Termination Severance. (a) Executive’s employment may be terminated by the Company at any time with or without Cause by delivery of written notice of termination to Executive. Upon any termination of Executive’s employment for any reason, Executive shall automatically be deemed to have resigned all positions as an officer of the Company and any subsidiary of the Company. Unless otherwise requested by the Board, Executive shall be deemed to have resigned from his position as a director of the Company and any subsidiaries upon termination of his employment for any reason. (b) Subject to the provisions of Sections 7(c), (d) and (e) below, in the event the Company terminates Executive without Cause (for reasons other than his death, but including termination as a result of his Disability) or Executive resigns for Good Reason, in addition to any accrued but unpaid compensation due to him under applicable law, any earned but unpaid Bonus (the timing of which shall be governed by Section 4 hereof) and performance-based equity for the fiscal year ending immediately before the year of termination of employment, and any Other Benefits (as defined below), Executive shall be entitled to receive the following: (i) continuation of health insurance (or reimbursement of Executive for the costs of such continuation) under COBRA for a period equal to the lesser of eighteen (18) months following termination of employment or the maximum continuation coverage period allowed under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”); provided, however, that the Company’s obligation to pay the costs of continuation health insurance coverage shall terminate at such time as Executive is covered under any other group health insurance plan; plus (ii) an aggregate cash payment totaling 150% of Executive’s then current Base Salary, which amount shall be payable in installments (but no less frequently than monthly) over the eighteen (18) month period following the date of termination of employment in accordance with the Company’s normal payroll practices (the “Periodic Payments”); plus (iii) a lump sum cash payment (the “Lump Sum Payment”) equal to (A) the lesser of the prior fiscal year Bonus paid or payable to Executive or 100% of the target Bonus for the fiscal year of termination, multiplied by (B) a fraction equal to the number of days elapsed in such fiscal year divided by 365; provided, however, that, with respect to a termination that occurs in fiscal 2018, the lump sum payment in (iii) above shall be no less than (x) 50% of the target Bonus for fiscal 2018, multiplied by (y) a fraction equal to the number of days elapsed in such fiscal year divided by 365; plus (iv) immediate vesting of any equity to the extent such equity would have become vested had Executive remained in continuous service with the Company for 90 days after the termination of his employment occurred. Payment of the Periodic Payments shall commence, and the Lump Sum Payment shall be paid sixty (60) days following the date of Executive’s Separation from Service (as defined in Section 9 below). The Periodic Payments and Lump Sum Payment shall be conditioned expressly upon Executive executing the Company’s standard form of general release of the Company and its affiliates, which release shall be provided to Executive no later than the date of his Separation from Service and which release shall be legally effective on or prior to the 60th day subsequent to Executive’s Separation from Service. Notwithstanding anything to the contrary contained in this Agreement, (i) the total Periodic Payments and Lump Sum Payment shall be reduced by the amount of any payments Executive is entitled to receive under any Company-provided disability policy, to the extent permissible under Code Section 409A, and (ii) in addition to any rights and remedies available to it under this Agreement or applicable law, the Company shall have the right to immediately terminate payments due under clauses (i) through (iii) of this Section 7(b) in the event of Executive’s breach of his obligations under Section 8 of this Agreement. (c) In lieu of any payments due pursuant to Section 7(b) above, in the event the Company terminates Executive without Cause (for reasons other than his death or Disability) or Executive resigns for Good Reason within the period ninety (90) days prior to, or twelve (12) months following, a Change of Control (as defined in the Plan), and in addition to any accrued but unpaid compensation due to him under applicable law, any earned but unpaid Bonus (the timing of which shall be governed by Section 4 hereof) and performance-based equity for the fiscal year ending immediately before the year of termination of employment, and any Other Benefits (as defined below), Executive shall be entitled to receive the following: (i) reimbursement to Executive of the costs of continuation of health insurance coverage under COBRA for a period equal to the lesser of eighteen (18) months following termination of employment or the maximum continuation coverage period allowed under COBRA; plus (ii) a lump sum cash payment, payable within 60 days of Executive’s Separation from Service (as defined in Section 9 below), equal to 200% of Executive’s then current Base Salary plus the lesser of (A) the prior fiscal year Bonus paid or payable to Executive or (B) 100% of the target Bonus for the fiscal year of termination, plus (iii) to the extent vesting is not automatically accelerated under the terms of the Plan, immediate 100% vesting of any equity, including vesting of any performance-based equity as if 100% of the target performance goals for the fiscal year of termination of employment had been achieved (provided that no such vested option, if any, may be exercised beyond any time-frame permissible under Code Section 409A). The payments set forth in this Section 7(c) shall be conditioned expressly upon Executive executing the Company’s standard form of general release of the Company and its affiliates, which release shall be provided to Executive no later than the date of his Separation from Service and which release shall be legally effective on or prior to the 60th day subsequent to Executive’s Separation from Service. (d) In the event Executive resigns or voluntarily terminates his employment for any reason (other than for Good Reason) or Executive’s employment is terminated for Cause or as a result of his death, the Company shall only be required to pay Executive (i) any unpaid Base Salary and accrued vacation pay earned prior to the date of Executive’s termination, (ii) any unpaid reimbursements due Executive for expenses incurred by Executive prior to the date of Executive’s termination, (iii) any accrued but unpaid car allowance accrued prior to the date of Executive’s termination, and (iv) any benefits that are required, or to which Executive is entitled, under any plan, contract or arrangement maintained by the Company as of the end of his employment, in each case on the date on which such payment or benefit would otherwise have been payable to Executive under the Company’s payroll practices or the terms of the applicable contract or plan (or, in the case of accrued vacation day, on the 60th day following the date of Executive’s Separation from Service); provided, however, nothing in this clause (iv) shall require the continuation of such benefits following termination unless such continuation is required under applicable law or the specific terms of the plan, contract or arrangement (together, the “Other Benefits”). (e) For purposes of this Agreement, “Cause” shall mean (i) an act or acts of dishonesty undertaken by Executive and intended to result in material personal gain or enrichment of Executive or others at the expense of the Company, (ii) gross misconduct that is willful or deliberate on Executive’s part and that, in either event, is materially injurious to the Company, (iii) the conviction or plea of nolo contendere of Executive of a felony, (iv) the commission by Executive of any act involving moral turpitude which (A) brings the Company or any of its affiliates into public disrepute or disgrace, or (B) causes material injury to the customer relations, operations or the business prospects of the Company or its affiliates, in each case notwithstanding written notice of objection from the Board and the expiration of a 30-day cure period, (v) the ongoing and repeated material neglect of his duties on a general basis (other than as a result of illness or Disability), notwithstanding written notice of objection from the Board and the expiration of a 30 day cure period, or (vi) the material breach of any terms and conditions of this Agreement by Executive, which breach has not been cured by Executive within 30 days after written notice thereof to Executive from the Company. The cessation of employment by Executive shall not be deemed to be for Cause unless and until there shall have been delivered to Executive a copy of a resolution, duly adopted by the affirmative vote of not less than a majority of the entire non-employee membership of the Board (for the sake of clarity, not including Executive) at a meeting of the Board called and held for such purpose (after reasonable notice to Executive and an opportunity for him, together with his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, one or more causes for termination exist under this Section 7(e), and specifying the particulars thereof in detail.
