, with or without cause. However, if your employment is terminated during the Term either (i) by the Company without Cause (and other than due to your death or Disability) or (ii) by you for Good Reason, you shall receive your earned and accrued (and unpaid) base salary and vacation pay as of such termination of employment (the effective date of such termination of employment, the “Date of Termination”, and such earned and accrued (and unpaid) base salary and vacation pay, the “Accrued Compensation”) as well as (subject to the release condition below) the following severance payments ("the Severance Benefits"): • Severance pay equal, in accordance with Section 6(cthe aggregate, to the sum of (a) one times your annual rate of base salary from the Company as in effect immediately prior to the expiration Date of the Initial Term, the Company shall pay Employee a severance payment an Termination plus (b) one times your target Annual Cash Award amount equal to twelve months of Employee’s Base Salary as in effect immediately prior to the Date of Termination, with such amount to be paid, subject to Section 13 of this Agreement, in a single lump sum on or within five business days following the date that is 60 days after the Date of Termination; • All equity awards held by you at termination which vest based on time shall become fully • vested and all other terms of such awards shall be governed by the plans and programs and the agreements and other documents pursuant to which such awards were granted; • Unless otherwise expressly provided for in an applicable award agreement, any performance objectives upon which the earning of performance-based restricted stock, RSUs, and other equity awards and other long-term incentive awards (including cash awards) is conditioned shall be deemed to have been met at the greater of (A) target level al the Date of Termination, or (B) actual performance and reasonably anticipated performance at the date of termination, subject to subsections (c) and (d).
(b) If during such amounts shall become fully vested and non-forfeitable as a result of termination of employment at the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination termination, and, in other respects, such awards shall be governed by the plans and programs and the agreements and other documents pursuant to which such awards were granted; • The Company will pay or reimburse you for your premiums charged to continue medical coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), at the same or reasonably equivalent medical coverage for you (and, if applicable, your eligible dependents) as in effect immediately prior to the Date of Termination, to the extent that you elect such continued coverage; provided that the Company’s obligation to make any payment or reimbursement pursuant to this section shall, subject to Section 13 of this Agreement, commence with continuation coverage for the month following the month in which your “separation from service” (as defined in Section 13 of this Agreement) occurs and shall cease with continuation coverage for the eighteenth (18th) month following the month in which your separation from service occurs (or, if greaterearlier, shall cease upon the first to occur of the date you become eligible for coverage under the health plan of a future employer, the highest Base Salary date the Company ceases to offer group medical coverage to its active executive employees, or the date the Company is no longer obligated to provide COBRA coverage to you). To the extent you elect COBRA coverage, you shall notify the Company in writing of such election prior to such coverage taking effect during and complete any other continuation coverage enrollment procedures the three Company may then have in place. All other rights under any other compensatory or benefit plan, including any deferrals, shall be governed by such plan. To the extent that Annual Cash Awards had not yet been paid for the prior fiscal year, you shall be entitled to any Annual Cash Award that you earned for such prior fiscal year period ending as though you had remained employed through the actual payment date. If the Company enters into or amends or renews employment or severance arrangements (exclusive of renewals of contracts that exist on the date of such CC Termination), and (iithis letter) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on generally provide the Company’s first payroll payment date that is officers with similarly-situated or less senior positions (exclusive of arrangements with any officers holding more than six (6senior positions) months with severance benefits that, in the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees aggregate in the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject case of each officer, are more beneficial to the Employee’s executing and delivering officer than the general release aggregate level of claims in your Severance Benefits provided for above, your Severance Benefits shall be adjusted to reflect the form attached hereto as Exhibit B by the 45th day following the Employee’s separation from service and not revoking the release within the seven level of severance benefits generally provided to officers with similarly-situated positions (7) days after executing and delivering the release. If such fortyor, if no officer with a similarly-five (45) day period plus the seven (7) day revocation period spans two calendar yearssituated position, the Severance Payment will be paid in officer with the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7most senior officer position below your position who receives such other arrangement).
Appears in 1 contract
Severance. (a) If Except as set forth in Section 2(b) below, in the Company terminates Employee’s event that your employment with the Company without Cause is terminated by Cubist for any reason other than for Cause, then, following, and subject to, receipt by Cubist of your signed and effective release of claims as more fully described in accordance with Section 6(c) prior to the expiration of the Initial Term7 below (and your not revoking such release during any applicable revocation period), the Company Cubist shall pay Employee you starting sixty (60) days following the date of your employment termination (or on the next succeeding business day if such date is not a severance payment business day), an amount equal to twelve twenty-four (24) months of Employee’s Base Salary as your then-current base salary, with such payment to be made in effect on twelve (12) equal semi-monthly installments, with the first payment retroactive to the day immediately following the date of termination, subject to subsections (c) and (d)your employment terminated.
(b) If during In the Term event that, within twenty-four (24) months after a Change of this Agreement there Control, your employment is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: terminated either (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and by Cubist for any reason other than for Cause or (ii) by you for Good Reason, then, following, and subject to, receipt by Cubist of your signed and effective release of claims as more fully described in Section 7 below (and your not revoking such release during any applicable revocation period), Cubist shall make a one-time, lump-sum payment to you equal to twenty-four (24) months of your then current base salary plus Bonus on the Employee’s Average Annual Bonus, subject to subsections sixtieth (c60th) and day following the termination of your employment (dor on the next succeeding business day if such date is not a business day).
(c) Any In the event that you become entitled to severance payments under Section 2(a) or 2(b) of this Agreement, Cubist shall provide you with health insurance assistance for a period of up to 24 months, as described in this paragraph. Subject to (i) your having timely elected continuation coverage under the federal law known as “COBRA”, (ii) your timely payment payable of the active employee portion of the monthly COBRA premium for each month during the period described below and (iii) such continuation coverage not having terminated, for a period of up to Employee eighteen (18) months beginning on the first day of the month after the month in which your employment terminates or, if earlier, until such time as your COBRA coverage terminates, Cubist shall be responsible for the balance of the premium during this period. For the remainder of the 24-month period beginning on the first day of the month after the month in which your employment terminates, (i) if you continue to be eligible for COBRA coverage after such 18-month period, Cubist will continue to pay the employer portion of your premium as described in the preceding sentence, subject to the conditions set forth therein, and (ii) if you cease to be eligible for COBRA solely by reason of the 18-month limitation generally applicable under COBRA, Cubist will provide to you, on a taxable basis, reimbursements for substantiated health care premium payments made by you up to an amount equal to the portion of the monthly COBRA premium covered by Cubist in the last month of such 18-month period.
(d) Notwithstanding any other provision with respect to the timing of payments under this Section 2, in order to comply with the requirements of Section 409A, if any amount or benefit to be paid to you pursuant to this Agreement as a result of your termination of employment constitutes “deferred compensation” within the meaning of, and subject to, Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However409A, if Employee is you are a “specified employee” (as determined by Cubist in its sole discretion and as defined in regulations below) on the date of your termination of employment, any payment or benefit or portion thereof, if any, that is scheduled to be paid or provided to you hereunder during the first six (6) months following the date of your termination of employment shall not be paid until the date which is the first business day of the seventh month following your termination. For purposes of the preceding sentence, the term “specified employee” means an individual who is determined by Cubist to be a specified employee under Section 409A 1.409A-1(i) of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is Treasury Regulations. Cubist may, but need not, elect in writing, subject to the applicable limitations under Section 409A of the Code, any of the Severance Payment will special elective rules prescribed in Section 1.409A-1(i) of the Treasury Regulations for purposes of determining “specified employee” status. Any such written election shall be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to deemed part of this Agreement. For purposes of the Treasury Regulations under Section 409A, each payment described in this Section shall be treated as a separate payment.
(de) Employee acknowledges and agrees the Severance Payment For purposes of this Agreement, references to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release termination of claims in the form attached hereto as Exhibit B by the 45th day following the Employee’s employment, separation from service and not revoking the release within the seven similar or correlative terms mean a “separation from service” (7as defined at Section 1.409A-1(h) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment Treasury Regulations) from Cubist and from all other corporations and trades or businesses, if any, that has been paid would be treated as a single “service recipient” with Cubist under Section 1.409A-1(h)(3) of the Treasury Regulations. A termination of employment for Good Reason or by Cubist for any reason other than for Cause under this Agreement is intended to him pursuant to satisfy the meaning of “involuntary separation from service” (as defined in Section 71.409A-1(n) of the Treasury Regulations).
Appears in 1 contract
Severance. (a) If the Company terminates Employee’s employment with the Company without Cause in accordance with Section 6(c) prior Subject to the expiration of the Initial TermExecutive’s continued compliance with his obligations under this Agreement, the Company shall pay Employee a severance have no obligation to the Executive other than: (i) the payment of the Executive’s earned and unpaid compensation through the effective date of such termination; (ii) the payment of any deferred bonus, subject to the provisions of Section 409A of the Code; (iii) the payment of an amount equal to 200% (the “Severance Percentage”) of the sum of the Executive’s annual Base Salary plus the Executive’s Target Bonus of 87.5% of the Base Salary (but not the Additional Bonus), 50% of which amount shall be paid to the Executive upon the first business day following the six month anniversary of the date of termination of employment and the remainder of which shall be paid to the Executive in equal installments each month thereafter for six months; and (iv) treatment of the Options as described below in Sections 4.4(b) and (c), except as otherwise required by law or by the terms of the Company’s benefit plans (excluding severance plans); provided, that (A) during the first twelve (12) months of Employeethe Employment Period, the Severance Percentage shall decline by 8.33% at the end of each one month period commencing at the Effective Time to become a Severance Percentage of 100% at the end of the Initial Employment Period and (B) if the termination without Cause occurs within the six-month period after a Change of Control (as defined in Section 4.8 below), in lieu of the cash severance benefits set forth in clause (iii) above, the Executive shall receive the payment over a 12-month period in equal monthly installments of an amount equal to the product of the Severance Percentage and the sum of the Executive’s annual Base Salary plus the greatest of (x) the Executive’s Target Bonus (but not the Additional Bonus) as in effect on as of the date of termination, subject (y) the Target Bonus (but not the Additional Bonus) paid to subsections the Executive for the year immediately preceding the year in which the date of termination occurs, or (cz) 87.5% of the Base Salary. In the event that the Executive is eligible to receive the severance benefits provided for by this Section 4.4(a), the Executive shall not be eligible to receive severance benefits under any other plan, policy, or agreement of the Company or its Affiliates. With respect to clauses (i) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Terminationii), and (ii) for the Employee’s Average Annual Bonusavoidance of doubt, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days the fact that the Company might pay, after the date EmployeeExecutive’s employment is terminated giving rise termination date, to such Severance Payment pursuant its or its Affiliates’ employees a bonus relating to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months performance during all or any part of the Severance Payment is otherwise payable pursuant period when the Executive was an employee of the Company shall not give rise to this Agreement.
(d) Employee acknowledges and agrees any entitlement by the Severance Payment Executive to which the Employee is entitled under this Section 7 is conditioned upon and subject any such bonus, or to the Employee’s executing and delivering Target Bonus or the general release of claims in the form attached hereto Additional Bonus, whether as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar yearsearned compensation, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreementa deferred bonus, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7or otherwise.
Appears in 1 contract
Sources: Employment Agreement (Intelsat LTD)
Severance. In exchange for Employee’s agreement to be bound by the terms of this Release, including, but not limited to, the release of claims in Section 3, Employee shall be entitled to receive the following, which shall be the exclusive severance benefits to which Employee is entitled, unless Employee has materially breached the provisions of this Release, in which case the last sentence of Section 4 shall apply:
(ai) If A cash payment in the amount of twelve (12) months’ base salary, or $ $301,959, payable in a lump sum within ten (10) days following the Effective Date;
(ii) For the period beginning on the Separation Date and ending on the date which is twelve (12) full months following the Separation Date (or, if earlier, the date on which the applicable continuation period under COBRA expires), the Company terminates shall either, at its option, (i) pay directly or (ii) reimburse Employee, for the costs associated with continuation coverage pursuant to COBRA for Employee and his eligible dependents who were covered under the Company’s employment with health plans as of the Company Separation Date (provided that Employee shall be solely responsible for all matters relating to his continuation of coverage pursuant to COBRA, including, without Cause in accordance with Section 6(climitation, his election of such coverage and his timely payment of premiums). If (A) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the Initial Termperiod of continuation coverage to be, exempt from the application of Code Section 409A under Treasury Regulation Section 1.409A-1(a)(5), or (B) the Company is otherwise unable to continue to cover Employee under its group health plans under applicable law or the terms of such plans, then, in either case, the Company shall instead pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: monthly plan premium payment for Employee and his eligible dependents who were covered under the Company’s health plans as of the Separation Date (icalculated by reference to Employee’s premiums as of the Separation Date) as currently taxable compensation in substantially equal monthly installments over the foregoing twelve months (12) month period (or the remaining portion thereof); plus
(iii) the vesting and/or exercisability of each of Employee’s Base Salary in effect on date outstanding stock options shall be automatically accelerated as to the number of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, shares subject to subsections such stock options that would have vested over the twelve (c12) month period following the Separation Date had Employee remained continuously employed by the Company during such period. Except as modified above, Employee's stock options shall continue to be governed by the terms and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A conditions of the Code stock option agreements and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable equity plan pursuant to this Agreement.
(d) Employee acknowledges and agrees which such stock options were granted. The foregoing benefits shall be the Severance Payment exclusive benefits to which the Employee is entitled under this Section 7 is conditioned upon and subject to in connection with his termination of employment, unless Employee has materially breached the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 provisions of this Agreement. If Employee breaches any Release, in which case the last sentence of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 74 shall apply.
Appears in 1 contract
Sources: General Release of Claims (Conatus Pharmaceuticals Inc.)
Severance. Notwithstanding any other provision of this Agreement:
(aA) If the Company terminates Employee’s 's employment with the Company terminates pursuant to either Section 4(c) (by the Company without Cause in accordance with Cause) or Section 6(c4(d) prior (by the Employee for Good Reason) during the Designated Term, then the Company shall, upon delivery to the expiration Company of a release of any claims of the Initial Term, Employee against the Company shall and its stockholders, directors, officers, employees, agents or other affiliates arising out of his employment relationship (other than claims to any compensation or benefits payable under or to be provided pursuant to this Section 5, or any rights of the Employee under Sections 6 or 7 hereof) executed by the Employee and reasonably satisfactory in form and substance to the Company (a "Severance Release"), continue to pay and provide to the Employee a severance payment an amount equal (A) the --------- ------- compensation payable to twelve months of Employee’s Base Salary as him pursuant to Section 3(a) hereof, and (B) the benefits provided to him pursuant to Section 3(c) hereof (the compensation and benefits described in effect on the date of termination, subject to subsections clauses (cA) and (dB).
, together, such Employee's "Base ---- Severance Compensation"), and (bC) If during the Term of this Agreement there is a CC Termination, then any bonus accrued or earned by the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable --------- ------------ pursuant to the Employee Bonus Plan and attributable to the Employee's performance for the portion of the year prior to his Termination of Employment, on a one-time only basis payable at the time of payment of bonuses to other executive employees under Company plans in which Employee is a participantthe Bonus Plan, but without duplication and (D) for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in each year, 50% of an amount equal to the sum of: compensation payable to the Employee pursuant to Section 3(a), multiplied by a fraction, the numerator of which equals the aggregate bonus actually payable with respect to the preceding year to the Company's other executive employees in the same bonus pay-out range as the Employee was in prior to his Termination of Employment, and the denominator of which equals the aggregate salary of such other executive employees for such preceding year (the compensation described in clauses (C) and (D) together, such Employee's "Variable Severance Compensation") -------- --------- ------------ for a period (the "Initial Severance Period") equal to the longer of (i) twelve months the ------- --------- ------ remainder of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination)Designated Term, and (ii) the Employee’s Average Annual Bonusone-year period following the date of such Termination of Employment, subject but this clause only being applicable if, prior to subsections the earlier of (cx) the last day of the Designated Term and (dy) the thirtieth (30th) day from the date of such Termination of Employment, the Company shall have notified the Employee in writing of the Company's intention, in the Company's sole discretion, so to extend the Initial Severance Period (such notice, a "Severance Extension Notice"). In the Company's sole --------- --------- ------ discretion, the Company may elect, either in the Severance Extension Notice, or by written notice to the Employee given no later than thirty (30) days prior to the end of the Initial Severance Period (as it may have been extended pursuant to the Severance Extension Notice), to continue to pay and provide to the Employee his Base Severance Compensation for an additional period (the "Additional Severance Period") of up to one year following the end of the ----------- --------- ------ Initial Severance Period (as it may have been extended pursuant to the Severance Extension Notice), provided that the Additional Severance Period shall in no event extend beyond the second anniversary of the Employee's Termination of Employment. Upon payment in full of the Employee's Base Severance Compensation and, if and when applicable, his Variable Severance Compensation, as described in this Section 5(a), the Company's obligations to pay and provide the Employee with any other compensation otherwise payable to him pursuant to Section 3 hereof, and all other rights of the Employee under Sections 2 and 3 hereof and this Section 5, shall cease as of the date of such payment in full.
(cB) Any severance payment payable to Employee If the Employee's employment with the Company terminates pursuant to either Section 4(c) (by the Company without Cause) or Section 4(d) (by the Employee for Good Reason) at any time after the end of the Designated Term, then if at the time of such Termination of Employment or within thirty (30) days thereafter, the Company shall, in its sole discretion, so have notified the Employee in writing (such notice, a "Severance Notice") and the Employee shall --------- ------ have executed and delivered to the Company a Severance Release, the Company shall continue to pay and provide to the Employee his Base Severance Compensation and his Variable Severance Compensation for a period of one year following the date of such Termination of Employment (the "Initial Post-Term ------- --------- Severance Period"), provided that, unless the Company shall have notified the --------- ------ Employee in writing at the time of his Termination of Employment that it did not intend to deliver a Severance Notice, the Employee's Base Severance Compensation shall be payable in any event for the portion of the 30-day period following the Termination of Employment prior to the Company's delivery either of a Severance Notice or of notice that the Company did not intend to deliver a Severance Notice. The Company may elect, in its sole discretion, by written notice to the Employee given no later than ninety (90) days prior to the end of the Initial Post-Term Severance Period to extend the period during which the Employee's Base Severance Compensation shall be payable and provided to the Employee for an additional period (also referred to herein as an "Additional Severance Period") ---------- --------- ------ of up to one year from the end of the Initial Post-Term Severance Period, provided that the total period during which his Base Severance Compensation shall be payable and provided to the Employee under this Section 7 5(b) shall in no event extend beyond the second anniversary of the Employee's Termination of Employment. In the event that no Severance Notice has been given within thirty (a “Severance Payment”) will be made in a lump sum within sixty (6030) days after the date of the Employee’s employment is terminated giving rise to such Severance Payment 's Termination of Employment pursuant to either Section 7(a4(c) (by the Company without Cause) or Section 4(d) (bby the Employee for Good Reason); provided that , then the Company's obligation to pay and provide the Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made with any compensation shall cease in the second calendar year. However, if Employee is a “specified employee” any event as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six thirtieth (630th) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit B by the 45th day following the date of such Termination of Employment, and all other rights of the Employee under Sections 2, 3 and 5 hereof, shall be deemed to have ceased as of the date of such Termination of Employment. In the event that a Severance Notice is given in accordance with this Section 5(b), then upon payment in full of the Employee’s separation from service 's Base Severance Compensation, and, if and not revoking the release within the seven (7) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar yearswhen applicable, his Variable Severance Compensation as described in this Section 5(b), the Severance Payment will be paid in Company's obligations to pay and provide the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance Employee with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid compensation payable to him pursuant to Section 73 hereof, and all other rights of the Employee under Sections 2 and 3 hereof and this Section 5, shall cease as of the date of such payment in full.
(C) If the Employee's employment with the Company terminates pursuant to any of Sections 4(a) (death or Disability), 4(b) (by the Company for Cause), or 4(e) (by the Employee without Good Reason) hereof, then the Company's obligations to pay and provide the Employee with any of the compensation payable to him pursuant to Section 3 hereof, and all other rights of the Employee under Sections 2 and 3 hereof and this Section 5, shall cease as of the date of such Termination of Employment.
(D) The Employee shall not be required to mitigate the amount of any compensation payable to him pursuant to Sections 5(a) or 5(b) hereof, by seeking other employment or otherwise, provided, that in the event the Employee obtains other employment during any period for which compensation is being paid pursuant to Sections 5(a) or 5(b), the amount of compensation otherwise payable to the Employee pursuant to either of such sections shall be reduced by 50% for the period during which the Employee is so employed, provided, further, that in the event that the Employee provides evidence reasonably satisfactory to the Company that the amount of the resulting reduction in his compensation otherwise payable pursuant to Sections 5(a) or 5(b) hereof, as the case may be, exceeds the level of his compensation payable from such other employment, then his compensation pursuant to Sections 5(a) or 5(b) hereof, as applicable, shall be reduced for the period of such other employment by an amount equal to the aggregate amount of his compensation from such other employment during such period. The Employee shall promptly notify the Company if he obtains other employment during the applicable period.
(E) Nothing in this Section 5 shall limit any other obligation which the Company may owe the Employee under any insurance policy, employee benefit plan or other retirement plan. Furthermore, upon any Termination of Employment of any type, the Company shall remain obligated to the Employee for (i) any accrued and unpaid base salary and vacation pay, (ii) reimbursement for reasonable out-of-pocket expenses incurred by Employee by or on behalf of the Company or otherwise in the performance of his duties and in accordance with applicable Company policies then in effect, and (iii) unless otherwise specified in any such plan, policy or program, payments or benefits explicitly provided under the terms of any plan, policy or program of the Company in which the Employee was a participant, or as otherwise required by applicable law.