Appears in 1 contract
Termination Severance. (a) Executive’s employment may be terminated by In the Company at any time with or without Cause by delivery of written notice of termination to Executive. Upon any termination of Executive’s employment for any reason, Executive shall automatically be deemed to have resigned all positions as an officer of the Company and any subsidiary of the Company. Unless otherwise requested by the Board, Executive shall be deemed to have resigned from his position as a director of the Company and any subsidiaries upon termination of his employment for any reason.
event (bi) Subject Employer terminates this Agreement prior to the provisions expiration of Sections 7(cits term or any extension thereof, other than termination for Cause (as defined in Section 9(c) below), or (ii) Employee terminates this Agreement with Good Reason (as defined in Section (d) and (e) below, in the event the Company terminates Executive without Cause (for reasons other than his death, but including termination as a result of his Disability) or Executive resigns for Good Reason, in addition to any accrued but unpaid compensation due to him under applicable law, any earned but unpaid Bonus (the timing of which shall be governed by Section 4 hereof) and performance-based equity for the fiscal year ending immediately before the year of termination of employment, and any Other Benefits (as defined below), Executive Employee shall be entitled to immediately receive the following: (i) continuation annual compensation and bonuses provided for in Section 3 of health insurance (or reimbursement of Executive this Agreement for the costs balance of such continuation) under COBRA for a period equal to the lesser term of eighteen (18) months following termination this Agreement, or two times the amount of employment or the maximum continuation coverage period allowed under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”)her then current year base salary and bonus whichever is greater; provided, however, the extent that the Company’s obligation to said severance benefit or pay the costs of continuation health insurance coverage shall terminate at such time constitutes a "golden parachute payment" or a "prohibited indemnification payment" as Executive is covered under any other group health insurance plan; plus defined in 12 U.S.C. Section 1828 (ii) an aggregate cash k), said payment totaling 150% of Executive’s then current Base Salary, which amount shall be payable in installments (but no less frequently than monthly) over the eighteen (18) month period following the date of termination of employment in accordance with the Company’s normal payroll practices (the “Periodic Payments”); plus (iii) a lump sum cash payment (the “Lump Sum Payment”) equal to (A) the lesser of the prior fiscal year Bonus paid or payable to Executive or 100% of the target Bonus for the fiscal year of termination, multiplied by (B) a fraction equal made only to the number of days elapsed in extent permitted under such fiscal year divided by 365regulations; provided, howeverfurther, that, with respect Employer shall seek all required approvals and/or consents to a termination that occurs in fiscal 2018, the lump sum permit payment in (iii) above shall be no less than (x) 50% of the target Bonus for fiscal 2018, multiplied by (y) a fraction equal said severance benefit to the number of days elapsed in such fiscal year divided by 365; plus (iv) immediate vesting of any equity maximum extent. Notwithstanding the foregoing, to the extent such equity would have become vested had Executive remained in continuous service with the Company for 90 days after the termination that any portion of his employment occurred. Payment said severance benefit or pay constitutes an "excess parachute payment" under Section 280G of the Periodic Payments shall commenceUnited States Internal Revenue Code, and the Lump Sum Payment shall be paid sixty (60) days following the date of Executive’s Separation from Service (as defined in Section 9 below). The Periodic Payments and Lump Sum Payment shall be conditioned expressly upon Executive executing the Company’s standard form of general release of the Company and its affiliates, which release shall be provided to Executive no later than the date of his Separation from Service and which release shall be legally effective on said severance benefit or prior to the 60th day subsequent to Executive’s Separation from Service. Notwithstanding anything to the contrary contained in this Agreement, (i) the total Periodic Payments and Lump Sum Payment pay shall be reduced by the amount of any payments Executive is entitled the tax deduction disallowed to receive under any Company-provided disability policy, to the extent permissible under Code Section 409A, and (ii) in addition to any rights and remedies available to it under this Agreement or applicable law, the Company shall have the right to immediately terminate payments due under clauses (i) through (iii) of this Section 7(b) in the event of Executive’s breach of his obligations under Section 8 of this Agreement.
(c) In lieu of any payments due pursuant to Section 7(b) above, in the event the Company terminates Executive without Cause (for reasons other than his death or Disability) or Executive resigns for Good Reason within the period ninety (90) days prior to, or twelve (12) months following, a Change of Control (as defined in the Plan), and in addition to any accrued but unpaid compensation due to him under applicable law, any earned but unpaid Bonus (the timing of which shall be governed by Section 4 hereof) and performance-based equity for the fiscal year ending immediately before the year of termination of employment, and any Other Benefits (as defined below), Executive shall be entitled to receive the following: (i) reimbursement to Executive of the costs of continuation of health insurance coverage under COBRA for a period equal to the lesser of eighteen (18) months following termination of employment or the maximum continuation coverage period allowed under COBRA; plus (ii) a lump sum cash payment, payable within 60 days of Executive’s Separation from Service (as defined in Section 9 below), equal to 200% of Executive’s then current Base Salary plus the lesser of (A) the prior fiscal year Bonus paid or payable to Executive or (B) 100% of the target Bonus for the fiscal year of termination, plus (iii) to the extent vesting is not automatically accelerated under the terms of the Plan, immediate 100% vesting of any equity, including vesting of any performance-based equity as if 100% of the target performance goals for the fiscal year of termination of employment had been achieved (provided that no such vested option, if any, may be exercised beyond any time-frame permissible under Code Section 409A). The payments set forth in this Section 7(c) shall be conditioned expressly upon Executive executing the Company’s standard form of general release of the Company and its affiliates, which release shall be provided to Executive no later than the date of his Separation from Service and which release shall be legally effective on or prior to the 60th day subsequent to Executive’s Separation from Service.
(d) In the event Executive resigns or voluntarily terminates his employment for any reason (other than for Good Reason) or Executive’s employment is terminated for Cause or Employer as a result of his death, the Company shall only be required to pay Executive (i) any unpaid Base Salary and accrued vacation pay earned prior to the date of Executive’s termination, (ii) any unpaid reimbursements due Executive for expenses incurred by Executive prior to the date of Executive’s termination, (iii) any accrued but unpaid car allowance accrued prior to the date of Executive’s termination, and (iv) any benefits that are required, or to which Executive is entitled, under any plan, contract or arrangement maintained by the Company as of the end of his employment, in each case on the date on which such payment or benefit would otherwise have been payable to Executive under the Company’s payroll practices or the terms of the applicable contract or plan (or, in the case of accrued vacation day, on the 60th day following the date of Executive’s Separation from Service); provided, however, nothing in this clause (iv) shall require the continuation of such benefits following termination unless such continuation is required under applicable law or the specific terms of the plan, contract or arrangement (together, the “Other Benefits”)excess parachute payment.
(eb) For purposes Employer's Board of this AgreementDirectors may terminate Employee's employment at any time, “Cause” shall mean (i) an act or acts but any termination by the Employer's Board of dishonesty undertaken by Executive and intended to result in material personal gain or enrichment of Executive or others at the expense of the Company, (ii) gross misconduct that is willful or deliberate on Executive’s part and that, in either event, is materially injurious to the Company, (iii) the conviction or plea of nolo contendere of Executive of a felony, (iv) the commission by Executive of any act involving moral turpitude which (A) brings the Company or any of its affiliates into public disrepute or disgrace, or (B) causes material injury to the customer relations, operations or the business prospects of the Company or its affiliates, in each case notwithstanding written notice of objection from the Board and the expiration of a 30-day cure period, (v) the ongoing and repeated material neglect of his duties on a general basis (Directors other than as a result of illness termination for Cause, shall not prejudice Employee's right to compensation or Disability), notwithstanding written notice of objection from other benefits under the Board and the expiration of a 30 day cure period, or (vi) the material breach of any terms and conditions of this Agreement by Executive, which breach has not been cured by Executive within 30 days after written notice thereof to Executive from the Companycontract. The cessation of employment by Executive shall not be deemed to be for Cause unless and until there Employee shall have been delivered no right to Executive a copy of a resolution, duly adopted by the affirmative vote of not less than a majority of the entire non-employee membership of the Board (receive compensation or other benefits for the sake of clarity, not including Executive) at a meeting of the Board called and held any period after termination for such purpose (after reasonable notice to Executive and an opportunity for him, together with his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, one or more causes for termination exist under this Section 7(e), and specifying the particulars thereof in detailCause.
Appears in 1 contract
Termination Severance. (a) Executive’s employment may be terminated by the Company at any time with or without Cause by delivery of written notice of termination to Executive. Upon any termination At the request of Executive’s employment for any reason, Executive shall automatically be deemed to have resigned all positions as an officer of the Company and any subsidiary of the Company. Unless otherwise requested by the Board, Executive shall be deemed agrees to have resigned resign from his position as a director of the Company and any subsidiaries upon within 24 hours after termination of his employment for any reason.
(b) Subject to the provisions of Sections 7(c), (d) and (ed) below, in the event the Company terminates Executive without Cause (for reasons other than his death, but including termination as a result of his death or Disability) or Executive resigns for Good Reason, in addition to any accrued but unpaid compensation due to him under applicable law, any amounts required to be paid to him pursuant to Section 5, any earned but unpaid Bonus (the timing of which shall be governed by Section 4 hereof) and performance-based equity for the fiscal year ending immediately before the year of termination of employment, and any Other Benefits (as defined below), Executive he shall be entitled to receive the following: (i) continuation a lump sum cash payment thirty days following the date of health insurance (or reimbursement of Executive for the costs of such continuation) under COBRA for a period his Separation from Service equal to the lesser of eighteen (18) months following termination of employment or the maximum continuation coverage period allowed under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”); provided, however, that the Company’s obligation to pay the costs of continuation health insurance coverage shall terminate at such time as Executive is covered under any other group health insurance plan; plus (ii) an aggregate cash payment totaling 150100% of Executive’s then current the Base Salary, which amount shall Salary that would be payable in installments (but no less frequently than monthly) over the eighteen (18) month period following due to Executive between the date of termination of employment and the later of the Termination Date or any Extended Termination Date, (ii) payment of the car allowance described in accordance with Section 6(b) through the Company’s normal payroll practices (later of the “Periodic Payments”); plus Termination Date or any Extended Termination Date, (iii) a lump sum cash payment (the “Lump Sum Payment”) equal to (A) the lesser of the prior fiscal year Bonus paid or payable to Executive or 100% of the target Bonus for the fiscal year of termination, multiplied by (B) a fraction equal to the number of days elapsed in such fiscal year divided by 365; provided, however, that, with respect to a termination that occurs in fiscal 2018, the lump sum payment in (iii) above shall be no less than (x) 50% of the target Bonus for fiscal 2018, multiplied by (y) a fraction equal to the number of days elapsed in such fiscal year divided by 365; plus (iv) immediate vesting of any equity to the extent such equity would have become vested had Executive remained in continuous service with the Company for 90 days after the termination of his employment occurred. Payment of the Periodic Payments shall commence, and the Lump Sum Payment shall be paid sixty (60) thirty days following the date of Executive’s his Separation from Service equal to a pro rata portion (based on the percentage of days employed for the year in question) of the Bonus for the year in which the termination occurs in the event that the Board of Directors reasonably and in good faith determines that Executive was on track to satisfy the relevant performance criteria for such Bonus (the “Pro Rata Bonus Payment”), (iv) if Executive is not covered by any other comprehensive group insurance, the Company will reimburse Executive an amount equivalent to Executive’s COBRA payments through the end of the Termination Date or Extended Termination Date, as defined in Section 9 below)the case may be, or if less, the maximum term provided by COBRA for coverage of Executive and his eligible dependents. The Periodic Payments and Lump Sum Payment It shall be conditioned expressly upon a condition to receipt of the consideration described in this Section 7(b) that Executive executing shall execute the Company’s standard form of general release of the Company and its affiliates, which release shall be provided to Executive no later than the date of his Separation from Service and which release shall be legally effective on or prior to the 60th day subsequent to Executive’s Separation from Service. Notwithstanding anything to the contrary contained in this Agreement, (i) the total Periodic Payments and Lump Sum Payment shall be reduced by the amount of any payments Executive is entitled to receive under any Company-provided disability policy, to the extent permissible under Code Section 409A, and (ii) in addition to any rights and remedies available to it under this Agreement or applicable law, the Company shall have the right to immediately terminate payments due under clauses (i) through (iii) of this Section 7(b) in the event of Executive’s breach of his obligations under Section 8 of this Agreement.