Appears in 1 contract
Severance. (a) If the Company terminates EmployeeExecutive has a Separation from Service as a result of Executive’s employment with discharge by the Company without Cause or by reason of Executive’s resignation for Good Reason, in accordance with Section 6(ceither case within eighteen (18) prior to the expiration of the Initial Termmonths following a Change in Control, the Company Executive shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a receive, in lieu of any severance payment benefits to which Executive may otherwise be entitled under any severance plan or program of the Company, the benefits provided below, which, with respect to clause (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participantii), but without duplication for any amounts due to Employee pursuant to Section 7(a)) will be payable in a lump sum within ten (10) days following the effective date of Executive’s Release (as defined below):
(i) The Company shall pay to Executive his or her fully earned but unpaid base salary, when due, through the date of Executive’s Separation from Service at the rate then in cash effect, reimbursement of business expenses incurred prior to the date of Executive’s Separation from Service and properly submitted in accordance with Company policy, plus all other benefits, if any, under any Company group retirement plan, nonqualified deferred compensation plan, equity award plan or agreement (other than any such plan or agreement pertaining to Stock Awards whose treatment is prescribed by Section 3(a)(iv) below), health benefits plan or other Company group benefit plan to which Executive may be entitled pursuant to the terms of such plans or agreements at the time of Executive’s Separation from Service (the “Accrued Obligations”);
(ii) Subject to Section 3(c) and Executive’s continued compliance with Section 4, Executive shall be entitled to receive severance pay in an amount equal to the sum of: of (ix) twelve months of Employee[ ● ] percent ([ ● ]%) multiplied by Executive’s Base Salary annual base salary as in effect on immediately prior to the date of such CC Termination Executive’s Separation from Service, plus (y) Executive’s target annual bonus for the calendar year in which Executive’s Separation from Service occurs (which bonus shall be prorated for the portion of the calendar year that has elapsed prior to the date of Executive’s Separation from Service);
(iii) Subject to Section 3(c) and Executive’s continued compliance with Section 4, for the period beginning on the date of Executive’s Separation from Service and ending on the date which is [ ● ] ([ ● ]) full months following the date of Executive’s Separation from Service (or, if greaterearlier, the highest Base Salary in effect during date on which the three year applicable continuation period ending on under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) expires) (the “COBRA Coverage Period”), the Company shall continue to provide Executive and his or her eligible dependents who were covered under the Company’s health insurance plans as of the date of Executive’s Separation from Service with health (including medical and dental) insurance benefits substantially similar to those provided to Executive and his or her dependents immediately prior to the date of such CC Termination)Separation from Service. If any of the Company’s health benefits are self-funded as of the date of Executive’s Separation from Service, and (ii) or if the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made Company cannot provide the foregoing benefits in a lump sum within sixty (60) days after manner that is exempt from or otherwise compliant with applicable law or the date Employee’s employment is terminated giving rise to provision of such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made benefits may result in the second calendar year. HoweverCompany incurring penalties under applicable law (including, if Employee is a “specified employee” as defined in regulations under without limitation, Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A 2716 of the CodePublic Health Service Act), instead of providing continued health insurance benefits as set forth above, the Severance Payment will be made on Company shall instead pay to Executive an amount equal to the monthly premium payment for Executive and his or her eligible dependents who were covered under the Company’s first payroll payment health plans as of the date that is more than six of Executive’s Separation from Service (6calculated by reference to the premium as of the date of Separation from Service) months as currently taxable compensation in substantially equal monthly installments over the Severance Payment is otherwise payable pursuant to this Agreement.COBRA Coverage Period (or the remaining portion thereof);
(div) Employee acknowledges Subject to Section 3(c) and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon EmployeeExecutive’s continued compliance with Sections 8-11 Section 4, the vesting of each of Executive’s outstanding Stock Awards (other than Performance Awards) shall be accelerated in full effective as of the date of Executive’s Separation from Service. Nothing in this Section 3(a)(iv) shall be construed to limit any more favorable vesting applicable to Executive’s Stock Awards in the Company’s equity plan(s) and/or the stock award agreements under which the Stock Awards were granted. The foregoing provisions are hereby deemed to be a part of each Stock Award and to supersede any less favorable provision in any agreement or plan regarding such Stock Award; and
(v) Notwithstanding any other provision of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return Agreement to the contrary, any severance benefits payable to Executive under this Agreement shall be reduced by any severance benefits payable by the Company any portion or an affiliate of the Severance Payment that has been paid Company to him pursuant to Section 7such individual under any other policy, plan, program, agreement or arrangement, including, without limitation, any severance agreement between such individual and any entity.
Appears in 1 contract
Sources: Change in Control Severance Agreement (Tessera Technologies Inc)
Severance. (aSubject to Section 2(d) If herein, the Company terminates Employeetermination of Executive’s employment with on the Company without Cause Termination Date in accordance with Section 6(c) prior to the expiration of the Initial Term, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d).
(b) If during the Term 1 of this Agreement there is will constitute a CC Termination“termination without Cause” (as defined in the Employment Agreement), then and, in full satisfaction of the Employee Company’s obligations under Sections 4 and 5 of the Employment Agreement, Executive will be entitled to a the severance payments and benefits specified in the Employment Agreement, consisting of (i) payment of Executive’s base salary through the Termination Date, (ii) payment of any unreimbursed Business Expenses (as defined in addition the Employment Agreement), including any automobile expenses covered by Section 4(d)(ii) of the Employment Agreement, incurred and paid by Executive up to and including the Termination Date, (iii) payment of any other rights and other amounts vested compensation or benefits payable to Executive based on the Employee under Company express terms of the Company’s compensation or benefit plans or programs and Executive’s participation therein (clauses (i), (ii), and (iii) herein collectively the “Accrued Amounts”, with such amounts or benefits paid or provided in which Employee is a participantaccordance with Section 5(a)(x) of the Employment Agreement), but without duplication for any amounts due to Employee pursuant to Section 7(a)(iv) payable cash severance paid in a lump sum within thirty (30) days following the Termination Date in cash in an the amount of $3,762,950.41, which is equal to the sum of: (ix) twelve months one hundred percent (100%) of EmployeeExecutive’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect base salary accrued and paid during the three year period ending on 24 months immediately preceding the date of such CC Termination), Termination Date and (iiy) fifty percent (50%) of the Employee’s Average Annual Bonusaggregate cash incentive compensation paid to Executive in U.S. dollars, subject with respect to subsections the 2016 and 2017 calendar years (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a the “Severance Payment”), (v) will be made subject in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant all respects to Section 7(a4(d)(iii) or (b); provided that Employee executes and delivers any such modification is generally applicable to similarly-situated executives of the release contemplated by Section 7(dCompany) and such release becomes effective Section 13(f) of the Employment Agreement (except with respect to directors and irrevocable. If such sixty (60) day period spans two calendar yearsofficers liability insurance which shall be provided in all events), the Severance Payment will be made in the second calendar year. HoweverCompany shall make available to Executive, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on at the Company’s first payroll payment date cost and expense, continued participation in the Company’s life insurance, disability insurance, directors and officers liability insurance, health and accident plans (including medical, dental and vision plans) and any other welfare, fringe or employee benefit plans Executive was participating in immediately prior to the Termination Date (collectively, the “Welfare Benefits”) for a period beginning on the Termination Date and continuing for at least 24 months or, if earlier occurring, such time as Executive obtains other employment that is more than six (6) months provides Executive with benefits at least as favorable to Executive as the Severance Payment is otherwise payable pursuant Welfare Benefits. Notwithstanding anything to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under contrary set forth in this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years2(a), the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment or Welfare Benefits that has been is considered nonqualified deferred compensation under Code Section 409A on the Termination Date shall not be made or provided until the date which is the earlier of (A) Monday, September 3rd, 2018, and (B) the date of the Executive’s death, to the extent required under Code Section 409A, following which date, all payments and benefits so delayed shall be paid or reimbursed to him pursuant the Executive (or upon his death, to Section 7his estate) in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
Appears in 1 contract
Sources: Separation and Release Agreement (Ultra Petroleum Corp)
Severance. Severance pay in the amount of the Nine (a9) If months of the Company terminates Employee’s employment with the Company without Base Salary, if termination is for any reason other than Cause in accordance with Section 6(c) prior to the or expiration of the Initial TermEmployment Term or resignation by Executive. Severance pay, if any, will be payable in 18 equal monthly installments. Executive will be required to execute and return the Company’s form Separation and Release of Claims Agreement (“Separation and Release”) within 45 days after Executive’s termination of employment in order to be eligible to receive the severance pay described above. Payment of Executive’s severance shall commence no earlier the 7 calendar days after the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on receives the date of termination, subject to subsections (c) executed Separation and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights Release and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) no later than 90 days after the date Employeeof Executive’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or separation from service (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations Section 1.409A 1(h) of the Treasury Regulations) (“Separation from Service”), the exact date to be determined by the Company in its sole discretion, provided that Executive timely executes and returns the Separation and Release and does not subsequently revoke such execution. For all purposes of Section 409A of the Internal Revenue Code (the “Code”) and the related regulations, Executive’s entitlement to severance pay pursuant to this Agreement shall be treated as an entitlement to a series of separate payments. To the extent permitted under Section 409A of the Code and the Severance Payment constitutes related regulations, any such payments that are excluded from the definition of “nonqualified deferred deferral of compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 71.409A-1(b)(4) of the Treasury Regulations shall not be taken into account in determining the eligibility of the remaining severance payments for exclusion from the definition of “deferral of compensation” pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations. “Cause” shall mean (i) Executive’s continued failure or refusal to substantially perform Executive’s duties hereunder for a period of 10 days following written notice by the Company to Executive of such failure or refusal, (ii) dishonesty in the performance of Executive’s duties hereunder, (iii) an act or acts on Executive’s part constituting (x) a felony under the laws of the United States or any state thereof or (y) a misdemeanor involving moral turpitude, (iv) Executive’s willful malfeasance or willful misconduct in connection with Executive’s duties hereunder or any act or omission which is materially injurious to the financial condition or business reputation of the Company or any of its subsidiaries or affiliates, (v) Executive’s unsatisfactory job performance, or (vi) Executive’s breach of any provision of this agreement, including the attached addendum. Additionally, if Executive becomes physically or mentally incapacitated for a continuous period of 90 days or more, the Company has the right to terminate Executive’s employment without paying severance. For the purposes hereof, the term “physical or mental incapacity” means Executive’s inability to perform the principal duties as contemplated by this agreement.
Appears in 1 contract
Sources: Employment Agreement (Ami Celebrity Publications, LLC)
Severance. (a) If In consideration of and in return for the Company terminates Employee’s employment with the Company without Cause promises contained in accordance with Section 6(c) prior to the expiration of the Initial Termthis Agreement, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary and as in effect on the date of termination, subject to subsections (c) full and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due final compensation to Employee pursuant to Section 7(a)) payable in a lump sum in cash in for all services as an amount equal to employee: [OPTION 1: IN THE EVENT THAT EMPLOYEE IS TERMINATED BY EMPLOYER WITHOUT "CAUSE", RESIGNS FOR "GOOD REASON" OR TERMINATED IN CONNECTION WITH OR FOLLOWING A CHANGE OF CONTROL, THEN THE FOLLOWING PARAGRAPH SHALL APPLY]
a. Employee shall receive from Employer following the sum of: termination date, with appropriate deductions and withholdings, (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (iicompensation required by Paragraph 2(a) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and Employment Agreement dated April 28, 2010 (the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A "Employment Agreement") for a period of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months from the termination date (the "Severance Period") payable semi-monthly in accordance with Employer's regular payroll practices, (ii) the COBRA premium, if any, set forth in Paragraph 2(b) of this Agreement, and (iii) the acceleration by six (6) months of Employee's unvested stock options granted under Paragraph 2(c) of the Employment Agreement (subsection (i),(ii) and (iii) of this Paragraph shall be referred to collectively herein as the "Severance"), in addition to all accrued and unused wages and vacation pay and any applicable quarterly bonus (if any) which has been earned but not yet paid through the termination date; [OPTION 2: IN THE EVENT THAT EMPLOYEE IS TERMINATED BY EMPLOYER FOR FAILING TO ACHIEVE PERFORMANCE TARGETS SET BY THE BOARD OF DIRECTORS OF EMPLOYER, THEN THE FOLLOWING PARAGRAPH SHALL APPLY]
a. Employee shall receive from Employer following the termination date, with appropriate deductions and withholdings, (i) the compensation required by Paragraph 2(a) of the Employment Agreement dated April 28, 2010 (the "Employment Agreement") for a period of three (3) months from the termination date (the "Severance Period") payable semi-monthly in accordance with Employer's regular payroll practices, (ii) the COBRA premium, if any, set forth in Paragraph 2(b) of this Agreement, and (iii) the acceleration by three (3) months of Employee's unvested stock options granted under Paragraph 2(c) of the Employment Agreement (subsection (i),(ii) and (iii) of this Paragraph shall be referred to collectively herein as the "Severance"), in addition to all accrued and unused wages and vacation pay and any applicable quarterly bonus (if any) which has been earned but not yet paid through the termination date;
b. Employee will continue on Employer's medical plan up to and including Employee's termination date. Employee shall have the right to continue his/her medical and dental insurance, at Employer's expense until the earlier of the expiration of the Severance Payment is otherwise payable Period or until Employee finds another job that provides at least substantially similar health insurance and thereafter at Employee's sole expense, pursuant to this Agreement.the provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") provided, however, that Employee timely elects COBRA continuation. The COBRA period shall be deemed to have commenced on the first of the month following the date of termination;
(d) c. Employee acknowledges and agrees that the Severance Payment to which provided for in this Agreement is due under the Employment Agreement only if Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of signs this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.; and
Appears in 1 contract
Severance. In exchange for Employee’s agreement to be bound by the terms of this Release, including, but not limited to, the release of claims in Section 3, Employee shall be entitled to receive the following, which shall be the exclusive severance benefits to which Employee is entitled, unless Employee has materially breached the provisions of this Release, in which case the last sentence of Section 4 shall apply:
(ai) If A cash payment in the amount of twelve (12) months’ base salary, or $ $331,009, payable in a lump sum within ten (10) days following the Effective Date;
(ii) For the period beginning on the Separation Date and ending on the date which is twelve (12) full months following the Separation Date (or, if earlier, the date on which the applicable continuation period under COBRA expires), the Company terminates shall either, at its option, (i) pay directly or (ii) reimburse Employee, for the costs associated with continuation coverage pursuant to COBRA for Employee and his eligible dependents who were covered under the Company’s employment with health plans as of the Company Separation Date (provided that Employee shall be solely responsible for all matters relating to his continuation of coverage pursuant to COBRA, including, without Cause in accordance with Section 6(climitation, his election of such coverage and his timely payment of premiums). If (A) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the Initial Termperiod of continuation coverage to be, exempt from the application of Code Section 409A under Treasury Regulation Section 1.409A-1(a)(5), or (B) the Company is otherwise unable to continue to cover Employee under its group health plans under applicable law or the terms of such plans, then, in either case, the Company shall instead pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: monthly plan premium payment for Employee and his eligible dependents who were covered under the Company’s health plans as of the Separation Date (icalculated by reference to Employee’s premiums as of the Separation Date) as currently taxable compensation in substantially equal monthly installments over the foregoing twelve months (12) month period (or the remaining portion thereof); plus
(iii) the vesting and/or exercisability of each of Employee’s Base Salary in effect on date outstanding stock options shall be automatically accelerated as to the number of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, shares subject to subsections such stock options that would have vested over the twelve (c12) month period following the Separation Date had Employee remained continuously employed by the Company during such period. Except as modified above, Employee's stock options shall continue to be governed by the terms and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A conditions of the Code stock option agreements and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable equity plan pursuant to this Agreement.
(d) Employee acknowledges and agrees which such stock options were granted. The foregoing benefits shall be the Severance Payment exclusive benefits to which the Employee is entitled under this Section 7 is conditioned upon and subject to in connection with his termination of employment, unless Employee has materially breached the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 provisions of this Agreement. If Employee breaches any Release, in which case the last sentence of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 74 shall apply.
Appears in 1 contract
Sources: General Release of Claims (Conatus Pharmaceuticals Inc.)
Severance. (ai) If Upon termination by the Company terminates Employee’s of the Executive's employment with the Company without for any reason other than for Cause (as defined below), or upon termination by the Executive of his employment with the Company for Good Reason (as defined below) within thirty (30) days of the occurrence of the circumstances giving rise to such Good Reason, then (i) the Executive shall be entitled to receive payment of any accrued and owing Base Salary for the applicable period, (ii) a lump-sum payment equal to one year's Base Salary at its then current rate, payable in accordance with Section 6(ca lump-sum sixty (60) prior days following the Executive's Separation from Service (as defined in section 409A of the Internal Revenue Code of 1986, as amended (the "Code")), (iii) the Executive shall vest as to an additional twenty percent (20%) of the shares subject to the expiration Restricted Stock award and (iv) the Executive shall vest as to such additional portion of the Initial Termshares subject to any then outstanding Deferred Shares Awards as is provided in the applicable Deferred Share Award agreements.
(ii) Except for indemnification obligations under applicable indemnification agreements (including indemnification obligations contained in the Company charter and by-laws) and insurance policies, and vested rights in benefit plans of the Company, if any, the Company shall pay Employee a severance payment an amount equal have no obligation to twelve months the Executive in the case of Employee’s Base Salary any such termination except as set forth in effect on the date of termination, subject to subsections (c) and (dthis Section 4(g).
(biii) If Payment of any severance and the Executive's entitlement to any vesting acceleration are conditioned upon (A) the Executive signing a separation agreement prepared by the Company which includes a general release of claims and (B) the Executive's compliance with the restrictive covenants set forth in the Non-Compete, Non-Solicitation and Confidentiality Agreement between the Executive and GSL, effective as of April 9, 2006, attached hereto as Appendix C (the "Non-Compete, Non-Solicitation and Confidentiality Agreement").
(iv) For the sake of clarity, the severance payment provided for herein shall be in lieu of any amount to which the Executive would be entitled under the Company's severance policy, if any, in effect at the time of the termination.
(v) In the event that the Executive's employment terminates due to death or becoming Disabled during the Term of this Agreement there is Agreement: (x) the Executive (or the Executive's estate or appropriate beneficiary) shall receive a CC Termination, then the Employee will be entitled to a severance lump-sum cash payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: six (i6) twelve months of Employee’s his then existing Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within paid sixty (60) days after following such death or determination of disability), (y) the date Employee’s employment Executive shall be entitled to two (2) years of group health and welfare benefits (including the conversion of any life or disability policies) at the Company's expense, and (z) the unvested portion of the Restricted Stock and Deferred Shares Award, if any, shall immediately vest in full. The Executive shall be considered "Disabled" as determined by the Board of Directors in good faith, taking into account circumstance where the Executive is terminated giving rise entitled to such Severance Payment pursuant any benefits under any long-term disability income plan of the Company applicable to the Executive.
(vi) In the event the Executive becomes entitled to any payments of severance under this Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d2(g) and such release becomes effective and irrevocable. If such sixty (60the Executive is a "specified employee" within the meaning of Section of 409A(a)(2)(B)(i) day period spans two calendar yearsof the Code, the Severance Payment will payment of such severance shall be made delayed in accordance with the second calendar year. However, if Employee is a “specified employee” as defined in regulations provisions of such section to the extent necessary or appropriate to avoid adverse tax consequences under Section 409A of the Code. Furthermore, it is intended that the Agreement shall comply with the provisions of section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” Treasury Regulations relating thereto so as not to subject the Executive to the payment of additional taxes and interest under section 409A of the Code. In furtherance of this intent, this Agreement shall be interpreted, operated, and administered in a manner consistent with these intentions, and to the extent that is any regulations or other guidance issued under section 409A of the Code would result in the Executive being subject to Section payment of additional income taxes or interest under section 409A of the Code, the Severance Payment will be made on parties agree to amend this Agreement in order to avoid the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled application of such taxes or interest under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion section 409A of the Severance Payment that has been paid to him pursuant to Section 7Code.
Appears in 1 contract
Severance. (a) If the Company terminates Employee’s the Executive's employment with without "cause" pursuant to Section 4(c) above (other than following a Change of Control, which is subject to Section 5) or the Executive's employment terminates as a result of a Notice of Non-Extension provided to the Executive by the Company without Cause pursuant to Section 2 above, then, subject to the Executive's execution of the Release attached hereto as Exhibit A (or in a substantially similar form as the Company deems necessary in order to comply with then applicable law) (the "Release") and the Release becoming effective in accordance with Section 6(cits terms not later than the sixtieth (60th) prior to day following the expiration Executive's termination of the Initial Termemployment, the Company Executive shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a receive the following severance payment benefits: (in addition to any other rights i) as severance payments, the sum of (A) one (1) year of his then Base Salary and other amounts payable to (B) the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: Executive's Target Bonus for the calendar year in which the Executive's termination of employment occurs, payable over a twelve (i12) twelve months of Employee’s Base Salary month period in accordance with the Company's payroll schedule in effect on date of such CC Termination from time to time (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination"Severance Payments"), and (ii) to the Employee’s Average Annual Bonusextent he is then a participant in the Company's health insurance plan and eligible for benefits under plan terms, and only if the benefit under this clause (ii) does not cause the Company to fail to satisfy the requirements of, or be in violation of, Section 2716 of the Public Health Service Act or Section 9815 of the Internal Revenue Code of 1986, as amended (the "Code"), to continued health insurance coverage for one (1) year immediately following such termination at then existing employee contribution rates, which the Executive shall pay (such continued coverage to run concurrently with any continued coverage obligation under the federal law known as COBRA or any state equivalent) (the "COBRA Payments"). If the Company terminates the Executive's employment pursuant to Section 4(a) above or the Executive's employment is terminated pursuant to Section 4(b) above, then, subject to subsections the Executive's (cor, if applicable, his estate's) execution of the Release and the Release becoming effective in accordance with its terms not later than the sixtieth (60th) day following the Executive's termination of employment, the Executive shall be entitled to receive the following severance benefits: (i) one (1) year of his then Base Salary, payable over a twelve (12) month period in accordance with the Company's payroll schedule in effect from time to time (the "Death/Disability Severance Payments"), and (d).