(c) In lieu of any payments due pursuant to Section 7(b) above, in the event the Company terminates Executive without Cause (for reasons other than his death or Disability) or Executive resigns for Good Reason within the period ninety (90) days prior to, or twelve (12) months following, a Change of Control (as defined in the Plan), and in addition to any accrued but unpaid compensation due to him under applicable law, any earned but unpaid Bonus (the timing of which shall be governed by Section 4 hereof) and performance-based equity for the fiscal year ending immediately before the year of termination of employment, and any Other Benefits (as defined below), Executive shall be entitled to receive the following: (i) reimbursement to Executive of the costs of continuation of health insurance coverage under COBRA for a period equal to the lesser of eighteen (18) months following termination of employment or the maximum continuation coverage period allowed under COBRA; plus (ii) a lump sum cash payment, payable within 60 days of Executive’s Separation from Service (as defined in Section 9 below), equal to 200% of Executive’s then current Base Salary plus the lesser of (A) the prior fiscal year Bonus paid or payable to Executive or (B) 100% of the target Bonus for the fiscal year of termination, plus (iii) to the extent vesting is not automatically accelerated under the terms of the Plan, immediate 100% vesting of any equity, including vesting of any performance-based equity as if 100% of the target performance goals for the fiscal year of termination of employment had been achieved (provided that no such vested option, if any, may be exercised beyond any time-frame permissible under Code Section 409A). The payments set forth in this Section 7(c) shall be conditioned expressly upon Executive executing the Company’s standard form of general release of the Company and its affiliates, which release shall be provided to Executive no later than the date of his Separation from Service and which release shall be legally effective on or prior to the 60th day subsequent to Executive’s Separation from Service.
(d) In the event Executive resigns or voluntarily terminates his employment for any reason (other than for Good Reason) or the Company terminates Executive’s employment is terminated for Cause (in each case other than by reason of death or as a result of his deathDisability), in addition to any amounts required to be paid pursuant to Section 5, the Company shall only be required to pay Executive (i) on the date it would have been payable to Executive, any unpaid Base Salary and accrued vacation pay earned prior to the date of Executive’s termination, (ii) any unpaid reimbursements due Executive for expenses incurred by Executive prior to the date of Executive’s termination, and (iii) any benefits that are required, or to which Executive is entitled, under any plan, contract or arrangement maintained by the Company as of the end of his employment; provided, however, nothing in this clause (iii) shall require the continuation of such benefits following termination unless such continuation is required under applicable law or the specific terms of the plan, contract or arrangement (together, the “Other Benefits”).
(d) In the event of termination as a result of the death or Disability of Executive, in addition to any amounts required to be paid pursuant to Section 5, the Company shall only be required to pay Executive (or his estate or designated beneficiary) (i) on the date it would have been payable to Executive, any unpaid Base Salary and accrued vacation pay earned prior to the date of Executive’s termination, (ii) any unpaid reimbursements due Executive for expenses incurred by Executive prior to the date of Executive’s termination, (iii) any accrued earned but unpaid car allowance accrued prior to Bonus for the date fiscal year ending immediately before the termination of Executive’s terminationemployment, and (iv) any benefits that are requiredPro Rata Bonus Payment, or to which Executive is entitled, under and (v) any plan, contract or arrangement maintained by the Company as of the end of his employment, in each case on the date on which such payment or benefit would otherwise have been payable to Executive under the Company’s payroll practices or the terms of the applicable contract or plan (or, in the case of accrued vacation day, on the 60th day following the date of Executive’s Separation from Service); provided, however, nothing in this clause (iv) shall require the continuation of such benefits following termination unless such continuation is required under applicable law or the specific terms of the plan, contract or arrangement (together, the “Other Benefits”).
(e) For purposes of this Agreement, “Cause” shall mean (i) an act or acts of dishonesty undertaken by Executive and intended to result in material personal gain or enrichment of Executive or others at the expense of the Company, (ii) gross misconduct that is willful or deliberate on Executive’s part and that, in either event, is materially injurious to the Company, (iii) the conviction or plea of nolo contendere of Executive of a felony, or (iv) the commission by Executive of any act involving moral turpitude which (A) brings the Company or any of its affiliates into public disrepute or disgrace, or (B) causes material injury to the customer relations, operations or the business prospects of the Company or its affiliates, in each case notwithstanding written notice of objection from the Board and the expiration of a 30-day cure period, (v) the ongoing and repeated material neglect of his duties on a general basis (other than as a result of illness or Disability), notwithstanding written notice of objection from the Board and the expiration of a 30 day cure period, or (vi) the material breach of any terms and conditions of this Agreement by Executive, which breach has not been cured by Executive within 30 days after written notice thereof to Executive from the Company. The cessation of employment by Executive shall not be deemed to be for Cause unless and until there shall have been delivered to Executive a copy of a resolution, duly adopted by the affirmative vote of not less than a majority of the entire non-employee membership of the Board (for the sake of clarity, not including Executive) at a meeting of the Board called and held for such purpose (after reasonable notice to Executive and an opportunity for him, together with his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, one or more causes for termination exist under this Section 7(e), and specifying the particulars thereof in detail.