(cii) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made only in a lump sum within sixty (60) days after the date Employee’s event the Company terminates the Executive's employment is terminated giving rise to such Severance Payment pursuant to Section 7(a4(a) above, the COBRA Payments. Such Severance Payments, Death/Disability Severance Payments, and COBRA Payments shall be the Executive's sole AmericasActive:9933006.8 entitlement upon termination of employment pursuant to Sections 4(a), 4(b), or 4(c) above, as applicable. Notwithstanding the foregoing, if the Company's payments under Section 4(e)(ii) (band under Section 5(ii) below) would violate the nondiscrimination rules applicable to non-grandfathered, insured group plans under the Affordable Care Act (the "ACA"); provided that Employee executes , or result in the imposition of penalties under the ACA and delivers the release contemplated by related regulations and guidance promulgated thereunder, the parties agree to reform Section 7(d4(e)(ii) (and such release becomes effective and irrevocableSection 5(ii) below) in a manner as is necessary to comply with the ACA. If such sixty (60) day period spans two calendar yearsSubject to the last paragraph of this Section 4(e), the Severance Payment will be made in Payments or the second calendar year. HoweverDeath/Disability Severance Payments, if Employee is a “specified employee” and the COBRA Payments or the Enhanced COBRA Payments (as defined in regulations Section 5 below) will commence on the sixtieth (60th) day following the Executive's termination of employment with the first payment inclusive of any payments that would have been otherwise payable during such initial sixty (60)-day period. Subject only to the Executive's delivery of an executed Release and such Release becoming effective within the provided sixty (60)-day period, the Company's obligation under this Section 4(e) shall be absolute and unconditional, and the Executive shall be entitled to such severance benefits regardless of the amount of compensation and benefits the Executive may earn or be entitled to with respect to any other employment he may obtain during the period for which severance payments are payable. If the Company terminates the Executive's employment with "cause" pursuant to Section 4(c) above, if the Executive terminates his employment pursuant to Section 4(d) above, or if the Executive's employment terminates as a result of a Notice of Non-Extension provided to the Company by the Executive, then the Executive shall not be entitled to any further payments under this Agreement, including Base Salary, Bonus, Employee Benefits, Severance Payments, Death/Disability Severance Payments, COBRA Payments, Enhanced Severance Payment (as defined in Section 5 below), or Enhanced COBRA Payments (as defined in Section 5 below) except as otherwise required by applicable law, including the payment of any amounts owed to the Executive and any obligation that the Company may have to offer the Executive continued benefit plan participation. To the extent that any amount payable under this Agreement constitutes an amount payable under a "nonqualified deferred compensation plan" (as defined in Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” (hereinafter, "Code Section 409A")) that is subject not exempt from Code Section 409A, and such amount is payable as a result of a "separation from service" (as defined in Code Section 409A), including any amount payable under this Section 4 or Section 5 below, then, notwithstanding any other provision in this Agreement to Section 409A of the Codecontrary, the Severance Payment such payment will not be made on to the Company’s first payroll payment Executive until the day after the date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit B by the 45th day following the Employee’s his separation from service (the "Specified Employee Payment Date"), but only if, as of his separation from service, he is a "specified employee" under Code Section 409A and not revoking any relevant procedures that the release within Company may establish. For the seven (7) days after executing and delivering avoidance of doubt, on the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar yearsSpecified Employee Payment Date, the Severance Payment Executive will be paid in a single lump sum all payments that otherwise would have been made to him under this Agreement during the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 six (6)-month period but were not made because of this Agreementparagraph. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he This paragraph will immediately return to not be applicable after the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7Executive's death.
Appears in 1 contract
Sources: Employment Agreement (ORBCOMM Inc.)
Severance. (a) If the Company terminates Employee’s employment with the Company without Cause in accordance with Section 6(cSubject to Sections II(b) prior to the expiration of the Initial Termand II(c) below, the Company shall pay Employee as severance pay to Executive ("Severance Benefit") twelve payments of Forty Six Thousand One Hundred Sixty Three Dollars ($46,163) per payment, less in each case standard withholding and authorized deductions, with the first such payment being made in June 2007 and a severance subsequent payment an amount equal being made in each of the next eleven calendar months thereafter (ending with the payment in May 2008). In addition, the Company shall pay or reimburse Executive's costs for outplacement services under the Company's outplacement program with Challenger, ▇▇▇▇ and Christmas incurred during the twelve (12) month period following the Separation Date up to twelve months a maximum of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d)$15,000.
(b) If Notwithstanding the foregoing, for a period of twelve (12) months following the Separation Date (the "Mitigation Period"), Executive shall have the affirmative duty to take reasonable efforts to seek other employment in which Executive is reasonably qualified or otherwise to mitigate Executive's right to any and all portions of the Severance Benefit. In the event the Company believes Executive has breached her agreement to seek other employment in which Executive is reasonably qualified or otherwise to mitigate Executive's right to any and all portions of the Severance Benefit, the Company agrees that it will notify Executive in writing (with such notice to be given in accordance with the notice provisions of this Separation Agreement) of such belief not less than fourteen (14) days prior to the Company's termination of any payments otherwise due to Executive pursuant to this Separation Agreement. Any money or other valuable consideration earned or otherwise received by Executive or credited to Executive's account (whether presently or on a deferred basis) from the provision of services (whether as an employee, independent contractor, consultant, advisor, or otherwise) during the Term Mitigation Period shall be offset against and serve to decrease any amounts of the Severance Benefit previously paid or payable to Executive under Section II(a). Executive agrees to notify the Company in writing immediately upon receiving or earning any such money or other valuable consideration. In addition, and without limiting the foregoing, the Company's obligation to pay the Severance Benefit (or any portion thereof, as applicable) is subject to the condition precedent that Executive shall have complied with the restrictive covenants set forth in Section VII hereof. The Company shall have no obligation to pay the Severance Benefit at any time after a breach by Executive of any covenant set forth in Section VII. Notwithstanding the foregoing provisions of this Agreement there Section II(b), however, in no event shall the amount of the Severance Benefit actually paid by the Company to Executive be less than Ten Thousand Dollars ($10,000) in the aggregate, regardless of any breach by Executive of the foregoing, which amount the parties agree is a CC Termination, then good and sufficient consideration for the Employee will be entitled to a severance payment (in addition to any other rights Release and other amounts payable to the Employee obligations of Executive under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d)this Separation Agreement.
(c) Any severance payment payable The Company's obligation to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, pay the Severance Payment will be made in the second calendar year. HoweverBenefit (or any portion thereof, if Employee as applicable) is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and further subject to the Employee’s executing and delivering condition precedent that Executive shall not have revoked the general release of claims Release set forth in the form attached hereto as Exhibit B Section III hereof pursuant to any revocation rights afforded 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 releaseapplicable law. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, The Company shall have no obligation to pay the Severance Payment will be paid Benefit to Executive unless and until the Release becomes irrevocable by Executive under the Age Discrimination in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 Employment Act of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 71967.
Appears in 1 contract
Sources: Employment Separation Agreement (Pacific Sunwear of California Inc)
Severance. In exchange for Employee’s agreement to be bound by the terms of this Release, including, but not limited to, the release of claims in Section 3, Employee shall be entitled to receive the following, which shall be the exclusive severance benefits to which Employee is entitled, unless Employee has materially breached the provisions of this Release, in which case the last sentence of Section 4 shall apply:
(ai) If A cash payment in the amount of twelve (12) months’ base salary, or $427,310, payable in a lump sum within ten (10) days following the Effective Date;
(ii) For the period beginning on the Separation Date and ending on the date which is twelve (12) full months following the Separation Date (or, if earlier, the date on which the applicable continuation period under COBRA expires), the Company terminates shall either, at its option, (i) pay directly or (ii) reimburse Employee, for the costs associated with continuation coverage pursuant to COBRA for Employee and his eligible dependents who were covered under the Company’s employment with health plans as of the Company Separation Date (provided that Employee shall be solely responsible for all matters relating to his continuation of coverage pursuant to COBRA, including, without Cause in accordance with Section 6(climitation, his election of such coverage and his timely payment of premiums). If (A) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the Initial Termperiod of continuation coverage to be, exempt from the application of Code Section 409A under Treasury Regulation Section 1.409A-1(a)(5), or (B) the Company is otherwise unable to continue to cover Employee under its group health plans under applicable law or the terms of such plans, then, in either case, the Company shall instead pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: monthly plan premium payment for Employee and his eligible dependents who were covered under the Company’s health plans as of the Separation Date (icalculated by reference to Employee’s premiums as of the Separation Date) as currently taxable compensation in substantially equal monthly installments over the foregoing twelve months (12) month period (or the remaining portion thereof); plus
(iii) the vesting and/or exercisability of each of Employee’s Base Salary in effect on date outstanding stock options shall be automatically accelerated as to the number of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, shares subject to subsections such stock options that would have vested over the twelve (c12) month period following the Separation Date had Employee remained continuously employed by the Company during such period. Except as modified above, Employee's stock options shall continue to be governed by the terms and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A conditions of the Code stock option agreements and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable equity plan pursuant to this Agreement.
(d) Employee acknowledges and agrees which such stock options were granted. The foregoing benefits shall be the Severance Payment exclusive benefits to which the Employee is entitled under this Section 7 is conditioned upon and subject to in connection with his termination of employment, unless Employee has materially breached the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 provisions of this Agreement. If Employee breaches any Release, in which case the last sentence of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 74 shall apply.
Appears in 1 contract
Sources: General Release of Claims (Conatus Pharmaceuticals Inc.)
Severance. (a) If the Company terminates Employee’s the Executive's employment with without "cause" pursuant to Section 4(c) above (other than following a Change of Control, which is subject to Section 5) or the Executive's employment terminates as a result of a Notice of Non-Extension provided to the Executive by the Company without Cause pursuant to Section 2 above, then, subject to the Executive's execution of the Release attached hereto as Exhibit A (or in a substantially similar form as the Company deems necessary in order to comply with then applicable law) (the "Release") and the Release becoming effective in accordance with Section 6(cits terms not later than the sixtieth (60th) prior to day following the expiration Executive's termination of the Initial Termemployment, the Company Executive shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a receive the following severance payment benefits: (in addition to any other rights i) as severance payments, the sum of (A) one (1) year of his then Base Salary and other amounts payable to (B) the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum Executive's Target Bonus for the calendar year in which the Executive's termination of employment occurs, payable over a twelve (12) month period in accordance with the Company's payroll schedule in effect from time to time (the "Severance Payments"), and (ii) to the extent he is then a participant in the Company's health insurance plan and eligible for benefits under plan terms, and only if the benefit under this clause (ii) does not cause the Company to fail to satisfy the requirements of, or be in violation of, Section 2716 of the Public Health Service Act or Section 9815 of the Internal Revenue Code of 1986, as amended (the "Code"), to continued health insurance coverage for one (1) year immediately following such termination at then existing employee contribution rates, which the Executive shall pay (such continued coverage to run concurrently with any continued coverage obligation under the federal law known as COBRA or any state equivalent) (the "COBRA Payments"). If the Company terminates the Executive's employment pursuant to Section 4(a) above, then, subject to the Executive's execution of the Release and the Release becoming effective in accordance with its terms not later than the sixtieth (60th) day following the Executive's termination of employment, the Executive shall be entitled to receive the following severance benefits: (i) one (1) year of his then Base Salary, payable over a twelve months of Employee’s Base Salary (12) month period in accordance with the Company's payroll schedule in effect on date of such CC Termination from time to time (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination"Disability Severance Payments"), and (ii) the Employee’s Average Annual BonusCOBRA Payments. Such Severance Payments, subject to subsections (c) Disability Severance Payments, and (d).
(c) Any severance payment payable to Employee COBRA Payments shall be the Executive's sole entitlement upon termination of employment pursuant to Sections 4(a) or 4(c) above, as applicable. Notwithstanding the foregoing, if the Company's payments under Section 4(e)(ii) (and under Section 5(ii) below) would violate the nondiscrimination rules applicable to non-grandfathered, insured group plans under the Affordable Care Act (the "ACA"), or result in the imposition of penalties under the ACA and the related regulations and guidance promulgated thereunder, the parties agree to reform Section 4(e)(ii) (and Section 5(ii) below) in a manner as is necessary to comply with the ACA. Subject to the last paragraph of this Section 7 4(e), the Severance Payments or the Disability Severance Payments, and the COBRA Payments or the Enhanced COBRA Payments (a “Severance Payment”as defined in Section 5 below) will be made in a lump sum within commence on the sixtieth (60th) day following the Executive's termination of employment with the first payment inclusive of any payments that would have been otherwise payable during such initial sixty (6060)-day period. Subject only to the Executive's delivery of an executed Release and such Release becoming effective within the provided sixty (60)-day period, the Company's obligation under this Section 4(e) days after shall be absolute and unconditional, and the date Employee’s Executive shall be entitled to such severance benefits regardless of the amount of compensation and benefits the Executive may earn or be entitled to with respect to any other employment he may obtain during the period for which severance payments are payable. If the Executive's employment with the Company is terminated giving rise to such Severance Payment pursuant to Section 7(a4(b) above, if the Company terminates the Executive's employment with "cause" pursuant to Section 4(c) above, if the Executive terminates his employment pursuant to Section 4(d) above, or (b); if the Executive's employment terminates as a result of a Notice of Non-Extension provided that to the Company by the Executive, then the Executive shall not be entitled to any further payments under this Agreement, including Base Salary, Bonus, Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar yearsBenefits, the Severance Payments, Disability Severance Payments, COBRA Payments, Enhanced Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” (as defined in regulations Section 5 below), or Enhanced COBRA Payments (as defined in Section 5 below) except as otherwise required by applicable law, including the payment of any amounts owed to the Executive and any obligation that the Company may have to offer the Executive continued benefit plan participation. To the extent that any amount payable under this Agreement constitutes an amount payable under a "nonqualified deferred compensation plan" (as defined in Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” (hereinafter, "Code Section 409A")) that is subject not exempt from Code Section 409A, and such amount is payable as a result of a "separation from service" (as defined in Code Section 409A), including any amount payable under this Section 4 or Section 5 below, then, notwithstanding any other provision in this Agreement to Section 409A of the Codecontrary, the Severance Payment such payment will not be made on to the Company’s first payroll payment Executive until the day after the date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit B by the 45th day following the Employee’s his separation from service (the "Specified Employee Payment Date"), but only if, as of his separation from service, he is a "specified employee" under Code Section 409A and not revoking any relevant procedures that the release within Company may establish. For the seven (7) days after executing and delivering avoidance of doubt, on the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar yearsSpecified Employee Payment Date, the Severance Payment Executive will be paid in a single lump sum all payments that otherwise would have been made to him under this Agreement during the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 six (6)-month period but were not made because of this Agreementparagraph. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he This paragraph will immediately return to not be applicable after the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7Executive's death.
Appears in 1 contract
Sources: Employment Agreement (ORBCOMM Inc.)
Severance. Notwithstanding any other provision of this Agreement:
(aA) If the Company terminates Employee’s 's employment with the Company terminates pursuant to either Section 4(c) (by the Company without Cause in accordance with Cause) or Section 6(c4(d) prior (by the Employee for Good Reason) (other than a Termination upon Retirement) during the Designated Term, then the Company shall, upon delivery to the expiration Company of a release of any claims of the Initial Term, Employee against the Company shall and its stockholders, directors, officers, employees, agents or other affiliates arising out of his employment relationship (other than claims to any compensation or benefits payable under or to be provided pursuant to this Section 5, or any rights of the Employee under Sections 6 or 7 hereof) executed by the Employee and reasonably satisfactory in form and substance to the Company (a "Severance Release"), --------- ------- continue to pay and provide to the Employee a severance payment an amount equal (A) the compensation payable to twelve months of Employee’s Base Salary as him pursuant to Section 3(a) hereof, and (B) the benefits provided to him pursuant to Section 3(c) hereof (the compensation and benefits described in effect on the date of termination, subject to subsections clauses (cA) and (dB).
, together, such Employee's "Base Severance Compensation"), and, unless ---- --------- ------------ such Termination of Employment was a Termination for Under-Performance, (bC) If during any bonus accrued or earned by the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)the Bonus Plan and attributable to the Employee's performance for the portion of the year prior to his Termination of Employment, on a one-time only basis payable at the time of payment of bonuses to other executive employees under the Bonus Plan, and (D) payable in a lump sum in cash in for each year, 50% of an amount equal to the sum of: compensation payable to the Employee pursuant to Section 3(a), multiplied by a fraction, the numerator of which equals the aggregate bonus actually payable with respect to the preceding year to the Company's other executive employees in the same bonus pay-out range as the Employee was in prior to his Termination of Employment, and the denominator of which equals the aggregate salary of such other executive employees for such preceding year (the compensation described in clauses (C) and (D) together, such Employee's "Variable Severance Compensation") for a period (the "Initial Severance Period") -------- --------- ------------ ------------------------ equal to the longer of (i) twelve months the remainder of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination)Designated Term, and (ii) the Employee’s Average Annual Bonusone-year period following the date of such Termination of Employment, subject but this clause (ii) only being applicable if, prior to subsections the earlier of (cx) the last day of the Designated Term and (dy) the thirtieth (30th) day from the date of such Termination of Employment, the Company shall have notified the Employee in writing of the Company's intention, in the Company's sole discretion, so to extend the Initial Severance Period (such notice, a "Severance Extension --------- --------- Notice"). In the Company's sole discretion, the Company may elect, either in ------ the Severance Extension Notice, or by written notice to the Employee given no later than thirty (30) days prior to the end of the Initial Severance Period (as it may have been extended pursuant to the Severance Extension Notice), to continue to pay and provide to the Employee his Base Severance Compensation for an additional period (the "Additional Severance Period") of up to one year ---------- --------- ------ following the end of the Initial Severance Period (as it may have been extended pursuant to the Severance Extension Notice), provided that the Additional Severance Period shall in no event extend beyond the second anniversary of the Employee's Termination of Employment. Upon payment in full of the Employee's Base Severance Compensation and, if and when applicable, his Variable Severance Compensation, as described in this Section 5(a), the Company's obligations to pay and provide the Employee with any other compensation otherwise payable to him pursuant to Section 3 hereof, and all other rights of the Employee under Sections 2, 3 and 5 hereof, shall cease as of the date of such payment in full.
(cB) Any severance payment payable to Employee If the Employee's employment with the Company terminates pursuant to either Section 4(c) (by the Company without Cause) or Section 4(d) (by the Employee for Good Reason) (other than a Termination upon Retirement) at any time after the end of the Designated Term, then if at the time of such Termination of Employment or within thirty (30) days thereafter, the Company shall, in its sole discretion, so have notified the Employee in writing (such notice, a "Severance --------- Notice") and the Employee shall have executed and delivered to the Company a ------ Severance Release, the Company shall continue to pay and provide to the Employee his Base Severance Compensation and, unless such Termination of Employee was a Termination for Under-Performance, his Variable Severance Compensation for a period of one year following the date of such Termination of Employment (the "Initial Post-Term Severance Period"), provided that, unless the Company shall -------- --------- --------- ------ have notified the Employee in writing at the time of his Termination of Employment that it did not intend to deliver a Severance Notice, the Employee's Base Severance Compensation shall be payable in any event for the portion of the 30-day period following the Termination of Employment prior to the Company's delivery either of a Severance Notice or of notice that the Company did not intend to deliver a Severance Notice. The Company may elect, in its sole discretion, by written notice to the Employee given no later than ninety (90) days prior to the end of the Initial Post-Term Severance Period to extend the period during which the Employee's Base Severance Compensation shall be payable and provided to the Employee for an additional period (also referred to herein as an "Additional ---------- Severance Period") of up to one year from the end of the Initial Post-Term --------- ------ Severance Period, provided that the total period during which his Base Severance Compensation shall be payable and provided to the Employee under this Section 7 5(b) shall in no event extend beyond the second anniversary of the Employee's Termination of Employment. In the event that no Severance Notice has been given within thirty (a “Severance Payment”) will be made in a lump sum within sixty (6030) days after the date of the Employee’s employment is terminated giving rise to such Severance Payment 's Termination of Employment pursuant to either Section 7(a4(c) (by the Company without Cause) or Section 4(d) (bby the Employee for Good Reason) (other than a Termination upon Retirement); provided that , then the Company's obligation to pay and provide the Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made with any compensation shall cease in the second calendar year. However, if Employee is a “specified employee” any event as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six thirtieth (630th) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit B by the 45th day following the date of such Termination of Employment, and all other rights of the Employee under Sections 2, 3 and 5 hereof, shall be deemed to have ceased as of the date of such Termination of Employment. In the event that a Severance Notice is given in accordance with this Section 5(b), then upon payment in full of the Employee’s separation from service 's Base Severance Compensation, and, if and not revoking the release within the seven (7) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar yearswhen applicable, his Variable Severance Compensation as described in this Section 5(b), the Severance Payment will be paid in Company's obligations to pay and provide the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance Employee with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid compensation payable to him pursuant to Section 73 hereof, and all other rights of the Employee under Sections 2, 3 and 5 hereof, shall cease as of the date of such payment in full.
(C) If the Employee's employment with the Company terminates pursuant to any of Sections 4(a) (death or Disability), 4(b) (by the Company for Cause), or 4(e) (by the Employee without Good Reason) hereof, or as a Termination upon Retirement, then the Company's obligations to pay and provide the Employee with any of the compensation payable to him pursuant to Section 3 hereof, and all other rights of the Employee under Sections 2, 3 and 5 hereof, shall cease as of the date of such Termination of Employment.
(D) The Employee shall not be required to mitigate the amount of any compensation payable to him pursuant to Sections 5(a) or 5(b) hereof, by seeking other employment or otherwise, provided, that in the event the Employee obtains other employment during any period for which compensation is being paid pursuant to Sections 5(a) or 5(b), the amount of compensation otherwise payable to the Employee pursuant to either of such sections shall be reduced by 50% for the period during which the Employee is so employed, provided, further, that in the event that the Employee provides evidence reasonably satisfactory to the Company that the amount of the resulting reduction in his compensation otherwise payable pursuant to Sections 5(a) or 5(b) hereof, as the case may be, exceeds the level of his compensation payable from such other employment, then his compensation pursuant to Sections 5(a) or 5(b) hereof, as applicable, shall be reduced for the period of such other employment by an amount equal to the aggregate amount of his compensation from such other employment during such period. The Employee shall promptly notify the Company if he obtains other employment during the applicable period.
(E) Nothing in this Section 5 shall limit any other obligation which the Company may owe the Employee under any insurance policy, employee benefit plan or other retirement plan. Furthermore, upon any Termination of Employment of any type, the Company shall remain obligated to the Employee for (i) any accrued and unpaid base salary and vacation pay, (ii) reimbursement for reasonable out- of-pocket expenses incurred by Employee by or on behalf of the Company or otherwise in the performance of his duties and in accordance with applicable Company policies then in effect, and (iii) unless otherwise specified in any such plan, policy or program, payments or benefits explicitly provided under the terms of any plan, policy or program of the Company in which the Employee was a participant, or as otherwise required by applicable law.
Appears in 1 contract
Severance. (ai) If Except to the extent provided in subsection (ii) below, in the event that the Executive's employment is terminated (A) by the Company terminates Employee’s employment with pursuant to Section 4(d) or (B) by the Company without Cause Executive in accordance with Section 6(c) prior to the expiration of the Initial Term4(e), the Company shall pay Employee a Executive will be entitled to (a) monthly severance payment payments, each in an amount equal to twelve months 1/12 of Employee’s the sum of (1) the Base Salary as in effect on at the time of such termination and (2) the Executive's target fiscal year bonus at the time of termination, pro-rated to the date of termination, subject to subsections (c) and (db) the continuation of benefits for the Executive and his family as set forth in Section 3(d), to the extent permitted by the terms of such plans and by applicable law, in each case for a period of twelve months following such termination. In addition, the Repurchase Right in the Stock Option shall lapse as to 125,000 shares of Common Stock of the Company, adjusted in the event of a stock split, stock dividend or similar transaction.
(bii) If during In the Term event that the Executive's employment is terminated following a Change of Control (A) by the Executive in accordance with Section 4(f) more than six months but less than twelve months following the Change of Control, (B) by the Executive in accordance with Section 4(e) within six months of the Change of Control or (C) by the Company in accordance with Section 4(d) within six months of the Change of Control, the Executive shall be paid, within ten business days following termination of employment, a lump sum cash amount equal to three hundred percent (300%) of the sum of (A) the Executive's Base Salary immediately prior to the Change of Control and (B) the average of the bonuses paid to the Executive for the two fiscal years immediately preceding the Change of Control or, if two fiscal years have not elapsed, the bonus paid to the Executive for the fiscal year immediately preceding the Change of Control or, if one fiscal year has not elapsed, the target bonus for the not-yet elapsed fiscal year (collectively, the "Change of Control Payment"). In addition, to the extent the Company is able to do so under its existing plans and arrangements, the Company shall continue for a period of three years from the date of termination to provide the Executive with the benefits referred to under Section 3(d) of this Agreement there (subject to any contributions required of plan participants generally). The Company's obligation to provide each such benefit shall terminate immediately upon the Executive's becoming eligible (either as a participant or a dependent) to participate in a plan providing comparable benefits sponsored by another employer, except that the Company shall pay any increase in the contribution to premiums required of Executive (or the plan participant of whom the Executive is a CC Terminationdependent, then if applicable) in order to participate in such other employer's plan.
(iii) The Executive may elect to reduce the Employee will be entitled to a severance payment total Change of Control Payment so that not more than 299% of the Executive's Base Compensation (in addition to any other rights and other amounts for purposes of I.R.C. Section 280G) is payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d)Executive.
(civ) Any The Company's obligation to pay and provide the severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled benefits under this Section 7 is conditioned upon on the Executive's prior execution and subject delivery (without subsequent revocation, to the Employee’s executing extent permitted therein) of a release and delivering waiver, in a form reasonably acceptable to the general release Executive, releasing all claims the Executive may have with respect to the termination of claims in the form attached hereto as Exhibit B his employment by the 45th day following the Employee’s separation from service Company except for claims based upon monies or benefits then earned or accrued and not revoking the release within the seven (7) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7unpaid.
Appears in 1 contract
Sources: Employment Agreement (Genrad Inc)
Severance. (a) If Provided the Separation Date occurs, the Company terminates Employeeand the Executive agree that the Executive’s separation from employment with the Company without Cause will be treated as a “Qualifying Termination” (as defined in accordance with Section 6(cthe Employment Agreement), provided that the employment is not terminated due to a termination for “Cause” (as defined in the Employment Agreement) prior to the expiration of the Initial Term, the Separation Date. Accordingly,
(a) The Company shall pay Employee a the Executive an aggregate cash severance payment an amount equal to twelve months of Employee’s Base Salary as Two Million and Forty-Thousand Dollars ($2,040,000.00) payable in effect on a lump sum, less all applicable taxes, withholdings and deductions, in the first payroll period following the date of terminationon which the Agreement becomes effective and non-revocable, and as provided for in the Employment Agreement, subject to subsections (c) Sections 2.3, 2.4 and (d)4.6 below.
(b) If during Effective as of the Term of this Agreement there is a CC TerminationTermination Date, then and subject to Sections 2.3, 2.4 and 4.6 below, the Employee will Executive’s outstanding incentive equity awards shall be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: treated as set forth below:
(i) twelve months All of Employeethe Executive’s Base Salary in effect on date of such CC Termination outstanding time-based restricted stock units (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance PaymentRSUs”) which would have otherwise vested within one year following the Termination Date (totaling 16,737 RSUs) will become vested as of the Termination Date and settled in shares of Company common stock, to be made in a lump sum provided to the Executive within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment Termination Date, pursuant to Section 7(athe terms and conditions of (a) or the Wyndham Hotels & Resorts, Inc. 2018 Equity and Incentive Plan and (b) Award Agreement – Restricted Stock Units, each dated (x) June 1, 2018, (y) February 27, 2019 and (z) February 25, 2020, between the Company and the Executive.
(ii) All of the Executive’s stock options which would have otherwise vested within one year following the Termination Date (totaling 30,541 options) will become vested as of the Termination Date and shall remain outstanding and exercisable for a period of two (2) years (but not beyond the original expiration date) immediately following the Termination Date, pursuant to the terms and conditions of (a) the Wyndham Hotels & Resorts, Inc. 2018 Equity and Incentive Plan and (b) Award Agreement – Non-Qualified Stock Options, each dated (x) June 1 2018, (y) February 27, 2019 and (z) February 25, 2020, between the Company and the Executive.
(iii) The Executive’s performance-based long term incentive awards (“PVRSUs”) held as of the Termination Date, shall vest and be paid pro-rata (totaling 11,832 shares); provided that Employee executes and delivers , based upon the release contemplated portion of the full performance period during which Executive was employed by Section 7(dthe Company plus twelve (12) and such release becomes effective and irrevocable. If such sixty months (60) day period spans two calendar yearsor if less, the Severance entire performance period remaining after the Termination Date), provided only that the performance goals applicable to the PVRSUs are achieved. Payment of any such PVRSUs will be made occur at the same time that such PVRSUs are paid to actively-employed employees generally, as set forth in the second calendar yearEmployment Agreement. HoweverThe Executive has no other outstanding incentive awards, if Employee is a equity awards or equity rights with the Company or any Released Party (“specified employeeReleased Party” defined throughout the Agreement herein as defined in regulations under the Release identified in Section 409A 2.4 and attached hereto as Exhibit A), except as set forth in subsection (b) and (h) and herein. For the avoidance of doubt, the Executive is not entitled to any future Company incentive awards or equity rights that may otherwise be provided to officers or employees of the Code Company after the date of this Agreement (January 19, 2021). Furthermore, for the avoidance of doubt, except as provided for in subsection (b) herein, nothing contained herein shall affect the terms of restricted stock shares or other equity compensation previously awarded to the Executive, under the Wyndham Hotels & Resorts, Inc. 2018 Equity and Incentive Plan, as amended from time to time (“WHR Plan”) which shall continue to be governed under the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A terms and conditions of the Code, the Severance Payment will WHR Plan.
(c) The Executive shall continue to be made on eligible to participate in the Company’s first payroll payment date that is more than six (6Officer Deferred Compensation Plan and 401(k) months Plan up to and including the Severance Payment is otherwise payable pursuant to this AgreementSeparation Date, in accordance with the terms thereof.
(d) Employee acknowledges and agrees The Executive shall continue to participate in the Severance Payment to health plans in which she currently participates through the end of the month in which the Employee Separation Date occurs. Following the Separation Date, the Executive may elect to continue dental and vision plan coverage in accordance with the provisions of the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), at her own expense; provided that the Company shall provide the Executive with a cash payment of twenty-nine thousand three hundred and fifty-four dollars ($29,354.00), less applicable taxes, withholdings and deductions (the “Health Reimbursement Payment”), which is meant to represent eighteen (18) months of the Executive’s estimated COBRA premiums for such coverage. The Health Reimbursement Payment shall be paid in a lump sum on or before the sixtieth (60th) day following the Separation Date, subject to Sections 2.3, 2.4 and 4.6 below.
(e) To the extent the Executive would otherwise be entitled as an executive of the Company to participate in the Company’s executive health physical program, such entitlement will be provided to the Executive through December 31, 2021.
(f) The Executive shall be eligible to continue to use the vehicle provided to her through the Company’s executive car lease program in which she currently participates, upon the same terms as currently are in effect for her, through the Separation Date and for a grace period of up to 15 calendar days thereafter. The Executive shall have the option to purchase the vehicle in accordance with the terms of such program for use, at her own expense. If the Executive chooses not to purchase the vehicle, the Executive shall relinquish the vehicle to the Company’s Human Resources Department on or before March 15, 2021.
(g) The Executive shall be entitled to outplacement services rendered by a firm selected by the Company, provided the services are utilized no later than twelve (12) months following the Separation Date.
(h) To the extent not otherwise paid prior to the Separation Date, the Executive will receive a 2020 Incentive Payment, in the form of an additional lump sum payment, subject to applicable taxes, withholdings and deductions, made payable, to the extent made payable and in the percentage made payable to actively employed associates of the Company, at the same time that incentive compensation awards, if any, for calendar year 2020 are paid. The 2020 Incentive Payment will be made subject to and determined based on the Company’s attainment of applicable performance goals, as certified, and in accordance with the terms and conditions of the Wyndham Hotels & Resorts 2020 Global Annual Incentive Plan.
(i) The Executive may continue to use the financial services provided through the AYCO Company through the 2021 tax season ending on April 15, 2022.
(j) Notwithstanding any other provision of this Agreement or the Employment Agreement, all payments to, vesting, benefits, and other rights of the Executive under this Section 7 is conditioned upon and 2.1 shall be subject to Sections 2.3, 2.4 and 4.6 of this Agreement. In addition, and without limitation of its rights at law or in equity, the Employee’s executing Company reserves the right to suspend payments to, vesting, benefits and delivering other rights of the general release Executive if the Company has a belief that the Executive is in breach of claims Section 3 of this Agreement, or otherwise is in breach of any representation, affirmation or acknowledgement by Executive under this Agreement or the form Release as defined in Section 2.4 herein and attached hereto as Exhibit B by the 45th day following the Employee’s separation from service and not revoking the release within the seven A.
(7k) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar yearsExcept as provided in this Section 2.1, the Severance Payment Executive acknowledges and agrees that she is not entitled to any severance benefits under any other severance plan, arrangement, agreement or program of the Company or its affiliates, or any of the Released Parties or any Released Party.
(l) The Executive shall be entitled to keep her Company-issued iPhone (including the telephone number associated with the iPhone) (“Phone”), iPad (“iPad”), and laptop computer (“Laptop”). The Executive will provide the Company’s Information Security and Information Technology Departments with her Phone, iPad and Laptop, and the Company shall be paid in permitted to image the second calendar year. Employee’s right Phone, iPad and Laptop, remove and replace the hard drive associated with the Laptop and otherwise erase all information from the Phone, iPad and Laptop, and then return the Phone, iPad and Laptop to the Severance Payment is further conditioned upon Employee’s continued compliance Executive for her personal use. The Executive shall assume all financial responsibility associated with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreementthe Phone, he will immediately return to the Company any portion iPad and Laptop as of the Severance Payment that has been paid to him pursuant to Section 7Separation Date. The Company will provide reasonable transitional IT assistance.
Appears in 1 contract
Sources: Separation and Release Agreement (Wyndham Hotels & Resorts, Inc.)
Severance. (a) If “Severance” shall mean payment by the Company terminates for the applicable severance period of (i) Employee’s employment with base salary at the Company without Cause in accordance with Section 6(c) prior to the expiration of the Initial Term, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as rate in effect on at the date time of termination, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) termination payable in a lump sum in cash in an within ten (10) days following the date of the Employee’s termination of employment; plus (ii) provided that the Employee elects continued coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), the Company shall reimburse the Employee for the COBRA premiums for the Employee’s continued group health insurance coverage, including coverage for the Employee’s eligible dependents; provided, however, that the Company shall reimburse the Employee for premiums for the Employee’s eligible dependents only for coverage for which those eligible dependents were enrolled immediately prior to the date of termination; provided, further, that the Employee shall be solely responsible for all matters relating to his continuation of coverage pursuant to federal COBRA law, including, without limitation, the election of such coverage and the timely payment of premiums; provided, further, that no premium reimbursements will be made following the effective date of the Employee’s coverage by a health insurance plan of a subsequent employer; plus (iii) am amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, target annual bonus for the highest Base Salary in effect fiscal year during the three year period ending on which the date of termination occurs, with such CC Termination)bonus determined assuming that all of the performance objectives for such fiscal year have been attained, and (ii) prorated based on the Employee’s Average Annual Bonusnumber of days during such fiscal year the Employee was employed by the Company, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty ten (6010) days after following the date of the Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers termination of employment. To the release contemplated maximum extent permitted by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar yearsapplicable law, the Severance Payment will payable to the Employee pursuant to this Agreement shall be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned reliance upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.Treasury Regulation
Appears in 1 contract
Sources: Retention Agreement
Severance. In the event of 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 or death, then Company shall pay or provide to Executive (aor Executive’s estate, as applicable) If the Company terminates Employeefollowing: (i) his Base Salary through the date Executive’s employment with Company ceases (the Company without Cause “Date of Termination”) not theretofore paid, (ii) any amount or benefit arising from the Executive’s participation in, or benefits under, any employee benefit plans, programs or arrangements of the Company, which amounts shall be payable in accordance with Section 6(cthe terms and conditions of such employee benefit plans, programs or arrangements, including payment of accrued vacation, (iii) prior reimbursement for business expenses properly incurred through the Date of Termination, payable pursuant to Company expense policy; (the amounts and benefits in (i), (ii) and (iii), the “Accrued Benefits”); and (iv) pro rata Target Bonus for the fiscal year of termination of employment, based upon the number of days Executive was employed by the Company in the fiscal year of termination (the “Pro Rata Bonus”), with the amounts in clauses (i) through (iv) payable no later than the 60th day following the Date of Termination.
b. If Company terminates this Agreement and Executive’s employment hereunder in a “Qualifying Termination” (as such term is defined in the Severance Plan), then Executive shall be entitled to the expiration payments and benefits provided for in the Severance Plan, as they may be increased from time to time, subject to the terms and conditions of the Initial TermSeverance Plan. Additionally, notwithstanding anything to the Company shall pay Employee contrary in the Severance Plan, upon a severance payment an amount equal Qualifying Termination under the Severance Plan, Executive will retain Executive’s then-outstanding performance stock units (“PSUs”), which PSUs will remain eligible to twelve months vest based on actual performance as measured on the applicable performance date.
c. If Executive terminates this Agreement and Executive’s employment hereunder in a Qualified Retirement, then (i) all of EmployeeExecutive’s Base Salary as in effect on outstanding restricted stock units (“RSUs”) will fully accelerate and vest and will be paid within the sixty (60)-day period following the date of terminationsuch Qualified Retirement, subject to subsections in the form of, at the discretion of the Board, either (cx) and shares of the Company’s common stock or (d).
(by) If during the Term of this Agreement there is a CC Terminationcash, then the Employee will be entitled to a severance with each cash payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months closing value of Employeethe shares of the Company’s Base Salary in effect on date of such CC Termination (or, if greater, stock underlying the highest Base Salary in effect during the three year period ending RSUs on the date of such CC Qualified Retirement (or the next trading date if such date was not a trading date), less all applicable withholding taxes, and (ii) Executive will retain Executive’s then-outstanding PSUs, which PSUs will remain eligible to vest based on actual performance as measured on the applicable performance date; provided, in each case, that if notice for such Qualified Retirement is given within the six (6) month period following the date of grant of any RSUs or PSUs (the RSUs and PSUs granted during such period, the “Recent Awards”), then Executive will only receive acceleration of or retain and continue to be eligible to vest into, as applicable, a pro-rata portion of such Recent Awards based on Executive’s Date of Termination. For the avoidance of doubt, upon the occurrence of a Qualified Retirement, Executive shall not be entitled to any additional severance or benefits other than the Accrued Benefits and those benefits set forth in this Section 10.c.
d. For any termination other than those listed in Section 10.a.-c. and g., Executive shall receive only the Accrued Benefits.
e. Upon termination for any 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 investigation or litigation/future investigation or litigation as requested by Company. Any such cooperation shall be subject to Executive’s business and personal commitments and shall not require Executive to cooperate against his own legal interests. Company shall reimburse Executive for all reasonable expenses incurred in such cooperation (including travel expenses at the levels utilized by Executive during his employment and legal expenses incurred if Executive reasonably believes independent counsel to be appropriate).
f. To be eligible for any payments under this Section 10 beyond the Accrued Benefits, Executive must (i) execute and deliver to Company a final and complete release in the form attached as Exhibit E hereto, which is nonrevocable within 45 days following the Date of Termination (the “Release”), and (ii) be in compliance in all material respects with this Agreement and each of the Employee’s Average Annual BonusAncillary Agreements, subject to subsections (c) provided, that, any noncompliance may be cured within 30 days after written notice from the Company of the noncompliance. For the avoidance of doubt, the execution and (d)non-revocation of the Release in accordance with this Section 10.e. shall satisfy any requirements under the Severance Plan regarding the execution and non-revocation of a release of claims.
(c) Any severance payment payable to Employee pursuant to this Section 7 (g. In the event of a “Qualifying Termination under Executive’s separate Change in Control Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar yearsAgreement, the Severance Payment provisions of that separate agreement shall apply and the Executive will not be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations entitled to any severance payments under Section 409A 10 of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 1 contract
Sources: Employment Agreement (Compass Minerals International Inc)
Severance. (a) If the Company terminates Employee’s employment with Term is terminated by the Company without Cause in accordance with Section 6(cfor Cause,
(i) prior the Company and the Partnership will pay to the expiration of the Initial Term, the Company shall pay Employee a severance payment Executive an aggregate amount equal to twelve months of Employeethe Executive’s Base Salary as in effect on accrued and unpaid base salary through the date of such termination;
(ii) all unvested options and unvested restricted shares will terminate immediately; and
(iii) any vested options issued pursuant to the Company’s Incentive Plan and held by the Executive at termination, subject to subsections will expire ninety (c90) and (d)days after the termination date.
(b) If during the Term is terminated by the Executive other than because of death, Disability or for Good Reason,
(i) the Company and the Partnership will pay to the Executive an aggregate amount equal to the Executive’s accrued and unpaid base salary through the date of such termination;
(ii) all unvested options and unvested restricted shares terminate immediately; and
(iii) any vested options issued pursuant to the Company’s Incentive Plan and held by the Executive at termination, will expire ninety (90) days after the termination date.
(c) If the Term is terminated upon the Executive’s death or Disability,
(i) the Company and the Partnership will pay to the Executive’s estate or the Executive, as the case may be, a lump sum payment equal to the Executive’s base salary through the termination date, plus a pro rata portion of the Executive’s bonus for the fiscal year in which the termination occurred;
(ii) the Company will make payments for one (1) year of all compensation otherwise payable to the Executive pursuant to this Agreement there Agreement, including, but not limited to, base salary, bonus and welfare benefits; and
(iii) all of the Executive’s unvested stock options will immediately vest and such options, along with those previously vested and unexercised, will become exercisable for a period of one (1) year thereafter.
(d) Subject to Section 5(e) hereof, if the Term is terminated by the Company without Cause or other than by reason of Executive’s death or Disability, in addition to any other remedies available, or if the Executive terminates the Term for Good Reason,
(i) the Company and the Partnership shall pay the Executive a CC Terminationlump sum equal to the product of (x) one (1) times the sum of (A) the Executive’s then annual base salary and (B) the amount of the Executive’s bonus for the preceding year, then or in the Employee case of the initial year of the Executive’s employment, the bonus amount will be entitled to $157,500;
(ii) all of the Executive’s unvested stock options will immediately vest and such options, along with those previously vested, will become exercisable for a severance payment period of one (1) year thereafter; and
(iii) and the Company shall continue in effect the Executive’s health insurance benefits until the earlier of (x) one (1) year from the end of the term or (y) the date on which the Executive obtains health insurance coverage from a subsequent employer.
(e) If, within eighteen (18) months following a Change in Control, the Term is terminated by the Executive for Good Reason, or by the Company without Cause, or if the Agreement is not renewed by the Company in accordance with Section 1, in addition to any other rights and other amounts payable to which the Employee Executive may have under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greaterlaw or otherwise, the highest Base Salary Executive shall receive the same payments and benefits provided for under Section 5(d) hereof; provided, that the amount of the multiplier described in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and clause (d)) of Section 5 hereof shall be increased from one times to one and one-half (1 1/2) times.
(cf) Any severance payment payable to Employee If at any time the Term is not extended pursuant to the proviso to Section 1 hereof as a result of the Company giving notice thereunder that it elects to permit the term of this Section 7 (a “Severance Payment”) will Agreement to expire without extension, the Company shall be made in a lump sum within sixty (60) days after deemed to have terminated the date EmployeeExecutive’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreementwithout Cause.