Appears in 1 contract
Termination Severance. (a) 3.1 The Executive’s 's employment hereunder may be terminated by upon the Company at occurrence of any time with or without Cause by delivery of written notice of termination to Executive. Upon any termination of Executive’s employment for any reason, Executive shall automatically be deemed to have resigned all positions as an officer of the Company and any subsidiary of the Company. Unless otherwise requested by the Board, Executive shall be deemed to have resigned from his position as a director of the Company and any subsidiaries upon termination of his employment for any reason.following:
(b) Subject to the provisions of Sections 7(c), (d) and (e) below, in the event the Company terminates Executive without Cause (for reasons other than his death, but including termination as a result of his Disability) or Executive resigns for Good Reason, in addition to any accrued but unpaid compensation due to him under applicable law, any earned but unpaid Bonus (the timing of which shall be governed by Section 4 hereof) and performance-based equity for the fiscal year ending immediately before the year of termination of employment, and any Other Benefits (as defined below), Executive shall be entitled to receive the following: (i) continuation of health insurance (or reimbursement of Executive for the costs of such continuation) under COBRA for a period equal to the lesser of eighteen (18) months following termination of employment or the maximum continuation coverage period allowed under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”); provided, however, that the Company’s obligation to pay the costs of continuation health insurance coverage shall terminate at such time as Executive is covered under any other group health insurance plan; plus (ii) an aggregate cash payment totaling 150% of Executive’s then current Base Salary, which amount shall be payable in installments (but no less frequently than monthly) over the eighteen (18) month period following the date of termination of employment in accordance with the Company’s normal payroll practices (the “Periodic Payments”); plus (iii) a lump sum cash payment (the “Lump Sum Payment”) equal to (A) the lesser of the prior fiscal year Bonus paid or payable to Executive or 100% of the target Bonus for the fiscal year of termination, multiplied by (B) a fraction equal to the number of days elapsed in such fiscal year divided by 365; provided, however, that, with respect to a termination that occurs in fiscal 2018, the lump sum payment in (iii) above shall be no less than (x) 50% of the target Bonus for fiscal 2018, multiplied by (y) a fraction equal to the number of days elapsed in such fiscal year divided by 365; plus (iv) immediate vesting of any equity to the extent such equity would have become vested had Executive remained in continuous service with the Company for 90 days after the termination of his employment occurred. Payment of the Periodic Payments shall commence, and the Lump Sum Payment shall be paid sixty (60) days following the date of Executive’s Separation from Service (as defined in Section 9 below). The Periodic Payments and Lump Sum Payment shall be conditioned expressly upon Executive executing the Company’s standard form of general release of the Company and its affiliates, which release shall be provided to Executive no later than the date of his Separation from Service and which release shall be legally effective on or prior to the 60th day subsequent to Executive’s Separation from Service. Notwithstanding anything to the contrary contained in this Agreement, (i) the total Periodic Payments and Lump Sum Payment shall be reduced by death of the amount of any payments Executive is entitled to receive under any Company-provided disability policy, to the extent permissible under Code Section 409A, and Executive;
(ii) in addition to any rights and remedies available to it under this Agreement or applicable law, voluntary termination by the Company shall have the right to immediately terminate payments due under clauses (i) through (iii) of this Section 7(b) in the event of Executive’s breach of his obligations under Section 8 of this Agreement.
(c) In lieu of any payments due pursuant to Section 7(b) above, in the event the Company terminates Executive without Cause (for reasons other than his death or Disability) or Executive resigns for Good Reason within the period upon ninety (90) days prior to, or twelve (12) months following, a Change of Control (as defined in the Plan), and in addition to any accrued but unpaid compensation due to him under applicable law, any earned but unpaid Bonus (the timing of which shall be governed by Section 4 hereof) and performance-based equity for the fiscal year ending immediately before the year of termination of employment, and any Other Benefits (as defined below), Executive shall be entitled to receive the following: (i) reimbursement to Executive of the costs of continuation of health insurance coverage under COBRA for a period equal days' notice to the lesser of eighteen Company (18"Voluntary Termination") months following or termination of employment or by the maximum continuation coverage period allowed under COBRA; plus Company upon ninety (ii90) a lump sum cash payment, payable within 60 days of Executive’s Separation from Service days' notice to the Executive (as defined in Section 9 below"Involuntary Termination"), equal to 200% of Executive’s then current Base Salary plus the lesser of (A) the prior fiscal year Bonus paid or payable to Executive or (B) 100% of the target Bonus for the fiscal year of termination, plus ;
(iii) to the extent vesting is not automatically accelerated under the terms inability of the Plan, immediate 100% vesting Executive to render the services to be rendered by the Executive pursuant to this Agreement for a continuous period of ninety (90) successive days or for shorter periods aggregating one hundred twenty (120) days or more during any equity, including vesting of any performance180-based equity as if 100% of day period ("Disability");
(iv) upon a change in control in the target performance goals for Corporation where the fiscal year of termination of employment had been achieved phrase Change in Control shall mean (provided that no such vested option, if any, may be exercised beyond any time-frame permissible under Code Section 409A). The payments set forth in this Section 7(c1) shall be conditioned expressly upon Executive executing the Company’s standard form of general release of the Company and its affiliates, which release shall be provided to Executive no later than on the date of his Separation from Service and which release shall be legally effective on the merger or consolidation of the Corporation with another entity where the members of the Board, immediately prior to the 60th day subsequent to Executive’s Separation from Service.
merger or consolidation, would not immediately after the merger or consolidation, constitute a majority of the Board of Directors of the entity issuing cash or securities in the merger or consolidation, or (d2) In the event Executive resigns or voluntarily terminates his employment for any reason (other than for Good Reason) or Executive’s employment is terminated for Cause or as a result of his death, the Company shall only be required to pay Executive (i) any unpaid Base Salary and accrued vacation pay earned prior to on the date of the sale or other disposition of all or substantially all of the assets of the Corporation;
(v) Termination of the Executive’s termination's employment hereunder by the Corporation at any time for "cause", (ii) any unpaid reimbursements due Executive for expenses incurred by Executive prior such termination to take effect immediately upon written notice from the Corporation to the date of Executive’s termination;
(vi) At the Executive's discretion, (iii) any accrued but unpaid car allowance accrued prior to the date of Executive’s termination, and (iv) any benefits that are required, or to which Executive is entitled, under any plan, contract or arrangement maintained by the Company as of the end of his employment, in each case on the date on which such payment or benefit would otherwise have been payable to Executive under the Company’s payroll practices or the terms of the applicable contract or plan (or, upon a significant change in the case Executive's job duties or responsibilities, where the phrase "Significant Change In The Executive's Job Duties Or Responsibilities" is defined to mean "a material change in the type of accrued vacation day, on the 60th day following the date of Executive’s Separation from Service); provided, however, nothing in this clause (iv) shall require the continuation of such benefits following termination unless such continuation is required under applicable law or the specific terms of the plan, contract or arrangement (together, the “Other Benefits”)work Executive performs".