(dg) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar yearsAs used herein, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.term “Cause” means:
Appears in 1 contract
Sources: Executive Employment Agreement (Meristar Hospitality Corp)
Severance. Notwithstanding any other provision of this Agreement:
(aA) If the Company terminates Employee’s 's employment with the Company terminates pursuant to either Section 4(c) (by the Company without Cause in accordance with Cause) or Section 6(c4(d) prior (by the Employee for Good Reason) (other than a Termination upon Retirement) during the Designated Term, then the Company shall, upon delivery to the expiration Company of a release of any claims of the Initial Term, Employee against the Company shall and its stockholders, directors, officers, employees, agents or other affiliates arising out of his employment relationship (other than claims to any compensation or benefits payable under or to be provided pursuant to this Section 5, or any rights of the Employee under Sections 6 or 7 hereof) executed by the Employee and reasonably satisfactory in form and substance to the Company (a "Severance Release"), --------- ------- continue to pay and provide to the Employee a severance payment an amount equal (A) the compensation payable to twelve months of Employee’s Base Salary as him pursuant to Section 3(a) hereof, and (B) the benefits provided to him pursuant to Section 3(c) hereof (the compensation and benefits described in effect on the date of termination, subject to subsections clauses (cA) and (dB).
, together, such Employee's "Base Severance Compensation"), and, unless ---- --------- ------------ such Termination of Employment was a Termination for Under-Performance, (bC) If during any bonus accrued or earned by the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)the Bonus Plan and attributable to the Employee's performance for the portion of the year prior to his Termination of Employment, on a one-time only basis payable at the time of payment of bonuses to other executive employees under the Bonus Plan, and (D) payable in a lump sum in cash in for each year, 50% of an amount equal to the sum of: compensation payable to the Employee pursuant to Section 3(a), multiplied by a fraction, the numerator of which equals the aggregate bonus actually payable with respect to the preceding year to the Company's other executive employees in the same bonus pay-out range as the Employee was in prior to his Termination of Employment, and the denominator of which equals the aggregate salary of such other executive employees for such preceding year (the compensation described in clauses (C) and (D) together, such Employee's "Variable Severance Compensation") for a period (the "Initial Severance Period") -------- --------- ------------ ------- --------- ------ equal to the longer of (i) twelve months the remainder of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination)Designated Term, and (ii) the Employee’s Average Annual Bonusone-year period following the date of such Termination of Employment, subject but this clause (ii) only being applicable if, prior to subsections the earlier of (cx) the last day of the Designated Term and (dy) the thirtieth (30th) day from the date of such Termination of Employment, the Company shall have notified the Employee in writing of the Company's intention, in the Company's sole discretion, so to extend the Initial Severance Period (such notice, a "Severance Extension --------- --------- Notice"). In the Company's sole discretion, the Company may elect, either in the ------ Severance Extension Notice, or by written notice to the Employee given no later than thirty (30) days prior to the end of the Initial Severance Period (as it may have been extended pursuant to the Severance Extension Notice), to continue to pay and provide to the Employee his Base Severance Compensation for an additional period (the "Additional Severance Period") of up to one year ---------- --------- ------ following the end of the Initial Severance Period (as it may have been extended pursuant to the Severance Extension Notice), provided that the Additional Severance Period shall in no event extend beyond the second anniversary of the Employee's Termination of Employment. Upon payment in full of the Employee's Base Severance Compensation and, if and when applicable, his Variable Severance Compensation, as described in this Section 5(a), the Company's obligations to pay and provide the Employee with any other compensation otherwise payable to him pursuant to Section 3 hereof, and all other rights of the Employee under Sections 2, 3 and 5 hereof, shall cease as of the date of such payment in full.
(cB) Any severance payment payable to Employee If the Employee's employment with the Company terminates pursuant to either Section 4(c) (by the Company without Cause) or Section 4(d) (by the Employee for Good Reason) (other than a Termination upon Retirement) at any time after the end of the Designated Term, then if at the time of such Termination of Employment or within thirty (30) days thereafter, the Company shall, in its sole discretion, so have notified the Employee in writing (such notice, a "Severance --------- Notice") and the Employee shall have executed and delivered to the Company a ------ Severance Release, the Company shall continue to pay and provide to the Employee his Base Severance Compensation and, unless such Termination of Employee was a Termination for Under-Performance, his Variable Severance Compensation for a period of one year following the date of such Termination of Employment (the "Initial Post-Term Severance Period"), provided that, unless the Company shall ------- --------- --------- ------ have notified the Employee in writing at the time of his Termination of Employment that it did not intend to deliver a Severance Notice, the Employee's Base Severance Compensation shall be payable in any event for the portion of the 30-day period following the Termination of Employment prior to the Company's delivery either of a Severance Notice or of notice that the Company did not intend to deliver a Severance Notice. The Company may elect, in its sole discretion, by written notice to the Employee given no later than ninety (90) days prior to the end of the Initial Post-Term Severance Period to extend the period during which the Employee's Base Severance Compensation shall be payable and provided to the Employee for an additional period (also referred to herein as an "Additional ---------- Severance Period") of up to one year from the end of the Initial Post-Term --------- ------ Severance Period, provided that the total period during which his Base Severance Compensation shall be payable and provided to the Employee under this Section 7 5(b) shall in no event extend beyond the second anniversary of the Employee's Termination of Employment. In the event that no Severance Notice has been given within thirty (a “Severance Payment”) will be made in a lump sum within sixty (6030) days after the date of the Employee’s employment is terminated giving rise to such Severance Payment 's Termination of Employment pursuant to either Section 7(a4(c) (by the Company without Cause) or Section 4(d) (bby the Employee for Good Reason) (other than a Termination upon Retirement); provided that , then the Company's obligation to pay and provide the Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made with any compensation shall cease in the second calendar year. However, if Employee is a “specified employee” any event as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six thirtieth (630th) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit B by the 45th day following the date of such Termination of Employment, and all other rights of the Employee under Sections 2, 3 and 5 hereof, shall be deemed to have ceased as of the date of such Termination of Employment. In the event that a Severance Notice is given in accordance with this Section 5(b), then upon payment in full of the Employee’s separation from service 's Base Severance Compensation, and, if and not revoking the release within the seven (7) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar yearswhen applicable, his Variable Severance Compensation as described in this Section 5(b), the Severance Payment will be paid in Company's obligations to pay and provide the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance Employee with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid compensation payable to him pursuant to Section 73 hereof, and all other rights of the Employee under Sections 2, 3 and 5 hereof, shall cease as of the date of such payment in full.
(C) If the Employee's employment with the Company terminates pursuant to any of Sections 4(a) (death or Disability), 4(b) (by the Company for Cause), or 4(e) (by the Employee without Good Reason) hereof, or as a Termination upon Retirement, then the Company's obligations to pay and provide the Employee with any of the compensation payable to him pursuant to Section 3 hereof, and all other rights of the Employee under Sections 2, 3 and 5 hereof, shall cease as of the date of such Termination of Employment.
(D) The Employee shall not be required to mitigate the amount of any compensation payable to him pursuant to Sections 5(a) or 5(b) hereof, by seeking other employment or otherwise, provided, that in the event the Employee obtains other employment during any period for which compensation is being paid pursuant to Sections 5(a) or 5(b), the amount of compensation otherwise payable to the Employee pursuant to either of such sections shall be reduced by 50% for the period during which the Employee is so employed, provided, further, that in the event that the Employee provides evidence reasonably satisfactory to the Company that the amount of the resulting reduction in his compensation otherwise payable pursuant to Sections 5(a) or 5(b) hereof, as the case may be, exceeds the level of his compensation payable from such other employment, then his compensation pursuant to Sections 5(a) or 5(b) hereof, as applicable, shall be reduced for the period of such other employment by an amount equal to the aggregate amount of his compensation from such other employment during such period. The Employee shall promptly notify the Company if he obtains other employment during the applicable period.
(E) Nothing in this Section 5 shall limit any other obligation which the Company may owe the Employee under any insurance policy, employee benefit plan or other retirement plan. Furthermore, upon any Termination of Employment of any type, the Company shall remain obligated to the Employee for (i) any accrued and unpaid base salary and vacation pay, (ii) reimbursement for reasonable out- of-pocket expenses incurred by Employee by or on behalf of the Company or otherwise in the performance of his duties and in accordance with applicable Company policies then in effect, and (iii) unless otherwise specified in any such plan, policy or program, payments or benefits explicitly provided under the terms of any plan, policy or program of the Company in which the Employee was a participant, or as otherwise required by applicable law.
Appears in 1 contract
Sources: Employment, Non Competition and Stock Repurchase Agreement (Impac Group Inc /De/)
Severance. (a) If Subject to your execution and the Company terminates Employee’s employment with the Company without Cause in accordance with Section 6(c) prior to the expiration effectiveness of the Initial Termrelease attached hereto as Exhibit A hereto (the “Release of Claims”) and your continued compliance with each of the Confidentiality, Non-Competition and Intellectual Agreement dated November 10, 2006 between you and the Company, and the Confidentiality, Non-Competition and Intellectual Agreement dated November 10, 2006 between you and GPS CCMP Acquisition Corp. (“Acquisition Corp.”) (collectively, the Company “Non-Compete Agreements”), in addition to any salary payments and payments for unused vacation time owing for or through the final payroll period through the Separation Date, you shall pay Employee a severance receive the following payments and benefits for the periods indicated, less any payroll deductions required by law, which shall be in lieu of any other payments or benefits (including vacation or other paid leave time) to which you otherwise might be entitled:
a. payment of an amount equal to twelve 150% of your current bi-weekly base salary (i.e., $34,615.38, which is 150% multiplied by $23,076.92), payable in accordance with the standard payroll practices of the Company, for a period of 18 months of Employee’s Base Salary as in effect on commencing after the date of termination, subject to subsections Separation Date and not less that eight (c) and (d).
(b) If during the Term of 8) days after this Agreement there is a CC Termination, then and the Employee will be entitled to a severance payment (in addition to any other rights Release of Claims are signed and other amounts payable returned to the Employee under Company;
b. at such time as the Company plans makes payment of annual bonuses to its senior executives in which Employee is a participantrespect of the 2007 fiscal year, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in payment of an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average any earned Annual Bonus, subject Bonus that you would have otherwise been entitled to subsections (c) and (d).
(c) Any severance payment payable receive with respect to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six 2007 fiscal year;
c. the Company shall maintain Continued Benefits for the continued benefit of yourself, your spouse and your dependents for a period of 18 months commencing on the Separation Date (6) months the Severance Payment is otherwise payable pursuant to this Agreement.“Continued Benefits Period”); and
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit B by the 45th day d. following the Employee’s separation from service and not revoking Continued Benefits Period, you shall be entitled to full COBRA rights; provided, however, if you elect to utilize rights under COBRA after the release within the seven (7) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar yearsSeparation Date, the Severance Payment will you shall be paid responsible for all premiums in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreementrespect thereof, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7as permitted by law.
Appears in 1 contract
Severance. (a) If Severance pay in the Company terminates Employee’s employment with amount of the Company without 9 months of the Base Salary, if termination is for any reason other than Cause in accordance with Section 6(c) prior to the or expiration of the Initial TermEmployment Term or resignation by Executive. Severance pay, if any, will be payable in 18 equal bi-weekly installments. Executive will be required to execute and return the Company’s form Separation and Release of Claims Agreement (“Separation and Release”) within 45 days after Executive’s termination of employment in order to be eligible to receive the severance pay described above. Payment of Executive’s severance shall commence no earlier the 7 calendar days after the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on receives the date of termination, subject to subsections (c) executed Separation and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights Release and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) no later than 90 days after the date Employeeof Executive’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or separation from service (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations Section 1.409A 1(h) of the Treasury Regulations) (“Separation from Service”), the exact date to be determined by the Company in its sole discretion, provided that Executive timely executes and returns the Separation and Release and does not subsequently revoke such execution. For all purposes of Section 409A of the Internal Revenue Code (the “Code”) and the related regulations, Executive’s entitlement to severance pay pursuant to this Agreement shall be treated as an entitlement to a series of separate payments. To the extent permitted under Section 409A of the Code and the Severance Payment constitutes related regulations, any such payments that are excluded from the definition of “nonqualified deferred deferral of compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 71.409A-1(b)(4) of the Treasury Regulations shall not be taken into account in determining the eligibility of the remaining severance payments for exclusion from the definition of “deferral of compensation” pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations. “Cause” shall mean (i) Executive’s continued failure or refusal to substantially perform Executive’s duties hereunder for a period of 10 days following written notice by the Company to Executive of such failure or refusal, (ii) dishonesty in the performance of Executive’s duties hereunder, (iii) an act or acts on Executive’s part constituting (x) a felony under the laws of the United States or any state thereof or (y) a misdemeanor involving moral turpitude, (iv) Executive’s willful malfeasance or willful misconduct in connection with Executive’s duties hereunder or any act or omission which is materially injurious to the financial condition or business reputation of the Company or any of its subsidiaries or affiliates, (v) Executive’s unsatisfactory job performance, or (vi) Executive’s breach of any provision of this agreement, including the attached addendum. Additionally, if Executive becomes physically or mentally incapacitated for a continuous period of 90 days or more, the Company has the right to terminate Executive’s employment without paying severance. For the purposes hereof, the term “physical or mental incapacity” means Executive’s inability to perform the principal duties as contemplated by this agreement.
Appears in 1 contract
Sources: Employment Agreement (Ami Celebrity Publications, LLC)
Severance. (a) If Employee has a separation from service (a “Separation from Service”) within the Company terminates meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), as a result of Employee’s employment with discharge by the Company without Cause (as defined below in accordance with Section 6(c1(e)) prior within twelve (12) months following the Effective Date, Employee shall be entitled to the expiration receive, in lieu of any severance benefits to which Employee may otherwise be entitled under any severance plan or program of the Initial TermCompany, the benefits provided below, which will be payable in a lump sum within ten (10) days following the effective date of Employee’s Release (as defined below in Section 1(c)):
(i) The Company shall pay to Employee a his fully earned but unpaid base salary, when due, through the date of Employee’s Separation from Service at the rate then in effect, plus all other benefits, if any, under any Company group retirement plan, nonqualified deferred compensation plan, equity award plan or agreement, health benefits plan or other Company group benefit plan to which Employee may be entitled pursuant to the terms of such plans or agreements at the time of Employee’s Separation from Service (the “Accrued Obligations”); and
(ii) Subject to Section 1(c) and Employee’s continued compliance with Section 3, Employee shall be entitled to receive severance payment pay in an amount equal to twelve months (12) months’ of Employee’s Base Salary base salary, as in effect on immediately prior to the date of terminationEmployee’s Separation from Service, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to within ten (10) days following the sum of: (i) twelve months effective date of Employee’s Base Salary Release (as defined below in effect on date Section 1(c)); provided, however, that, in the event that the timing of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date delivery of such CC Termination), and (ii) the Employee’s Average Annual BonusRelease could cause such amounts to be payable in one or another taxable year, subject to subsections (c) and (d).
(c) Any severance payment then such amounts shall not be payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after until the date first business day of the taxable year following Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this AgreementSeparation from Service.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 1 contract
Severance. A. If the Employer terminates the Executive’s employment under this Agreement for any reason other than for Cause pursuant to Section 6C, (including for clarity, as a result of the Employer electing not to renew this Agreement for an additional one-year term under Section 2), or if the Executive resigns and terminates this Agreement for Good Reason as provided in Section 8 (each a “Qualifying Termination”), the Employer shall pay to the Executive that portion of his Base Salary and Target Bonus which has been earned up to the date of such termination, in addition to Other Benefits through the date of such termination and the reimbursement of any expenses as provided in Section 5. For the purposes of clarity, the Executive shall have no right to the benefits provided under Section 9 in the event of termination under Sections 6.A. or 6.B. – neither of which constitute a Qualifying Termination under this Agreement.
B. In connection with a Qualifying Termination that occurs at any time other than in connection with or within the twelve (12) month period following the effective date of a Change in Control Event, and provided Executive timely signs and does not revoke as may be permitted by law a general release of claims in a form similar to that attached as Exhibit C (the “Release”) in accordance with the terms of Section 9.D. and remains in compliance with Section 12 below with respect to non-competition, the Employer shall, commencing on the first payroll date following sixty (60) days from the effective date of the Executive’s Qualifying Termination (i) pay to the Executive on a semi-monthly basis, a Severance equal to (a) the Base Salary for the term of the Non-Competition Period; and (b) the pro rata Target Bonus based on the term of the Non-Competition Period calculated in reference to the calendar year of the Executive’s Qualifying Termination (ii) the Board may, in its sole discretion, elect to accelerate the vesting of any outstanding, unvested stock options and other equity awards granted to Executive pursuant to Section 4.C. above; and (iii) subject to Executive’s timely election of continuation coverage under COBRA, the Employer shall reimburse the Executive the monthly premium payable to continue his and his eligible dependents’ participation in the Employer’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for the term of the Non-Competition Period, provided that the Executive is eligible and remains eligible for COBRA coverage; and provided, further, that in the event that the Executive obtains other employment that offers group health benefits, such continuation of coverage by the Employer shall immediately cease. If the Company terminates Employee’s employment reimbursement of any COBRA premiums 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 Company without Cause Health Care and Education Reconciliation Act of 2010 (collectively, the “Act”) or Section 105(h) of the Code, the Employer paid premiums shall be treated as taxable payments and be subject to imputed income tax treatment to the extent necessary to eliminate any discriminatory treatment or taxation under the Act or Section 105(h) of the Code. All reimbursements of COBRA premiums under this Section 9.B. will be paid automatically on a monthly basis in compliance with any applicable requirements of Section 409A of the Code.
C. In connection with a Qualifying Termination that occurs in connection with or within the twelve (12) month period following the effective date of a Change in Control Event, and provided Executive timely signs and does not revoke the Release in accordance with the terms of Section 6(c9.D., the Employer shall, commencing on the sixtieth (60th) prior to day following the expiration effective date of the Initial Term, the Company shall pay Employee a severance payment an amount equal to twelve months of EmployeeExecutive’s Base Salary as in effect on the date of termination, subject to subsections Qualifying Termination (ci) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in make a lump sum in cash payment to the Executive in an amount equal to two (2) times the sum of: (i) twelve months of Employee’s the Base Salary in effect on date and the Target Bonus relating to the calendar year 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 Executive’s Qualifying Termination), and ; (ii) fully vest all of the Employee’s Average Annual Bonus, subject stock options and other equity awards (if any) granted to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment Executive pursuant to Section 7(a4.C. above (with all performance vesting awards being deemed achieved at target); and (iii) subject to Executive’s timely election of continuation coverage under COBRA, reimburse the Executive the monthly premium payable to continue his and his eligible dependents’ participation in the Employer’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of eighteen (18) months, provided that the Executive is eligible and remains eligible for COBRA coverage; and provided, further, that in the event that the Executive obtains other employment that offers group health benefits, such continuation of coverage by the Employer shall immediately cease. If the reimbursement of any COBRA premiums 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 “Act”) or (b); provided that Employee executes and delivers Section 105(h) of the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar yearsCode, the Severance Payment Employer paid premiums shall be treated as taxable payments and be subject to imputed income tax treatment to the extent necessary to eliminate any discriminatory treatment or taxation under the Act or Section 105(h) of the Code. All reimbursements of COBRA premiums provided under this Section 9.C. will be made paid automatically on a monthly basis in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A compliance with any applicable requirements of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 1 contract
Sources: Executive Employment Agreement (Midwest Holding Inc.)
Severance. Upon termination of Executive's employment for any reason, Executive shall receive payment of (ai) If the Company terminates Employee’s employment with the Company without Cause Executive's Base Salary, as then in accordance with Section 6(c) prior to the expiration of the Initial Termeffect, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on through the date of termination, subject to subsections termination of employment (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination"TERMINATION DATE"), and (ii) all accrued vacation, expense reimbursements and any other benefits (other than severance benefits, except as provided below) due to Executive through the Employee’s Average Annual BonusTermination Date in accordance with established Company plans and policies or applicable law (the "ACCRUED OBLIGATIONS"). In addition, subject to subsections (c) and (d).the following shall apply:
(ca) Any severance payment payable TERMINATION BY COMPANY OTHER THAN FOR CAUSE, BY EXECUTIVE FOR GOOD REASON, DUE TO DEATH OR DISABILITY, OR UPON EXPIRATION. If Executive's employment with the Company is terminated by the Company for any reason other than Cause, by Executive for Good Reason, due to Employee pursuant to this Section 7 (a “Severance Payment”) Executive's death or disability, or if the Employment Term is not renewed for reasons other than those that would otherwise constitute for Cause or Good Reason, then Executive will be made entitled to: (i) a lump-sum amount equal to Executive's Base Salary, as then in effect, for a lump sum within sixty period of twelve (6012) days after months following the date Employee’s employment is terminated giving rise Termination Date (the "SEVERANCE PERIOD"), payable in four (4) equal installments, the first installment to such Severance Payment pursuant be paid immediately upon the Termination Date, and the second, third and fourth installments to Section 7(a) or be paid at the end of each successive ninety (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (6090) day period spans two calendar yearsfollowing the Termination Date; (ii) a lump-sum amount equal to the Annual Bonus to which Executive would be entitled for the then-current Fiscal Year (determined in accordance with the methodology set forth in Section 3(b) of the Agreement and utilizing, for purposes of the component described in Section 3(b)(i) of the Agreement, an Operating Income amount derived by annualizing the financial results for the then-current Fiscal Year up to the Termination Date), payable in four (4) equal installments, the Severance Payment will first installment to be made in paid immediately upon the second calendar year. HoweverTermination Date, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject second, third and fourth installments to Section 409A be paid at the end of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six each successive ninety (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (4590) day period plus following the seven Termination Date; (7iii) day revocation period spans two calendar yearscontinued payment by the Company of the group medical, dental and vision continuation coverage premiums for Executive and Executive's eligible dependents under Title X of the Consolidated Budget Reconciliation Act of 1985, as amended ("COBRA") under the Company's group health plans, as then in effect, until the earlier of (A) the date Executive first becomes eligible for coverage under a subsequent employer's group health plan, (B) the date such coverage terminates under applicable law or (C) twelve (12) months after the Termination Date (subsections (i)-(iii) of this paragraph collectively, "SEVERANCE"); (iv) immediate full vesting on the Termination Date in that portion of Executive's stock options, restricted stock and other similar rights that would have vested during the Severance Payment will be paid in Period; and (v) the second calendar year. Employee’s right to exercise the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any vested portion of Executive's outstanding options until the Severance Payment that has been paid to him pursuant to Section 7earlier of (A) one (1) year from the Termination Date, or (B) the end of the term of any applicable option.
Appears in 1 contract
Sources: Employment Agreement (Insci Corp)
Severance. (a) If In connection with the Company terminates termination of Employee’s employment with upon the Company without Cause in accordance with Section 6(c) prior to the expiration of the Initial TermTermination Date or, the Company shall pay Employee if earlier, as a severance payment an amount equal to twelve months result of Employee’s Base Salary Involuntary Termination (as defined in effect on the date of terminationEmployment Agreement), and subject to subsections Employee’s continued compliance with Section 3 and Employee’s execution and non-revocation of the Release (c) and (das defined below).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will shall be entitled to a receive, in lieu of any severance payment (in addition benefits to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participantmay otherwise be entitled under any plan or program of the Company or any agreement providing for severance or termination payments or benefits (including the Employment Agreement), but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: benefits provided below:
(i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any A cash severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will in the amount of $167,375, which shall be made paid in a lump sum within sixty five (605) days after following the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release Release becomes effective and irrevocable. If such sixty ;
(60ii) day period spans two calendar years, the Severance Payment will be made A cash severance payment in the second calendar year. Howeveramount of $264,875, if Employee is which shall be paid in a “specified employee” lump sum on the earlier of (A) the date on which a Change in Control (as defined in regulations the Employment Agreement) occurs, (B) the filing of any Petition For Relief in a Bankruptcy Court or Under the Bankruptcy Laws, including any Petition or request seeking a reorganization and/or liquidation under the Bankruptcy laws, or the filing of any Petition seeking relief from creditors, or (C) December 31, 2017;
(iii) Full acceleration of the vesting of all equity awards held by Employee on the Termination Date, including any options, restricted stock, restricted stock units or other awards and such Employee shall have the ability to exercise her stock options until December 31, 2016; and (iv) Reimbursement for the cost of continuation of health insurance benefits provided to Employee immediately prior to the Termination Date pursuant to the terms of COBRA or other applicable law through the earliest to occur of (A) six (6) months following the Involuntary Termination, (B) the date Employee becomes eligible for coverage under health and/or dental plans of another employer, or (C) the date upon which Employee is no longer eligible for such COBRA or other benefits under applicable law (the “COBRA Coverage Period”). If any of the Company’s health benefits are self-funded as of the Termination Date, or if the Company cannot provide the foregoing benefits in a manner that is exempt from Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” or that is subject to otherwise compliant with applicable law (including, without limitation, Section 409A 2716 of the CodePublic Health Service Act), instead of providing the reimbursements as set forth in the immediately preceding sentence, the Severance Payment will be made on Company shall instead pay to Employee the Company’s first payroll foregoing monthly amount as a taxable monthly payment date that is more than six for the COBRA Coverage Period (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) or any remaining portion thereof). Employee acknowledges that the foregoing cash payments and agrees benefits will represent full satisfaction of the Severance Payment amounts payable to which her under the Employment Agreement and any other plan, program, policy or agreement providing for severance or termination payments or benefits. In the event of Employee’s termination of employment prior to May 31, 2016 for any reason other than an Involuntary Termination, Employee is shall not be entitled under to receive any of the benefits described in this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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 release2(d). If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment The benefits set forth hereinabove will be paid in the second calendar year. regardless of how any press release or public document or filing characterizes Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7termination or separation from employment.
Appears in 1 contract
Sources: Employment Transition Agreement (Apricus Biosciences, Inc.)
Severance. (a) If the Company terminates Employeethe Executive’s employment at any time without Cause, or the Executive terminates employment with the Company without Cause in accordance with Section 6(c) prior to the expiration of the Initial Termfor Good Reason, the Company Executive shall pay Employee a severance payment receive (i) an amount equal to twelve months of Employeethe Executive’s then current Base Salary as for twelve (12) months (the “Severance Period”), less all applicable Withholding, paid in effect accordance with the Company’s standard payroll practices (subject to the provisions of this Section 4(k)); (ii) if elected by the Executive in accordance with the election procedures in place at the time of termination, the Company shall, during the Severance Period, reimburse the Executive for continuation premiums under COBRA (or similar applicable law) for the Executive and the Executive’s covered qualified dependents; and (iii) if the effective date for such termination of employment is on or after July 1st during any calendar year, a cash payment equal to (A) the cash bonus paid to Executive pursuant to Section 3(b) for the calendar year prior to the date of termination, subject to subsections multiplied by (cB) a fraction, the numerator of which is the number of days during such calendar year that the Executive was employed by the Company, and the denominator of which is three hundred and sixty-five (d365) ((i).
, (b) If during ii)and (iii), together, the Term “Severance Benefits”). No payments of this Agreement there is a CC Termination, then the Employee Severance Benefits will be entitled to a severance payment (in addition to any other rights and other amounts payable made prior to the Employee under Company plans sixtieth (60th) day following the Executive’s Separation from Service (as defined in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable ). Subject to Section 7(b), on the 60th day following the Executive’s Separation from Service, the Company will pay the Executive in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect payments that the Executive would have received on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise or prior to such Severance Payment pursuant to Section 7(a) or date under the original schedule but for the delay while waiting for the sixtieth (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (6060th) 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 compliance with Section 409A and the effectiveness of the Code and Release, with the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A balance of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto payments being paid as Exhibit 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 releaseoriginally scheduled. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 1 contract
Sources: Employment Agreement (Wayside Technology Group, Inc.)
Severance. (a) If the Company terminates Employee’s employment with Term is terminated by the Company without Cause for Cause, the Company will pay to the Executive an aggregate amount equal to the Executive's accrued and unpaid base salary through the date of such termination, additional salary payments in lieu of the Executive's accrued and unused vacation time, unreimbursed business expenses, unreimbursed medical, dental and other employee benefit expenses in accordance with Section 6(c) prior the applicable plans, and any and all other benefits provided under the terms of applicable employee plans to terminated employees (the expiration of the Initial Term, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d"Standard Termination Payments").
(b) If during the Term of this Agreement there is a CC Terminationterminated upon the Executive's death or Disability, then the Employee Company and the Subsidiary will be entitled to a severance payment (in addition to any other rights and other amounts payable pay to the Employee under Company plans in which Employee is a participantExecutive's estate or the Executive, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to as the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greatercase may be, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), Standard Termination Payments and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d)all death or disability payments or other employee benefits under their employee benefit plans.
(c) Any severance payment payable Subject to Employee pursuant to Section 6(d), if the Company terminates the Executive's employment under this Section 7 Agreement without Cause other than by reason of his death or Disability or if the Executive terminates his employment hereunder for Good Reason, the Company shall (a “Severance Payment”i) will be made in pay the Executive the Standard Termination Payments, (ii) pay the Executive a lump sum within sixty payment equal to the twice the Executive's total compensation for the previous fiscal year (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(dbut not less than twice $96,000) and such release becomes effective (iii) continue in effect the Executive's benefits with respect to life, health and irrevocable. If such sixty (60) day period spans insurance plans or their equivalent for two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges If, following a Change in Control: the Executive terminates his employment hereunder within 6 months following such Change in Control; the Company shall (i) pay the Executive the Standard Termination Payments, (ii) pay the Executive a lump sum payment equal to three times the Executive's total cash compensation for the previous fiscal year (but in no event less than three times $96,000) and agrees (iii) continue in effect the Severance Payment Executive's benefits with respect to which life, health and insurance plans or their equivalent for three years.
(e) If the Employee initial Term is entitled not extended pursuant to the proviso to Section 1 as a result of the Company giving notice thereunder that it elects to permit the term of this Agreement to expire without extension, the Company shall (i) pay the Executive the Standard Termination Payments, (ii) pay the Executive a lump sum payment equal to twice the Executive's total compensation for the previous fiscal year (but not less than twice $96,000) and (iii) continue in effect the Executive's benefits with respect to life, health and insurance plans or their equivalent for two years.
(f) If the Company terminates the Executive's employment under this Agreement without Cause other than by reason of his death or Disability, or if the initial Term is not extended as a result of the Company giving notice that it elects to permit the term of this Agreement to expire without extensions, or it the Executive terminates his employment hereunder pursuant to Section 7 is conditioned upon and subject 5(c): all stock options granted to the Employee’s executing Executive shall immediately vest and delivering be exercisable and any stock grant to the general release of claims in Executive shall immediately vest and all Company imposed restrictions on restricted stock issued to the form attached hereto as Exhibit B by the 45th day following the Employee’s separation from service and not revoking the release within the seven Executive shall be terminated.
(7g) days after executing and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar yearsAs used herein, the Severance Payment will be paid in term "Cause" means: (i) the second calendar year. Employee’s right Executive's willful and intentional failure or refusal to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches perform or observe any of his material duties, responsibilities or obligations set forth in Sections 8-11 of this Agreement, he will immediately return if such breach is not cured within 30 days after notice thereof to the Company Executive by the Company, which notice shall state that such conduct shall, without cure, constitute Cause and makes specific reference to this Section 6(g); (ii) any portion willful and intentional act of the Severance Payment that has been paid to him pursuant to Section 7Executive involving fraud, theft, embezzlement or dishonesty affecting the Company; or (iii) the Executive's conviction of (or a plea of nolo contendere to) an offense which is a felony in the jurisdiction involved.
Appears in 1 contract
Sources: Executive Employment Agreement (Cavanaughs Hospitality Corp)
Severance. In addition to the Accrued Obligations, provided the Executive remains employed by the Company as of February 1, 2018, and provided the Executive has agreed in writing by such date to become the Company’s Chief Executive Officer (arather than Acting Chief Executive Officer), the Executive shall be eligible to receive, if his Date of Termination occurs on or after February 1, 2018, the following severance benefits pursuant to the terms and conditions detailed below:
(i) If the Company terminates EmployeeExecutive’s employment with is terminated without Cause by the Company without Cause under Section 3(c) or by the Executive for Good Reason under Section 3(d) in accordance with the absence of a “Change in Control” (as defined in the Company’s 2015 Equity Incentive Plan but provided that such event constitutes a “change in control event” within the meaning of Treasury Regulation Section 6(c) prior to the expiration of the Initial Term1.409A-3(i)(5)(i)), the Company shall (A) continue to pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary the Executive his base salary as in effect on the date Date of terminationTermination (excluding any reduction that gave rise to an event of Good Reason), subject paid in accordance with the Company’s usual payroll practices, for a period of 18 months following the Date of Termination, (B) accelerate the vesting of the unvested portion of any equity awards held by the Executive to subsections (c) the extent of 12 additional months upon the Date of Termination and (d).
(bC) If during if the Term Executive is participating in the Company’s employee group health insurance plans on the Date of this Agreement there is a CC Termination, then continue such benefits (i.e., pay the Employee will be entitled to COBRA premiums ) for a severance payment (in addition to any other rights and other amounts payable to period of 18months following the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months Date of Employee’s Base Salary in effect on date of such CC Termination (or, if greaterearlier, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (duntil he is eligible for coverage with a subsequent employer).
(cii) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after If the date EmployeeExecutive’s employment is terminated giving without Cause by the Company under Section 3(c) or by the Executive for Good Reason under Section 3(d) within the twelve month period following a Change in Control (as defined above) , the Company shall (A) pay the Executive an amount equal to 2.0 times his base salary as in effect on the Date of Termination (excluding any reduction that gave rise to such Severance Payment pursuant to Section 7(aan event of Good Reason) or plus 100% of his target annual bonus, which amount shall be paid in a lump sum, (b); provided that Employee executes and delivers B) accelerate in full the release contemplated vesting on all outstanding, unvested equity awards held by Section 7(dthe Executive, (C) 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 pro rata portion of the Code and annual bonus for the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A year in which the Date of Termination occurs based on a good faith determination by the Company of the Code, attainment of the Severance Payment will be made on applicable goals and (D) if the Executive is participating in the Company’s first payroll payment date that employee group health insurance plans on the Date of Termination, continue such benefits for a period of 18 months following the Date of Termination (or, if earlier, until he is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreementeligible for coverage with a subsequent employer).
(diii) Employee acknowledges and agrees The payment to the Severance Payment to which Executive of the Employee is entitled amounts payable under this Section 7 is conditioned 4(b) shall (A) be contingent upon the Executive entering into a severance and subject to the Employee’s executing and delivering the general release of claims agreement in the a form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return reasonably acceptable to the Company any portion and (B) constitute the sole remedy of the Severance Payment that has been paid to him pursuant to Executive in the event of a termination of the Executive’s employment in the circumstances set forth in this Section 74(b).
Appears in 1 contract
Sources: Employment Agreement (Invivo Therapeutics Holdings Corp.)
Severance. You shall be eligible for the severance benefits described in this Section 8.
a. In the event (ai) If the Company terminates Employee’s your employment with the Company without Cause (as defined below and other than due to your death or disability), or (ii) you terminate your employment for Good Reason (as defined below), and provided in accordance with either case of (i) or (ii) such termination or resignation constitutes a “separation from service” (as defined under Treasury Regulation Section 6(c1.409A-1(h), without regard to any alternative definition thereunder, a “Separation from Service”) prior (such termination or resignation, an “Involuntary Termination”), then, in addition to the expiration of the Initial TermAccrued Obligations, the Company subject to your obligations below, you shall pay Employee a severance payment be entitled to receive an amount equal to twelve (12) months of Employee’s Base Salary as your then current base salary (ignoring any decrease in effect base salary that forms the basis for Good Reason), less all applicable withholdings and deductions, paid on the date of termination, subject to subsections schedule described below (c) and (dthe “Severance Pay”).
(b) If during the Term of this Agreement there b. The Severance Pay is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: conditional upon (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination your continuing to comply with your obligations under your PIIA (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Terminationas defined below), ; and (ii) your delivering to the Employee’s Average Annual BonusCompany an executed separation agreement and general release of claims in favor of the Company, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum form attached hereto as EXHIBIT A, within the time period set forth therein, which becomes effective in accordance with its terms, which shall be no later than sixty (60) days after following your Separation from Service (the date Employee’s employment is terminated giving rise to such “Release”). The Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment Pay will be made paid in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made equal installments on the Company’s first regular payroll payment schedule over the period outlined above following the date of your Separation from Service; provided, however, that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject no payments will be made prior to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit B by the 45th sixtieth (60th) day following your Separation from Service. On the Employee’s separation from service and not revoking the release within the seven sixtieth (7) days after executing and delivering the release. If such forty-five (4560th) day period plus the seven (7) day revocation period spans two calendar yearsfollowing your Separation from Service, the Severance Payment Company will be paid pay you in a lump sum the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion amount of the Severance Payment Pay that has been you would have received on or prior to such date under the original schedule but for the delay while waiting for the sixtieth (60th) day, with the balance of the Severance Pay being paid to him pursuant to Section 7as originally scheduled.
Appears in 1 contract
Severance. (a) If the Company terminates EmployeeExecutive has a Separation from Service as a result of Executive’s employment with discharge by the Company without Cause or by reason of Executive’s resignation for Good Reason, Executive shall be entitled to receive, in lieu of any severance benefits to which Executive may otherwise be entitled under any severance plan or program of the Company, the benefits provided below, which, with respect to clause (ii) and clause (vii)(B), will be payable in a lump sum on the day that is sixty (60) days following the date of Executive’s Separation from Service:
(i) The Company shall pay to Executive his or her fully earned but unpaid Base Salary, when due, through the date of Executive’s Separation from Service at the rate then in effect, reimbursement of business expenses incurred prior to the date of Executive’s Separation from Service and properly submitted in accordance with Section 6(c) prior Company policy, plus all other benefits, if any, under any Company group retirement plan, nonqualified deferred compensation plan, equity award plan or agreement, health benefits plan or other Company group benefit plan to which Executive may be entitled pursuant to the expiration terms of such plans or agreements at the Initial Termtime of Executive’s Separation from Service, plus all amounts required to be paid to Executive under applicable law (the Company “Accrued Obligations”);
(ii) Subject to Section 5(c) and Executive’s continued compliance with Section 6, Executive shall be entitled to receive severance pay Employee a severance payment in an amount equal to twelve months two-hundred percent (200%) multiplied by the sum of Employee(x) Executive’s annual Base Salary as in effect immediately prior to the date of Executive’s Separation from Service (ignoring any reduction in Base Salary in the event a reduction in Base Salary triggered Executive’s resignation for Good Reason), plus (y) Executive’s target annual bonus for the calendar year in which Executive’s Separation from Service occurs (provided that, in the event Executive’s Separation from Service occurs more than sixty (60) days prior to a Change in Control or more than eighteen (18) months following a Change in Control, such bonus shall be prorated for the portion of the calendar year that has elapsed prior to the date of Executive’s Separation from Service);
(iii) Subject to Section 5(c) and Executive’s continued compliance with Section 6, for the period beginning on the date of terminationExecutive’s Separation from Service and ending on the date which is twenty-four (24) full months following the date of Executive’s Separation from Service (or, subject if earlier, the date on which the applicable continuation period under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) expires) (the “COBRA Coverage Period”), the Company shall continue to subsections provide Executive and his or her eligible dependents who were covered under the Company’s health insurance plans as of the date of Executive’s Separation from Service with health (cincluding medical and dental) insurance benefits substantially similar to those provided to Executive and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable his or her dependents immediately prior to the Employee under date of such Separation from Service. If any of the Company’s health benefits are self-funded as of the date of Executive’s Separation from Service, or if the Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable cannot provide the foregoing benefits in a lump sum manner that is exempt from or otherwise compliant with applicable law or the provision of such benefits may result in cash in the Company incurring penalties under applicable law (including, without limitation, Section 409A of the Code and Section 2716 of the Public Health Service Act), instead of providing continued health insurance benefits as set forth above, the Company shall instead pay to Executive an amount equal to the sum of: (i) twelve months monthly premium payment for Executive and his or her eligible dependents who were covered under the Company’s health plans as of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of Executive’s Separation from Service (calculated by reference to the premium as of the date of Separation from Service) as currently taxable compensation, in substantially equal monthly installments over the COBRA Coverage Period (or the remaining portion thereof);
(iv) Subject to Section 5(c) and Executive’s continued compliance with Section 6, the vesting and/or exercisability of each of Executive’s outstanding Stock Awards shall be accelerated as to the number of covered shares that would vest over the twelve (12) month period following the date of Executive’s Separation from Service had Executive remained continuously employed by the Company during such CC Termination)period, and vesting of all Stock Awards with performance-based vesting scheduled to be measured with respect to the fiscal year in which the Separation of Service occurs shall vest based on performance being deemed satisfied at target, with such acceleration to be effective as of the date of Executive’s Separation from Service (ii) provided that payment or settlement of such Stock Awards may be delayed as provided in the Employeegrant documents to the extent required by Section 409A of the Code); provided, however, that in the event Executive’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum Separation from Service occurs within sixty (60) days after prior to a Change in Control or within eighteen (18) months following a Change in Control, the vesting and/or exercisability of each of Executive’s outstanding Stock Awards shall be accelerated, and vesting of all Stock Awards with performance-based vesting shall vest based on performance being deemed satisfied at target, with such acceleration to be effective as of the later of (A) the date Employeeof Executive’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) Separation from Service or (b); B) the date of the Change in Control (provided that Employee executes and delivers the release contemplated by Section 7(d) and payment or settlement of such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will Stock Awards may be made delayed as provided in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of grant documents to the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to extent required by Section 409A of the Code, the Severance Payment will ). Nothing in this Section 5(a)(iv) shall be made on construed to limit any more favorable vesting applicable to Executive’s Stock Awards in the Company’s first payroll payment date that is more than six (6equity plan(s) months and/or the Severance Payment is otherwise payable pursuant stock award agreements under which the Stock Awards were granted. The foregoing provisions are hereby deemed to this Agreement.be a part of each Stock Award and to supersede any less favorable provision in any agreement or plan regarding such Stock Award;
(dv) Employee acknowledges Subject to Section 5(c) and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon EmployeeExecutive’s continued compliance with Sections 8Section 6, a post-11 termination exercise period for outstanding stock options covering shares of this Agreement. If Employee breaches any Company common stock of his obligations twelve (12) months; provided, however, that in Sections 8-11 no event may an option be exercised after the expiration of this Agreementits maximum stated term;
(vi) Subject to Section 5(c) and Executive’s continued compliance with Section 6, he will immediately return to the extent there remains any unpaid amount under the 2016 Executive Retention Bonus Plan as reflected by the Letter Agreement issued to Executive thereunder (the “Retention Plan”), any unpaid portion of Executive’s full Bonus Amount (as defined in the Retention Plan) paid less applicable withholdings on the first regularly scheduled payroll date that occurs on or after June 1, 2018 (and in any event, no later than June 30, 2018);
(vii) Subject to Section 5(c) and Executive’s continued compliance with Section 6, if Executive’s Separation from Service as a result of Executive’s discharge by the Company any portion without Cause or by reason of Executive’s resignation for Good Reason occurs prior to June 1, 2017, or if Executive resigns for Good Reason as a result of the Company’s violation of clause (v) of the definition of Good Reason, then, in addition to the amounts and benefits set forth in clauses (i) through (vi) above, Executive shall be entitled to receive (A) additional severance pay in the amount, if any, by which (1) the amounts that would have been payable to Executive pursuant to Sections 3(c)(ii)(II) and 3(c)(vi) of the Severance Payment that has been paid Agreement (as defined below) as of the date of Executive’s Separation from Service if such Severance Agreement had remained in effect through such date and such amounts were payable to him Executive exceed (2) the amounts payable to Executive pursuant to Section 75(a)(vi) above, which excess (if any) shall be payable in a lump sum on the day that is sixty (60) days following the date of Executive’s Separation from Service; (B) if the RSUs described in Section 4(b) have not been granted to Executive prior to the date of Executive’s Separation from Service, additional severance pay in the amount of $3,625,000, payable in a lump sum on the day that is sixty (60) days following the date of Executive’s Separation from Service; (C) the full acceleration of vesting of Executive’s outstanding stock options and stock appreciation rights that were outstanding as of December 1, 2016 and an extension of the exercise period of Executive’s stock options and stock appreciation rights until the earlier of (1) five (5) years from the date of Executive’s Separation from Service, or (2) the remaining life of the equity grants; and (D) eighteen (18) months outplacement services provided by an outplacement vendor selected by the Company.