(e) 3.2 For all purposes of this Agreement, “Cause” the term "cause" shall mean a determination by a majority of the members of the Board of Directors, other than the Executive, that (i) an act or acts of dishonesty undertaken by the Executive willfully refuses to obey reasonable and intended to result in material personal gain or enrichment of Executive or others at the expense lawful orders of the Company, Board; (ii) gross misconduct the Executive has willfully breached or habitually neglected his duty, provided that is willful or deliberate on Executive’s part and that, in either event, is materially injurious the Executive does not take reasonable steps to correct the Company, problem within fifteen (15) business days after written notice thereof; (iii) the conviction or plea Executive has been convicted in a court of nolo contendere of Executive law of a felonycrime or offense which involves dishonesty or fraud, (iv) the commission by Executive of any act involving moral turpitude which (A) brings the Company or has breached any of its affiliates into public disrepute the Executive's material obligations pursuant to this Agreement; or disgrace, or (B) causes material injury to the customer relations, operations or the business prospects of the Company or its affiliates, in each case notwithstanding written notice of objection from the Board and the expiration of a 30-day cure period, (v) the ongoing and repeated material neglect Executive has been convicted in a court of his duties on a general basis (other than as a result of illness or Disability), notwithstanding written notice of objection from law for the Board and the expiration commission of a 30 day cure period, or (vi) the material breach of any terms and conditions of this Agreement by Executive, which breach has not been cured by Executive within 30 days after written notice thereof to Executive from the Company. The cessation of employment by Executive shall not be deemed to be for Cause unless and until there shall have been delivered to Executive a copy of a resolution, duly adopted by the affirmative vote of not less than a majority of the entire non-employee membership of the Board (for the sake of clarity, not including Executive) at a meeting of the Board called and held for such purpose (after reasonable notice to Executive and an opportunity for him, together with his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, one or more causes for termination exist under this Section 7(e), and specifying the particulars thereof in detailfelony.
Appears in 1 contract
Termination Severance. (a) Executive’s employment may be terminated by the Company at any time with or without Cause by delivery of written notice of termination to Executive. Upon any termination of Executive’s 's employment for any reason, Executive shall automatically be deemed to have resigned all positions as an officer of the Company and any subsidiary of the Company. Unless otherwise requested by the Board, Executive shall be deemed to have resigned from his position as a director of the Company and any subsidiaries upon termination of his employment for any reason.
(b) Subject to the provisions of Sections 7(c), (d) and (e) below, in the event the Company terminates Executive without Cause (for reasons other than his death, but including termination as a result of his Disability) on or after the Effective Date (including a termination without Cause on or after the Effective Date but prior to the Commencement Date, in which case the provisions of this Section 7 shall supersede any other severance arrangement in effect for Executive) or Executive resigns for Good ReasonReason on or after the Commencement Date, in addition to any accrued but unpaid compensation due to him under applicable law, any earned but unpaid Bonus (the timing of which shall be governed by Section 4 hereof) and performance-based equity for the fiscal year ending immediately before the year of termination of employment, and any Other Benefits (as defined below), Executive shall be entitled to receive the following: (i) continuation of health insurance (or reimbursement of Executive for the costs of such continuation) under COBRA for a period equal to the lesser of eighteen (18) months following termination of employment or the maximum continuation coverage period allowed under the Consolidated Omnibus Budget Reconciliation Act (“"COBRA”"); provided, however, that the Company’s 's obligation to pay the costs of continuation health insurance coverage shall terminate at such time as Executive is covered under any other group health insurance plan; plus (ii) an aggregate cash payment totaling 150% of Executive’s 's then current Base Salary, which amount shall be payable in installments (but no less frequently than monthly) over the eighteen (18) month period following the date of termination of employment in accordance with the Company’s 's normal payroll practices (the “"Periodic Payments”"); plus (iii) a lump sum cash payment (the “"Lump Sum Payment”") equal to (A) the lesser of the prior fiscal year Bonus paid or payable to Executive or 100% of the target Bonus for the fiscal year of termination, multiplied by (B) a fraction equal to the number of days elapsed in such fiscal year divided by 365; provided, however, that, with respect to a termination that occurs in fiscal 2018, the lump sum payment in (iii) above shall be no less than (x) 50% of the target Bonus for fiscal 2018, multiplied by (y) a fraction equal to the number of days elapsed in such fiscal year divided by 365; plus (iv) other than with respect to the Supplemental Award (which shall be governed by Section 5(d)), immediate vesting of any equity to the extent such equity would have become vested had Executive remained in continuous service with the Company for 90 ninety (90) days after the termination of his employment occurred. Payment of the Periodic Payments shall commence, and the Lump Sum Payment shall be paid paid, sixty (60) days following the date of Executive’s 's Separation from Service (as defined in Section 9 below). The Periodic Payments and Lump Sum Payment shall be conditioned expressly upon Executive executing the Company’s standard form of general release of the Company and its affiliates, which release shall be provided to Executive no later than the date of his Separation from Service and which release shall be legally effective on or prior to the 60th day subsequent to Executive’s Separation from Service. Notwithstanding anything to the contrary contained in this Agreement, (i) the total Periodic Payments and Lump Sum Payment shall be reduced by the amount of any payments Executive is entitled to receive under any Company-provided disability policy, to the extent permissible under Code Section 409A, and (ii) in addition to any rights and remedies available to it under this Agreement or applicable law, the Company shall have the right to immediately terminate payments due under clauses (i) through (iii) of this Section 7(b) in the event of Executive’s 's breach of his obligations under Section 8 of this Agreement.