Appears in 1 contract
Sources: Employment Agreement (Xperi Inc.)
Severance. (a) If the Company terminates Employee’s Upon termination of your employment with the Company without Cause in accordance with Section 6(c) prior hereunder pursuant to the expiration this letter agreement, all obligations of the Initial Term, the Company shall cease, except the Company’s obligations to (i) pay Employee a the compensation set forth in Section 2 hereof through the date of such termination, (ii) provide the benefits set forth in Section 4 hereof through the date of such termination and to comply with all state and federal laws and regulations applying to such benefits and (iii) pay the severance payment benefits, if applicable, to you pursuant to the terms and conditions set forth in Section 5(b) below.
(b) In connection with your separation from the Company, you shall be entitled to (i) an amount equal to twelve months (12) months’ severance pay at the monthly rate of Employee’s your current Base Salary as of $280,000, payable in effect on twelve (12) equal monthly installments commencing with the first month after your date of termination, subject (ii) continued medical coverage through COBRA for you and your family for twelve (12) months following your date of termination on the same terms and conditions (including cost sharing) made available to subsections senior executives of the Company; PROVIDED THAT such coverage shall terminate if you become eligible for employer-provided medical coverage during such twelve (c12) and month period, (d).
(biii) If during the Term immediate vesting of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to 50% of the sum of: Applicable Percentage (as defined below) of your outstanding unvested options, stock appreciation rights, restricted stock, deferred stock or other similar equity awards granted by the Company, with all outstanding options and stock appreciation rights being exercisable under the earlier of the expiration of the original term of such awards or for three (3) months following your date of termination, (iv) a pro rata bonus (the “Pro Rata Bonus”) equal to $21,587 (v) an aggregate amount (the “Termination Bonus”) equal to $154,000. “Applicable Percentage” means 55%. The Pro Rata Bonus shall be paid at such time as bonuses are paid to other senior executives (scheduled for February 2010) and the Termination Bonus shall be paid in 12 equal monthly installments in accordance with the provisions of clause (i), above.
(c) Notwithstanding anything to the contrary contained herein, you shall be entitled to the benefits described in Section 5(b) if and only if (i) twelve months you have executed and delivered to the Company within 30 days of Employee’s Base Salary in effect on date your separation a mutual general release of such CC Termination (orall claims against you, if greater, the highest Base Salary in effect during the three year period ending on the date one hand, and the Company and its directors, officers and affiliates, on the other hand, which general release shall be in the form of EXHIBIT B attached hereto (with such CC Terminationmodifications as may be necessary to comply with then-existing legal requirements), and (ii) subsequent to your separation, you shall not have (A) revoked or breach the Employee’s Average Annual Bonusprovisions of such general release or breached or otherwise failed to comply with the provisions of Sections 7, subject 8 or 9 of this letter agreement, or (B) applied for unemployment compensation chargeable to subsections (c) and (d)the company during such severance period.
(cd) Any severance Notwithstanding anything herein to the contrary, if, at the time any payment is payable to Employee you pursuant to the provisions of this letter agreement as a result of your “separation from service” (within the meaning of Section 7 409A of the Internal Revenue Code of 1986, as amended (a the “Severance PaymentCode”) will be made in a lump sum within sixty (60) days after and the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (bregulations promulgated thereunder); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made Company or any company in the second calendar year. Howeveraffiliated group in which the Company’s financial statements are consolidated in accordance with generally accepted accounting principles has a class of equity securities traded on an established domestic or foreign securities market or otherwise including, if Employee is without limitation, trading on an American exchange only as American Depositary receipts and you are then designated a “specified employeeperson” (as such term is defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject regulations promulgated thereunder) on a list prepared by the Company periodically pursuant to Section 409A of the CodeCode and the regulations promulgated thereunder, then, to the Severance Payment will be made on extent required by Section 409A of the Company’s first payroll payment Code and the regulations promulgated thereunder, during the six month period from and after the date that is more than six (6) months of your “separation from service” the Severance Payment is otherwise amount payable to you pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this provisions of Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 5 of this Agreement. If Employee breaches any letter agreement shall not exceed the lesser of his obligations in Sections 8-11 of this Agreement, he will immediately return to (x) two times your annual base compensation or (y) two times the Company any portion of the Severance Payment that has been paid to him amount determined pursuant to Section 7401(a)(17) of the Code, and any excess amount which accrues to you during such period shall be withheld during such period and paid to you in a lump sum upon the expiration of six months after the date of “separation from service” (or, if earlier than the end of such six month period, upon your death).
Appears in 1 contract
Sources: Separation Agreement (optionsXpress Holdings, Inc.)
Severance. (a) If the Company terminates Employee’s ▇▇▇▇▇▇▇▇'▇ employment with the Company without other than for Cause pursuant to Section 1.3(d), and other than by reason of death or Disability pursuant to Section 3.8, or if ▇▇▇▇▇▇▇▇ resigns within ten (10) days following a material diminution in accordance with Section 6(chis title within six (6) prior months following a Change of Control, then subject to the expiration ▇▇▇▇▇▇▇▇'▇ continuing obligations under Sections 2.4 and 2.5 and in consideration of the Initial Termexecution, delivery and effectiveness of a general release of claims in a standard form approved by the Company, the Company shall pay Employee to ▇▇▇▇▇▇▇▇ a severance payment an amount equal to twelve months lump sum of Employee’s two (2) times ▇▇▇▇▇▇▇▇'▇ current Base Salary as in effect on cash within fifteen (15) days after the date of terminationtermination (or, subject to subsections (cif later, upon the effectiveness of the general release following any applicable revocation period) and (d)shall vest 100% of ▇▇▇▇▇▇▇▇'▇ then remaining unvested options granted in accordance with this Agreement, in addition to other amounts payable from qualified plans, nonqualified retirement plans, and deferred compensation plans, which amounts shall be paid in accordance with the terms of such plans.
(b) If during ▇▇▇▇▇▇▇▇ resigns within ten (10) days following a material diminution in his title by the Term Board of this Agreement there is Directors of the Company, other than in connection with a CC Terminationtermination of his employment for Cause or as a result of death or Disability pursuant to Section 3.8, then subject to ▇▇▇▇▇▇▇▇'▇ continuing obligations under Sections 2.4 and 2.5 and in consideration of the Employee will be entitled execution, delivery and effectiveness of a general release of claims in a standard form approved by the Company, the Company shall vest 50% of ▇▇▇▇▇▇▇▇'▇ then remaining unvested options granted in accordance with this Agreement, and ▇▇▇▇▇▇▇▇'▇ entitlement to a severance payment (in addition to any other rights and other amounts payable to from qualified plans, nonqualified retirement plans, and deferred compensation plans shall be determined in accordance with the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date terms of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d)plans.
(c) Any severance payment payable to Employee pursuant to this Section 7 If the Company terminates ▇▇▇▇▇▇▇▇'▇ employment for Cause, or if ▇▇▇▇▇▇▇▇ resigns (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 other than pursuant to Section 7(a3.9(b) or (babove); provided that Employee executes , then ▇▇▇▇▇▇▇▇ shall only be entitled to be paid his accrued, unpaid Base Salary through the effective date of his termination of employment and delivers his entitlement to other amounts payable from qualified plans, nonqualified retirement plans, and deferred compensation plans shall be determined in accordance with the release contemplated by Section 7(d) and terms of such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreementplans.
(d) Employee acknowledges and agrees the Severance Payment No severance benefits shall be provided pursuant to which the Employee Sections 3.9(a) or (b) if ▇▇▇▇▇▇▇▇'▇ employment is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release terminated by reason of claims in the form attached hereto as Exhibit 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. If such fortyexpiration or non-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 renewal of this Agreement. If Employee breaches Agreement for any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7reason.
Appears in 1 contract
Severance. In exchange for the general release of all claims pursuant to Section 6 and the Release (as defined below), the provisions of Section 3 hereof, and the other promises, covenants and agreements by Executive set forth herein, subject to Executive’s execution and delivery of the Release as provided in Section 6 below (a) If during the Company terminates Employee24-month period commencing on the Termination Date (the “Severance Period”), Employer shall pay Executive severance at a rate equal to $280,000 per annum (subject to withholdings for taxes) (“Base Severance”), payable in equal installments on the Company’s regular salary payment dates, (b) notwithstanding that Executive will resign her employment effective on the Termination Date, Executive shall be entitled to receive any bonus for the fiscal year ending on the Termination Date to which she would otherwise be entitled pursuant to the terms and conditions of The Mentor Executive Leadership Incentive Plan (as amended, the “Bonus Plan”), any such bonus to be paid at the time(s) provided in the Bonus Plan or, if such time(s) are not set forth in the Bonus Plan, at the time(s) that other officers of Employer are paid bonuses for fiscal year 2005 under the Bonus Plan, and (c) on or about the date of the Closing (as defined in the Repurchase Agreement), Employer shall pay to Executive in cash a special bonus in the amount of $56,944.26 (subject to withholdings for taxes) (clauses (a) through (c), collectively, the “Severance Payments and Benefits”). During the 25-month period commencing on the Termination Date (the “Benefits Continuation Period”), at Executive’s option, Executive shall continue to participate in Employer’s group health and dental benefit plan(s) (excluding, for the avoidance of doubt, any bonus or incentive compensation plans) on substantially the same terms and conditions as apply from time to time to Employer’s then employed senior executives; provided that Executive shall pay all costs for coverage under such plans (including, without limitation, Executive’s costs and Employer’s and its affiliates’ costs under such plans), which costs shall be substantially the same as the applicable premium rates that would be paid by an employee receiving such benefit plan coverage following a termination of employment pursuant to COBRA (as defined below); provided further that Employer shall be entitled to withhold any amounts owed by Executive pursuant to this sentence from any amounts otherwise owed to Executive pursuant to this Agreement. In addition to the foregoing, Employer may, at its option and in its sole discretion and subject to the approval of the Company’s board of directors, award an additional cash bonus to Executive, any such additional bonus to be paid on or about December 20, 2005. Following the Benefits Continuation Period, to the extent permitted by the continuation coverage provisions of Section 4980B of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), Executive shall be offered the opportunity to elect continuation coverage under Employer’s group medical and dental benefit plan(s) (“COBRA coverage”). Employer shall provide Executive with the Company without Cause appropriate COBRA coverage notice and election form, if any, for this purpose. If Executive is permitted to and elects COBRA coverage, Executive shall pay 100% of Executive’s (and her dependents’) health and dental insurance premiums under COBRA, for up to 18 months following the end of the Benefits Continuation Period; provided that Executive shall notify Employer immediately of any change in her circumstances that would warrant discontinuation of her COBRA coverage and benefits (including but not limited to Executive’s receipt of group medical, dental or vision benefits from any other employer). The existence and duration of Executive’s COBRA rights and/or the COBRA rights of any of Executive’s eligible dependents shall be determined in accordance with Section 6(c4980B of the Code. Except as set forth in this Section 2, Executive agrees that she is not entitled to any other salary, bonus, severance, reimbursement, benefit or expectation of remuneration or other monies from the Company or Employer or any of their respective subsidiaries or Affiliates (as defined in the Release) prior except as required by law and except for the distribution of amounts to Executive pursuant to the expiration terms of (i) the Executive Plan in the aggregate amount of $120,307.18 (the “Executive Plan Balance Amount”), (ii) the Deferral Plan in the aggregate amount of $19,282.11 (the “Deferral Plan Balance Amount”) and (iii) amounts payable pursuant to the Repurchase Agreement; provided that, for the avoidance of doubt, Executive may continue as a participant in the 401 (k) Plan to the extent permitted under the terms thereof. For purposes of the Initial TermStock Option Agreement, the payments set forth in this Section 2 shall constitute severance payments and the Noncompetition Period (as defined therein) shall continue until the end of the Severance Period. Within 15 days following the Termination Date, pursuant to the terms and conditions of the Executive Plan, Executive shall be distributed her full balance under the Executive Plan in a lump-sum payment (subject to withholdings for taxes) in an aggregate amount equal to the Executive Plan Balance Amount. Within 15 days following the Termination Date, pursuant to the terms and conditions of the Deferral Plan, Executive shall be distributed her full balance under the Deferral Plan in a lump-sum payment (subject to withholdings for taxes) in an aggregate amount equal to the Deferral Plan Balance Amount. In the event of a material breach by Executive of this Agreement, the Release, the Repurchase Agreement or the provisions of the other agreements that survive pursuant to Section 3 below, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of terminationshall, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable or remedies available at law or in equity or under the Release, be entitled to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee cease making payments pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement2.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 1 contract
Sources: Separation Agreement (Rem Consulting of Ohio, Inc.)
Severance. (a) If the Company terminates Employee’s employment with the Company without Cause shall terminate on August 4, 2023 (such date, or earlier date if Employee’s employment is terminated as specified in accordance with the first sentence of Section 6(c5(d) prior to the expiration of the Initial TermEmployment Agreement or pursuant to Section 2(c) hereof, the “Separation Date”). Employee agrees to promptly execute such additional documentation as requested by the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on effectuate the date of termination, subject to subsections (c) and (d)foregoing.
(b) If during Regardless whether the Term of this Agreement there Release Condition (as defined below) is a CC Terminationsatisfied, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary all earned, but unpaid, wages and accrued, but unused, vacation time earned in effect on date of such CC Termination (or, if greater, accordance with applicable law and Company policy through the highest Base Salary in effect during the three year period ending on the date of such CC Termination), Separation Date; and (ii) any unpaid expenses or other reimbursements, due to Employee under the EmployeeCompany’s Average Annual Bonuspolicies, subject to subsections provided that Employee must submit for reimbursement any outstanding business-related expenses within 120 days following the Separation Date (c) and (dthe “Accrued Entitlements”).
(c) Any severance payment payable Upon a termination of Employee’s employment during the Transition Period (x) pursuant to the first sentence of Section of 5(d) of the Employment Agreement, (y) due to Employee’s resignation for any reason during the Transition Period or (z) due to expiration of the Transition Period, then subject to the Release Condition (as defined below), and Employee’s continued compliance with all of her obligations set forth in this Agreement, the Company shall provide to Employee pursuant to this the following payments and benefits, less all applicable withholdings and authorized or required deductions:
(i) severance pay, at the same rate as Employee’s base salary, for a period of 12 months following the Separation Date,
(ii) a pro-rata portion of Employee’s annual bonus for the year in which termination occurs, based on Employee’s actual performance through the Separation Date and determined in accordance with Section 7 4(b) of the Employment Agreement (a “Pro-Rata Bonus”), with such pro-rata amount based on the number of days Employee was employed during the fiscal year ((i) and (ii), the “Severance PaymentPayments”), and
(iii) continued payment on Employee’s behalf of 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,” and collectively with the Severance Payments, the “Severance Benefits”). 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”) will 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 made 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 a lump sum within sixty (60) days after such sections’ entirety. For the date avoidance of doubt, in the event Employee’s employment is terminated giving rise by the Company for Cause, Employee shall be entitled to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers only the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this AgreementAccrued Entitlements.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled will receive under this Section 7 is conditioned upon and subject to the separate cover information regarding Employee’s executing rights under the Consolidated Omnibus Budget Reconciliation Act and, if applicable, any state continuation coverage laws (collectively, “COBRA”). Employee acknowledges that Employee should review the COBRA notice and delivering the general release of claims in the form attached hereto as Exhibit B by the 45th day following the election forms carefully to understand Employee’s separation from service rights and not revoking the release within the seven (7) days after executing obligations to make timely elections, provide timely notification and delivering the release. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7make timely premium payments.
Appears in 1 contract
Sources: Transition and Separation Agreement (InnovAge Holding Corp.)
Severance. (a) If Following the Company terminates Employee’s Closing Date, Purchaser shall provide, and be solely liable for, severance pay and benefits to each Transferred Business Employee whose employment with Purchaser or one of its Affiliates terminates. Without limiting the Company without Cause generality of the foregoing, for the two-(2) year period following the Closing Date, each non-represented Transferred Business Employee whose employment terminates under circumstances entitling such employee to severance pursuant to the terms of Purchaser's Notice and Severance Pay Plan attached hereto as SCHEDULE 10.1(j) (the "PURCHASER SEVERANCE PLAN"), shall receive the severance pay and benefits set forth in the Purchaser Severance Plan (taking into account SECTION 10.1(e) hereof). With respect to non-represented Business Employees to whom Purchaser does not provide a job offer in accordance with SECTION 10.1(b) (whether due to a breach of SECTION 10.1(b) or due to the fact that Purchaser did not include such Business Employee on the list required by clause (ii) of the first sentence of Section 6(c10.1(b)) or any non-represented Business Employee who declines a job offer which requires "relocation" (as defined below) and whose employment is terminated by Vulcan within one hundred and twenty (120) calendar days after the Closing Date (or in the case of Business Employees who provide transition services to Purchaser at Purchaser's request following the Closing Date, ninety (90) calendar days after the cessation of Vulcan's provision of such services, and in the case of Business Employees who are on leave as of the Closing Date, ninety (90) calendar days following the end of such leave) (collectively referred to herein as "Non-Transferred Business Employees"), Purchaser agrees, following receipt of an itemized statement, to reimburse Vulcan promptly for the severance pay, costs of the benefits set forth on SCHEDULE 10.1(j) and costs of outplacement services (such outplacement services in no circumstances to exceed $250,000 in the aggregate or $5,500 per person) (including, in each case, any withholding and employer-paid employment taxes) payable or provided to such terminated Non-Transferred Business Employees in accordance with SCHEDULE 10.1(j). For purposes of the reimbursement obligations under this SECTION 10.1(j), the cost of medical benefits shall be at the premium or premium equivalent amount. For purposes hereof, a job offer will be deemed to require "relocation" if it is for a position at a work location that requires such Business Employee to travel more than an additional twenty-five (25) miles (one way each day) to work than such Business Employee traveled immediately prior to the expiration of the Initial Term, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of termination, subject to subsections (c) and (d)Closing Date.
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 1 contract
Severance. (ai) If Upon a termination of the Company terminates Employee’s Executive's employment with the Company without Cause (other than by reason of death or Disability which is addressed in accordance with Section 6(c) prior 5(d)(ii)), subject to the expiration satisfaction of the Initial TermRelease Condition described in Section 5(f) below, the Company shall pay Employee a severance Executive will be entitled to receive:
(A) payment an amount equal to twelve months of Employee’s the Executive's accrued and unpaid Base Salary as in effect on Compensation through the date of termination, subject the Executive's accrued and unused vacation days as of the date of termination, and reimbursement of incurred and unreimbursed expenses under Section 4(d), within thirty (30) days following the date of termination (collectively, the amounts in this subsection (A), the “Accrued Obligations”);
(B) any STI award earned with respect to subsections a fiscal year ending prior to the date of such termination but unpaid as of such date, payable at the same time in the year of termination as such payment would be made if the Executive continued to be employed by the Company (cthe “Prior Year STI Award”);
(C) any LTI award with respect to a fiscal year ending prior to the date of such termination but unpaid as of such date, shall be granted at the same time in the year of termination as such grant would be made if the Executive continued to be employed by the Company (the “Prior Year LTI Award”);
(D) unless the Executive was terminated for Cause or the Executive terminated his employment other than for Good Reason or the termination occurred at the expiration of the Term, an amount equal to the product of two (2) times the Executive's Base Compensation, which shall be paid in equal installments on the dates on which Executive’s Base Compensation would otherwise have been paid in accordance with the Company’s normal payroll dates in effect as of the date of Executive’s termination of employment as if Executive’s employment had continued for such period, provided that the delay of the payment of any such amounts pending satisfaction of the Release Condition described in Section 5(f) below shall be accumulated and paid on the first of the Company’s first such scheduled payroll date following satisfaction of the Release Condition;
(E) unless the Executive was terminated for Cause or the Executive terminated his employment other than for Good Reason, any STI award related to the year in which the termination occurs calculated based on actual performance through the end of the applicable performance period and prorated for the number of days of the Executive's employment in the year in which the termination occurs, payable in a single lump sum at the same time as such payment would be made if the Executive continued to be employed by the Company (the “Pro-Rata Bonus”). The Pro-Rata Bonus shall supersede any conflicting provisions in the STI Plan;
(F) unless the Executive was terminated for Cause or the Executive terminated his employment other than for Good Reason, an LTI Award shall be made for the service of the Executive during the portion of the year in which the termination occurs (the “Pro-Rata LTI Award”), which Pro-Rata LTI Award shall be equal to the product of (x) the number of RSUs that would be included in a LTI award if he had served for the entire year in which the termination occurred, times (y) a fraction, with the numerator being the number of days of the Executive’s employment in the year in which the termination occurs and the denominator being 365. The Pro-Rata LTI Award shall be granted at the same time as such award would be made if the Executive continued to be employed by the Company. The Pro-Rata LTI Award shall supersede any conflicting provision in the LTI Plan;
(G) unless the Executive was terminated for Cause or the Executive terminated his employment other than for Good Reason, all RSUs that have been granted to Executive (including those referenced in Section 5(d)(i)(C) and Section 5(d)(i)(F)), but that have not vested as of the date of termination of employment, shall vest in the Executive to the same extent as if his employment with the Company had continued through the expiration of the latest vesting period of the last RSUs awarded to him (dthe date of expiration of such last vesting period is referred to herein as the “Final Vesting Date”).. The foregoing vesting provision shall supersede any conflicting provisions in any Agreement as to Award of RSUs that would otherwise require forfeiture of RSUs that were not vested as of the date of termination of employment;
(bH) If unless the Executive was terminated for Cause or the Executive terminated his employment other than for Good Reason, an amount equal to the product of (x) $2,000 times (y) the number of full calendar months between the month in which the Executive was terminated and the month in which the Executive and his current spouse reach the age at which both of them are eligible to receive Medicare (or similar benefits under any successor legislation replacing Medicare; referred to herein collectively as the “Medicare Eligibility Age”)), payable in a single lump sum as soon as reasonably practical following satisfaction of the Release Condition described in Section 5(f) (the “Lump Sum Payment”). If, during the Term of this Agreement there time period covered in clause (y) above (“Coverage Period”), the monthly COBRA premium for MGP coverage is a CC Terminationgreater than $2,000 (“COBRA Excess Amount”), then MGP shall pay the COBRA Excess Amount to Executive on the Company’s last payroll date for each remaining month in the Coverage Period. If the Medicare Eligibility Age is increased after the Lump Sum Payment is made, then the Employee will Coverage Period shall be entitled to a severance payment (in addition to any other rights extended accordingly 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 an additional lump sum in cash shall be paid to Executive, as soon as reasonably practicable, in an amount equal to the sum of: difference between the original Lump Sum Payment and the amount that would have been computed as the product of clauses (ix) twelve months and (y) above if such extended Coverage Period had been used in clause (y) above to compute the original Lump Sum Payment.