(c) In lieu of any payments due pursuant to Section 7(b) above, in the event the Company terminates Executive without Cause (for reasons other than his death or Disability) or Executive resigns for Good Reason within the period ninety (90) days prior to, or twelve (12) months following, a Change of Control (as defined in the Plan), and in addition to any accrued but unpaid compensation due to him under applicable law, any earned but unpaid Bonus (the timing of which shall be governed by Section 4 hereof) and performance-based equity for the fiscal year ending immediately before the year of termination of employment, and any Other Benefits (as defined below), Executive shall be entitled to receive the following: (i) reimbursement to Executive of the costs of continuation of health insurance coverage under COBRA for a period equal to the lesser of eighteen (18) months following termination of employment or the maximum continuation coverage period allowed under COBRA; plus (ii) a lump sum cash payment, payable within 60 days of Executive’s Separation from Service (as defined in Section 9 below), equal to 200% of Executive’s 's then current Base Salary plus the lesser of (A) the prior fiscal year Bonus paid or payable to Executive or (B) 100% of the target Bonus for the fiscal year of termination, plus (iii) to the extent vesting is not automatically accelerated under the terms of the Plan, immediate 100% vesting of any equity, including vesting of any performance-based equity as if 100% of the target performance goals for the fiscal year of termination of employment had been achieved (provided that no such vested option, if any, may be exercised beyond any time-frame permissible under Code Section 409A). The payments set forth in this Section 7(c) shall be conditioned expressly upon Executive executing the Company’s standard form of general release of the Company and its affiliates, which release shall be provided to Executive no later than the date of his Separation from Service and which release shall be legally effective on or prior to the 60th day subsequent to Executive’s Separation from Service.
(d) In the event Executive resigns or voluntarily terminates his employment for any reason (other than for Good Reason) or Executive’s employment is terminated for Cause or as a result of his death, the Company shall only be required to pay Executive (i) any unpaid Base Salary and accrued vacation pay earned prior to the date of Executive’s termination, (ii) any unpaid reimbursements due Executive for expenses incurred by Executive prior to the date of Executive’s termination, (iii) any accrued but unpaid car allowance accrued prior to the date of Executive’s termination, and (iv) any benefits that are required, or to which Executive is entitled, under any plan, contract or arrangement maintained by the Company as of the end of his employment, in each case on the date on which such payment or benefit would otherwise have been payable to Executive under the Company’s payroll practices or the terms of the applicable contract or plan (or, in the case of accrued vacation day, on the 60th day following the date of Executive’s Separation from Service); provided, however, nothing in this clause (iv) shall require the continuation of such benefits following termination unless such continuation is required under applicable law or the specific terms of the plan, contract or arrangement (together, the “Other Benefits”).
(e) For purposes of this Agreement, “Cause” shall mean (i) an act or acts of dishonesty undertaken by Executive and intended to result in material personal gain or enrichment of Executive or others at the expense of the Company, (ii) gross misconduct that is willful or deliberate on Executive’s part and that, in either event, is materially injurious to the Company, (iii) the conviction or plea of nolo contendere of Executive of a felony, (iv) the commission by Executive of any act involving moral turpitude which (A) brings the Company or any of its affiliates into public disrepute or disgrace, or (B) causes material injury to the customer relations, operations or the business prospects of the Company or its affiliates, in each case notwithstanding written notice of objection from the Board and the expiration failure of a 30-day Executive to substantially cure periodsuch harm in the reasonable opinion of the Board within 30 calendar days after such notice is received by Executive, (v) the ongoing and repeated material neglect of his duties on a general basis (other than as a result of illness or Disability), notwithstanding written notice of objection from the Board and the expiration failure of a Executive to substantially cure any resulting harm in the reasonable opinion of the Board within 30 day cure periodcalendar days after such notice is received by Executive, or (vi) the material breach of any terms and conditions of this Agreement by Executive, which breach has not been substantially cured by Executive in the reasonable opinion of the Board within 30 days after written notice thereof to is received by Executive from the Company. The cessation of employment by Executive shall not be deemed to be for Cause unless and until there shall have been delivered to Executive a copy of a resolution, duly adopted by the affirmative vote of not less than a majority of the entire non-employee membership of the Board (for the sake of clarity, not including Executive) at a meeting of the Board called and held for such purpose (after reasonable notice to Executive and an opportunity for him, together with his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, one or more causes for termination exist under this Section 7(e), and specifying the particulars thereof in reasonable detail.
Appears in 1 contract
Termination Severance. (a) Executive’s employment may be terminated by the Company at any time with or without Cause by delivery of written notice of termination to Executive. Upon any termination of Executive’s 's employment for any reason, Executive shall automatically be deemed to have resigned all positions as an officer of the Company and any subsidiary of the Company. Unless otherwise requested by the Board, Executive shall be deemed to have resigned from his position as a director of the Company and any subsidiaries upon termination of his employment for any reason.
(b) Subject to the provisions of Sections 7(c), (d) and (ed) below, in the event the Company terminates Executive without Cause (for reasons other than his death, but including termination as a result of his death or Disability) or Executive resigns for Good Reason, in addition to any accrued but unpaid compensation due to him under applicable law, any vesting and/or payout of Awards pursuant to Section 5, any earned but unpaid Bonus (the timing of which shall be governed by Section 4 hereof) and performance-based equity for the fiscal year ending immediately before the year of termination of employment, and any Other Benefits (as defined below), Executive he shall be entitled to receive the following: (i) continuation of health insurance (or reimbursement of Executive for the costs of such continuation) under COBRA for a period equal to the lesser of eighteen (18) months following termination of employment or the maximum continuation coverage period allowed under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”); provided, however, that the Company’s obligation to pay the costs of continuation health insurance coverage shall terminate at such time as Executive is covered under any other group health insurance plan; plus (ii) an aggregate cash payment totaling 150% of Executive’s then current Base Salary, which amount shall be payable in installments (but no less frequently than monthly) over the eighteen (18) month period following the date of termination of employment in accordance with the Company’s normal payroll practices (the “Periodic Payments”); plus (iii) a lump sum cash payment (the “Lump Sum Payment”) equal to (A) the lesser of the prior fiscal year Bonus paid or payable to Executive or 100% of the target Bonus for the fiscal year of termination, multiplied by (B) a fraction equal to the number of days elapsed in such fiscal year divided by 365; provided, however, that, with respect to a termination that occurs in fiscal 2018, the lump sum payment in (iii) above shall be no less than (x) 50% of the target Bonus for fiscal 2018, multiplied by (y) a fraction equal to the number of days elapsed in such fiscal year divided by 365; plus (iv) immediate vesting of any equity to the extent such equity would have become vested had Executive remained in continuous service with the Company for 90 days after the termination of his employment occurred. Payment of the Periodic Payments shall commence, and the Lump Sum Payment shall be paid sixty (60) days following the date of Executive’s his Separation from Service (as defined in Section 9 below)) equal to 100% of Executive's then current Base Salary; provided, however, that if such Separation from Service occurs prior to the second yearly anniversary of the Commencement Date, the lump sum cash payment shall equal 200% of Executive's then current Base Salary. The Periodic Payments and Lump Sum Payment It shall be conditioned expressly upon a condition to receipt of the lump sum cash payment described in this Section 7(b) that Executive executing shall execute the Company’s standard form of general release of the Company and its affiliates, which release shall be provided to Executive no later than the date of his Separation from Service and which release shall be legally effective on or prior to the 60th day subsequent to Executive’s Separation from Service. Notwithstanding anything to the contrary contained in this Agreement, (i) the total Periodic Payments and Lump Sum Payment shall be reduced by the amount of any payments Executive is entitled to receive under any Company-provided disability policy, to the extent permissible under Code Section 409A, and (ii) in addition to any rights and remedies available to it under this Agreement or applicable law, the Company shall have the right to immediately terminate payments due under clauses (i) through (iii) of this Section 7(b) in the event of Executive’s breach of his obligations under Section 8 of this Agreement.