(I) any other amounts or benefits due to the Executive under Section 4(f) of Employeethis Agreement or otherwise in accordance with the Company’s benefit, fringe benefit plans, programs or policies, payable at such times and otherwise in accordance with the terms and conditions such arrangements (the “Other Benefits”); and
(ii) Upon a termination of employment due to the Executive's death or Disability, the Executive or a representative of the Executive shall be entitled to the Accrued Obligations, the Other Benefits, the Prior Year STI Award, the Prior Year LTI Award, the Pro-Rata Bonus, and an amount equal to the Executive’s Base Salary Compensation (which shall be paid in equal installments on the dates on which Executive’s Base Compensation would otherwise have been paid in accordance with the Company’s normal payroll dates in effect on date as of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the EmployeeExecutive’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employeetermination of employment as if Executive’s employment is terminated giving rise to had continued for such Severance Payment pursuant to Section 7(a) or (b); period, provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A delay of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A payment of any such amounts pending satisfaction of the Code, Release Condition described in Section 5(f) below shall be accumulated and paid on the Severance Payment will be made on first of the Company’s first such scheduled payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion satisfaction of the Severance Payment that has been paid to him pursuant to Section 7Release Condition).
Appears in 1 contract
Severance. Upon termination of the Employee’s employment or expiration of the Employment Period the Employee shall be entitled to the following severance benefits:
(aA) The Employee shall be promptly paid (1) any earned but unpaid salary through his date of termination, and (2) all accrued and unused vacation, if any, and shall be promptly reimbursed for any expenses incurred in connection with the business of the Company, for which he would otherwise be entitled to reimbursement in accordance with Section 3(c)(vii) of this Agreement.
(B) The Employee shall receive any benefits that are payable under any benefit plans or programs based exclusively on the terms and conditions set forth in such plans or programs, except to the extent expressly modified by this Agreement.
(C) If the Company terminates termination of the Employment Period occurs by reason of the Employee’s employment with death, by the Company without Cause in accordance with (pursuant to Section 6(c5(c)) prior or due to the expiration Employee’s disability (as defined in Section 5(b)) or the Company’s non-extension of the Initial TermAgreement (pursuant to Section 1(c)), or by the Employee for Good Reason pursuant to Section 5(f), the Company shall:
(1) continue to pay the Employee an amount equal to his then current Salary, subject to Section 3(c)(viii)(F) below, for a period eighteen (18) months after the date of such termination (such applicable period, the “Severance Period”);
(2) if the termination date occurs after January 1 of any year, but on or before the date of payment of the Performance Bonus in respect of the Company’s performance for the preceding fiscal year (the “Bonus Payment Date”), the Company shall pay to the Employee the full amount of the Performance Bonus based on the performance goals for such preceding fiscal year, in the amount and at the time set forth in Section 3(c)(ii), above;
(3) if the termination date occurs after June 30 of any fiscal year, the Company shall pay to the Employee a severance payment an amount equal prorated portion of the Performance Bonus, if any, to twelve months which the Employee would have been entitled based on the performance goals relating to the fiscal year in which such termination occurs, which Performance Bonus, if any, shall be (I) prorated based on the number of Employee’s Base Salary as days in effect on the fiscal year occurring prior to the date of terminationtermination divided by the actual number of days in such fiscal year and (II) otherwise calculated and paid following completion of such fiscal year in the amount, subject if any, and at the time set forth in Section 3(c)(ii), above, and
(4) pay the Employee’s applicable COBRA coverage premiums for the Employee and his dependents for the Severance Period. Sums paid to subsections the Employee pursuant to this Section 3(c)(viii) are referred to herein as the “Severance Payment” and will be made minus applicable taxes and withholdings, and are contingent upon the Employee’s (cor, in the case of the Employee’s death, the Employee’s legal representative’s) executing (and not revoking such signature) a Release Agreement that is reasonable in content (including a mutual non-disparagement clause) and (d)is in a form mutually agreeable to the parties. None of the Severance Payments shall be considered in calculating pension or related benefits, if any.
(bD) If during After termination of the Term Employee’s employment, the Company shall have no severance or other obligations to the Employee as an employee other than those set forth in this Section 3(c)(viii), Section 5(a) and Section 5(b) or as required by applicable law. The Employee waives any rights to receive any other severance benefits from the Company under any severance plan or arrangement in existence prior to the Effective Date.
(E) The Employee shall be under no obligation to seek other employment and there shall be no offset against any amounts due the Employee under this Agreement on account of any remuneration attributable to any subsequent employment that the Employee may obtain.
(F) In the event the Employee violates his obligations under the agreements referred to in Section 7 of this Agreement there is a CC Termination, then and does not cure such violation within ten (10) business days after receipt by the Employee will be entitled to a severance payment (of written notice from the Company specifying such violation, in addition to any other rights and other amounts payable remedies available to the Employee under Company plans in which Employee is a participantCompany, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of 3(c)(viii)(C) shall immediately cease to be payable by the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months the Severance Payment is otherwise payable pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject Company to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 1 contract
Sources: Employment Agreement (Republic Companies Group, Inc.)
Severance. (a) If Subject to Employee's execution of a Release of Claims pursuant to Section 6 of this Agreement, if, during the Term, the Company terminates Employee’s 's employment with the Company without Cause in accordance with Section 6(c) prior to the expiration of the Initial TermCause, the Company shall pay Employee a severance payment an lump sum amount equal to twelve (12) months of Employee’s 's Base Salary as at the average rate in effect over the term of this agreement (the "Severance Payment"). If Employee becomes entitled to the Severance Payment, the Company shall pay the Severance Payment to Employee as soon as administratively practicable following the date on which the Release of Claims (described in Section 6 of this Agreement) becomes effective and irrevocable, but in no event later than sixty-five (65) days following the date on which Employee's Termination of Employment occurs. In addition to the Severance Payment, if Employee is enrolled in the Company's medical insurance plan on the date of terminationtermination and provided that Employee is entitled to continue such participation under applicable law and plan terms, subject the Company shall reimburse the cost of Employee's and his eligible dependents' participation in such plan pursuant to subsections any rights he (cor his dependents) and may have under COBRA (d).
the "COBRA Reimbursements") until the earlier of (a) twelve (12) months from the date of Employee's Termination of Employment; or (b) If during the Term of date Employee becomes eligible for similar benefits from a subsequent employer. Notwithstanding any provision in this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights and other amounts payable to the Employee under Company plans contrary, if, as of Employee's "separation from service" (as defined in which Section 409A), Employee is a participant"specified employee" (within the meaning of Section 409A) and if any payment, but without duplication for any amounts due reimbursement and/or in-kind benefit that constitutes nonqualified deferred compensation (within the meaning of Section 409A) is deemed to be triggered by Employee's separation from service, then, to the extent one or more exceptions to Section 409A are inapplicable, all payments, reimbursements, and in-kind benefits that constitute nonqualified deferred compensation (within the meaning of Section 409A) to Employee pursuant shall not be paid or provided to Section 7(a)) payable in a lump sum in cash in an amount equal to Employee during the sum of: six-month period following Employee's separation from service, and (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance postponed payment payable and/or reimbursement/in-kind amounts shall be paid to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty thirty (6030) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. However, if Employee is a “specified employee” as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that is more than six (6) months following Employee's separation from service; and (ii) any amounts payable to Employee after the Severance Payment is otherwise payable pursuant expiration of such six-month period shall continue to be paid to Employee in accordance with the terms of this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion of the Severance Payment that has been paid to him pursuant to Section 7.
Appears in 1 contract
Sources: Employment Agreement (Hickok Inc)
Severance. Upon termination of employment pursuant to Sections 8.2 (aother than section 8.2(d) If the Company terminates Employee’s employment which contains separate severance payment parameters applicable solely in connection with the Company without Cause a termination or reduction in accordance with Section 6(cduties after a Change of Control) prior or 8.4 (but in any event not upon termination of this Agreement pursuant to the Sections 8.1, 8.3, 8.5 or upon expiration of this Agreement or otherwise), and so long as the Initial TermExecutive executes a release in the Company’s customary form and the Executive has not breached any of his representations or covenants set forth herein, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of terminationExecutive, subject to subsections (c) and (d).
(b) If during the Term of this Agreement there is a CC Termination, then the Employee will be entitled to a severance payment (in addition to any other rights payments the Executive may be entitled to pursuant to the terms of this Agreement, the following:
(a) an amount equal to the greater of (x) the amount of Base Salary due and other amounts owing Executive through the expiration of the Term (such amount to be calculated based upon his then current Base Salary), or (y) two (2) times his then applicable Base Salary,
(b) an amount equal to a pro rata portion (based upon the portion of the Fiscal Year elapsed to the date of such termination) of the Annual Bonus, payable at the Company’s actual level of financial performance for the applicable fiscal year, but in no event lower than the “Threshold” level, which would have been payable to the Employee Executive had Executive been employed by the Company under Company plans this Agreement for the entire Fiscal Year in which Employee is such termination occurs; and
(c) an amount equal to a participantpro rata portion (based upon the portion of the Performance Period elapsed to the date of termination of this Agreement) of the Long Term Incentive Award set forth in Section 2(a)(v) above, but without duplication which would have been payable to the Executive had Executive been employed by the Company under this Agreement for any amounts the entire Performance Period. For purposes of this Section 9(c) and for calculating the number of shares due to Employee Executive hereunder, the Company’s financial performance shall be measured on the date of termination of this Agreement, as if the Performance Cycle had terminated on that date. All amounts payable pursuant to Section 7(a)Sections 8.2(d)or 9(a) payable shall be paid to Executive in a lump sum in cash in an amount equal to the sum of: cash, not later than ten (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, the highest Base Salary in effect during the three year period ending on the date of such CC Termination), and (ii) the Employee’s Average Annual Bonus, subject to subsections (c) and (d).
(c) Any severance payment payable to Employee pursuant to this Section 7 (a “Severance Payment”) will be made in a lump sum within sixty (6010) days after the date Employee’s employment is terminated giving rise to such Severance Payment of termination of this Agreement. Amounts, if any, payable pursuant to Section 7(a9(b) or (b); provided that Employee executes and delivers shall be paid to Executive in a lump sum in cash, simultaneously with the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made in the second calendar year. Howeverpayment, if Employee is a “specified employee” as defined in regulations under Section 409A any, of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject Annual Bonus to Section 409A of the Code, the Severance Payment will be made on the Company’s first payroll payment date that other executives, for the applicable Fiscal Year in which this Agreement is more than six (6) months the Severance Payment is otherwise payable terminated. Shares to be issued, if any, pursuant to Section 9(c) shall be issued to Executive not later than ten (10) days after the date of termination of this Agreement.
(d) Employee acknowledges The aggregate of all payments or benefits made or provided to Executive, in either cash and/or equity compensation, provided, if applicable, under Sections 8 and agrees 9 of this Agreement and under all other plans and programs of the Severance Company shall be referred to as the “Aggregate Payment”.
(e) In the event that the Aggregate Payment is determined to constitute a Parachute Payment, as such term is defined in Section 280G(b)(2) of the Code and an Excise Tax is thereafter applicable, then if reducing the Aggregate Payment to an amount which is one dollar less than the Employee is entitled under this Section 7 is conditioned upon and subject amount of the Aggregate Payment which could be made to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company Executive before any portion of the Severance Aggregate Payment that has been becomes subject to Excise Tax, results in the net after-tax amount to be received by the Executive being greater than the net after-tax amount to be received by the Executive prior to such reduction when taking into account the Excise Tax which would be paid by the Executive, then the Aggregate Payment shall be reduced (first by reducing cash payments and then by reducing any payments or benefits under any other Plan, arrangement or agreement) to him an amount which is one dollar less than the amount of the Aggregate Payment which could be made to the Executive before any portion of the Aggregate Payment become subject to Excise Tax.
(f) Any calculations and/or determinations which are required to be made in order to give effect to the provisions of Section 9(d) above shall be made by the Company’s independent auditor or, if such independent auditor is unwilling or unable to serve in this capacity, such other nationally recognized accounting or tax firm selected by the Company with the consent of the person serving as the Chief Executive Officer of the Company immediately prior to the Change of Control, which consent shall not be unreasonably withheld.
(g) Upon termination of employment pursuant to Section 7Sections 8.2 or 8.4, then the Executive’s unvested equity issued by the Company to Executive prior to the date of termination, shall continue to vest for a period of one (1) year from the termination of employment date.
Appears in 1 contract
Severance. (a) If Upon termination of your employment hereunder pursuant to this letter agreement, all obligations of the Company terminates Employeeshall cease, except the Company’s employment obligations to (i) comply with all state and federal laws and regulations applying to any benefits provided hereunder and (ii) pay the severance benefits, to the extent applicable, to you pursuant to the terms and conditions set forth in Section 2(b) below.
(b) In connection with your separation from the Company, commencing with the Company without Cause first month after your date of termination, and paid to you, or, to the extent that you are no longer living, your successor in trust of the ▇▇▇▇ ▇. ▇▇▇▇▇ Living Trust (dated 4/29/2005), in accordance with Section 6(c) prior to the expiration payroll procedures of the Initial TermCompany, all of which shall be subject to applicable withholding and payroll taxes, and such other deductions as may be required under the Company Company’s employee benefit plans, you shall pay Employee a severance payment be entitled to: (i) an amount equal to twelve (12) months’ severance pay at the monthly rate of your current base salary of $284,000, payable in twenty four (24) semi-monthly installments, (ii) continued medical coverage for you and your family for twelve (12) months following your date of Employee’s Base Salary as in effect termination on the same terms and conditions (including cost sharing) made available to senior executives of the Company; PROVIDED THAT such coverage shall terminate if you become eligible for employer-provided medical coverage during such twelve (12) month period, (iii) immediate vesting of 100% of your outstanding unvested options, stock appreciation rights, restricted stock, deferred stock or other similar equity awards granted by the Company, with all outstanding options and stock appreciation rights being exercisable under the earlier of the expiration of the original term of such awards or for three (3) months following your date of termination, subject (iv) a bonus for 2009 in the amount of $99,400, to subsections be paid at such time as bonuses are paid to other senior executives (currently estimated to be prior to the end of February 2010), and (v) a separation bonus of $124,013 payable in twenty four (24) semi-monthly installments. You agree and acknowledge that, other than as specifically provided for in this agreement, and excluding vested benefits, if any, under the Company’s 401(k) plan, which shall be paid to him in accordance with the terms of that plan, no additional payments are due from the Company on any basis whatsoever.
(c) and (d).
(b) If during Notwithstanding anything to the Term of this Agreement there is a CC Terminationcontrary contained herein, then the Employee will you shall be entitled to a severance payment (the benefits described in addition to any other rights Section 2(b) if and other amounts payable to the Employee under Company plans in which Employee is a participant, but without duplication for any amounts due to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: only if (i) twelve months of Employee’s Base Salary in effect on date of such CC Termination (or, if greater, you have executed and delivered this agreement to the highest Base Salary in effect during the three year period ending on the date of such CC Termination)Company, and (ii) subsequent to your separation, you shall not have (A) revoked or breached this agreement including the Employee’s Average Annual Bonusprovisions of the general release set forth in Section 12 hereof, subject or (B) applied for unemployment compensation chargeable to subsections (c) and (d)the company during such severance period.
(cd) Any severance Notwithstanding anything herein to the contrary, if, at the time any payment is payable to Employee you pursuant to the provisions of this letter agreement as a result of your “separation from service” (within the meaning of Section 7 409A of the Internal Revenue Code of 1986, as amended (a the “Severance PaymentCode”) will be made in a lump sum within sixty (60) days after and the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (bregulations promulgated thereunder); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar years, the Severance Payment will be made Company or any company in the second calendar year. Howeveraffiliated group in which the Company’s financial statements are consolidated in accordance with generally accepted accounting principles has a class of equity securities traded on an established domestic or foreign securities market or otherwise including, if Employee is without limitation, trading on an American exchange only as American Depositary receipts and you are then designated a “specified employeeperson” (as such term is defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject regulations promulgated thereunder) on a list prepared by the Company periodically pursuant to Section 409A of the CodeCode and the regulations promulgated thereunder, then, to the Severance Payment will be made on extent required by Section 409A of the Company’s first payroll payment Code and the regulations promulgated thereunder, during the six month period from and after the date that is more than six (6) months of your “separation from service” the Severance Payment is otherwise amount payable to you pursuant to this Agreement.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this provisions of Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar years, the Severance Payment will be paid in the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 2 of this Agreement. If Employee breaches any letter agreement shall not exceed the lesser of his obligations in Sections 8-11 of this Agreement, he will immediately return to (x) two times your annual base compensation or (y) two times the Company any portion of the Severance Payment that has been paid to him amount determined pursuant to Section 7401(a)(17) of the Code, and any excess amount which accrues to you during such period shall be withheld during such period and paid to you in a lump sum upon the expiration of six months after the date of “separation from service” (or, if earlier than the end of such six month period, upon your death).
Appears in 1 contract
Sources: Separation Agreement (optionsXpress Holdings, Inc.)
Severance. (a) If the Company terminates Employee’s employment with the Company without Cause For and in accordance with Section 6(c) prior to the expiration consideration of the Initial Termexecution of this Agreement, the Company shall pay Employee a severance payment an amount equal to twelve months of Employee’s Base Salary as in effect on the date of terminationAronex will, subject to subsections the terms set forth herein, pay to Employee a total payment of $160,000.00 (c"Severance Payment"), less standard deductions. The Severance Payment shall be paid in twenty-four (24) semimonthly payments of $6,666.66, subject to standard deductions, for the period beginning as of July 16, 1999 and (d)continuing through July 15, 2000, payable as and when Employee would have otherwise received her salary. The obligation of Aronex to pay, and the Employee's right to receive, the Severance Payment herein provided shall not terminate upon the Employee's commencement of employment with another employer.
(b) If during In addition to the Term foregoing, and in further consideration of the execution of this Agreement there is a CC TerminationAgreement, then Aronex does hereby agree to amend the Employee will be entitled to a severance payment terms of those three (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 3) certain stock options previously granted by Aronex to Employee pursuant to Section 7(a)) payable in a lump sum in cash in an amount equal to the sum of: as follows:
(i) twelve months That certain Non-Qualified Stock Option Agreement dated August 18, 1997, for 13,610 shares of Employee’s Base Salary in effect on date the Company's common stock, par value $.001 per share (the "Common Stock") and that certain Incentive Stock Option Agreement dated August 18, 1997, for 86,390 shares of Common Stock are each hereby amended to allow, under Section 4 of each such CC Termination (or, if greateragreement, the highest Base Salary in effect during exercise of the three year vested portions of the options evidenced thereby for a period ending on of up to ninety (90) days following the date Effective Date of such CC Termination), and Resignation.
(ii) That certain Non-Qualified Stock Option Agreement dated December 10, 1998 for 50,000 shares of the Employee’s Average Annual BonusCompany's Common Stock (the "'98 Option Agreement") is hereby amended as follows:
(A) The option evidenced by the '98 Option Agreement shall, subject to subsections the terms of this Agreement, be fully vested and exercisable as of the Effective Date of Resignation.
(cB) The '98 Option Agreement is amended to allow, under Section 4 thereof, the exercise of the option evidenced thereby for a period of up to ninety (90) days following the Effective Date of Resignation. In all other respects, the terms and (d)provisions of the above described Stock Option Agreements shall remain in full force and effect as originally written.
(c) Any severance payment payable The Employee and Aronex hereby stipulate and agree that as of the effective date of this Agreement and after giving effect to Employee pursuant to this Section 7 (a “Severance Payment”the amendments in Paragraph 1(a) will be made in a lump sum within sixty (60) days after the date Employee’s employment is terminated giving rise to such Severance Payment pursuant to Section 7(a) or (b); provided that Employee executes and delivers the release contemplated by Section 7(d) and such release becomes effective and irrevocable. If such sixty (60) day period spans two calendar yearsabove, the Severance Payment will number of shares of Common Stock vested, and which may be made in acquired upon the second calendar year. Howeverexercise of such options, if Employee is a “specified employee” shall be as defined in regulations under Section 409A of the Code and the Severance Payment constitutes “nonqualified deferred compensation” that is subject to Section 409A of the Codefollows:
(i) Non-Qualified Stock Option Agreement dated August 18, the Severance Payment will be made on the Company’s first payroll payment date that is more than six 1997 -- 13,610 shares;
(6ii) months the Severance Payment is otherwise payable pursuant to this AgreementIncentive Stock Option Agreement dated August 18, 1997 -- 49,077 shares; and
(iii) Non-Qualified Stock Option Agreement dated December 10, 1998 -- 50,000 shares.
(d) Employee acknowledges and agrees the Severance Payment to which the Employee is entitled under this Section 7 is conditioned upon and subject to the Employee’s executing and delivering the general release of claims Except as provided in the form attached hereto as Exhibit 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. If such forty-five (45) day period plus the seven (7) day revocation period spans two calendar yearsParagraph 3 below, the Severance Payment will be paid in and the second calendar year. Employee’s right to the Severance Payment is further conditioned upon Employee’s continued compliance with Sections 8-11 of this Agreement. If Employee breaches any of his obligations in Sections 8-11 of this Agreement, he will immediately return to the Company any portion amendments of the Severance Payment that has been paid to him pursuant to Section 7above described Stock Option Agreements represent the exclusive consideration given by Aronex in connection with or arising out of the termination of Employee's employment with Aronex, and no further amounts or other consideration shall be required for any items, including, but not limited to, attorneys' fees.
Appears in 1 contract