(c) In lieu of any payments due pursuant to Section 7(b) above, in the event the Company terminates Executive without Cause (for reasons other than his death or Disability) or Executive resigns for Good Reason within the period ninety (90) days prior to, or twelve (12) months following, a Change of Control (as defined in the Plan), and in addition to any accrued but unpaid compensation due to him under applicable law, any earned but unpaid Bonus (the timing of which shall be governed by Section 4 hereof) and performance-based equity for the fiscal year ending immediately before the year of termination of employment, and any Other Benefits (as defined below), Executive shall be entitled to receive the following: (i) reimbursement to Executive of the costs of continuation of health insurance coverage under COBRA for a period equal to the lesser of eighteen (18) months following termination of employment or the maximum continuation coverage period allowed under COBRA; plus (ii) a lump sum cash payment, payable within 60 days of Executive’s Separation from Service (as defined in Section 9 below), equal to 200% of Executive’s then current Base Salary plus the lesser of (A) the prior fiscal year Bonus paid or payable to Executive or (B) 100% of the target Bonus for the fiscal year of termination, plus (iii) to the extent vesting is not automatically accelerated under the terms of the Plan, immediate 100% vesting of any equity, including vesting of any performance-based equity as if 100% of the target performance goals for the fiscal year of termination of employment had been achieved (provided that no such vested option, if any, may be exercised beyond any time-frame permissible under Code Section 409A). The payments set forth in this Section 7(c) shall be conditioned expressly upon Executive executing the Company’s standard form of general release of the Company and its affiliates, which release shall be provided to Executive no later than the date of his Separation from Service and which release shall be legally effective on or prior to the 60th day subsequent to Executive’s Separation from Service.
(d) In the event Executive resigns or voluntarily terminates his employment for any reason (other than for Good Reason) or Executive’s employment is terminated for Cause or as a result of his deathdeath or Disability, in addition to any amounts required to be paid pursuant to Section 5, the Company shall only be required to pay Executive (i) any unpaid Base Salary and accrued vacation pay earned prior to the date of Executive’s termination, (ii) any unpaid reimbursements due Executive for expenses incurred by Executive prior to the date of Executive’s termination, (iii) any accrued but unpaid car allowance accrued prior to the date of Executive’s termination, and (iv) any benefits that are required, or to which Executive is entitled, under any plan, contract or arrangement maintained by the Company as of the end of his employment, in each case on the date on which such payment or benefit would otherwise have been payable to Executive under the Company’s payroll practices or the terms of the applicable contract or plan (or, in the case of accrued vacation day, on the 60th day following the date of Executive’s Separation from Service),; provided, however, nothing in this clause (iv) shall require the continuation of such benefits following termination unless such continuation is required under applicable law or the specific terms of the plan, contract or arrangement (together, the “Other Benefits”).
(ed) For purposes of this Agreement, “Cause” shall mean (i) an act or acts of dishonesty undertaken by Executive and intended to result in material personal gain or enrichment of Executive or others at the expense of the Company, (ii) gross misconduct that is willful or deliberate on Executive’s part and that, in either event, is materially injurious to the Company, (iii) the conviction or plea of nolo contendere of Executive of a felony, (iv) the commission by Executive of any act involving moral turpitude which (A) brings the Company or any of its affiliates into public disrepute or disgrace, or (B) causes material injury to the customer relations, operations or the business prospects of the Company or its affiliates, in each case notwithstanding written notice of objection from the Board and the expiration of a 30-day cure period, (v) the ongoing and repeated material neglect of his duties on a general basis (other than as a result of illness or Disability), notwithstanding written notice of objection from the Board and the expiration of a 30 day cure period, or (vi) the material breach of any terms and conditions of this Agreement by Executive, which breach has not been cured by Executive within 30 days after written notice thereof to Executive from the Company. The cessation of employment by Executive shall not be deemed to be for Cause unless and until there shall have been delivered to Executive a copy of a resolution, duly adopted by the affirmative vote of not less than a majority of the entire non-employee membership of the Board (for the sake of clarity, not including Executive) at a meeting of the Board called and held for such purpose (after reasonable notice to Executive and an opportunity for him, together with his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, one or more causes for termination exist under this Section 7(e7(d), and specifying the particulars thereof in detail.
Appears in 1 contract
Termination Severance. (a) Executive’s Notwithstanding the provisions of Section 1 and the other provisions of this Agreement, Employee's employment with the Company may be terminated at any time for any reason or no reason by the Company's Chairman and Chief Executive Officer or Board of Directors with or without cause, provided that in the event of such a termination, Employee shall be entitled to continuation of his Salary (under Section 3(a)) and benefits (under Section 5) through the period (the "Severance Period") ending twelve (12) months after the date of such termination; provided that any such amount for Salary or benefit continuation shall be reduced by any amount received or earned by Employee during the Severance Period pursuant to any employment, consulting or similar other relationship between Employee and any other person. Except as otherwise specifically provided above, the Company's obligations under this Agreement shall cease upon termination and Employee shall forfeit all rights to receive any other compensation or benefits under this Agreement. Without limitation, a termination of Employee pursuant to this Section 12(b) shall not relieve Employee of his obligations under Sections 7, 8 or 9 hereof, and Employee is further obligated during the Severance Period to promptly notify Company of any employment, consulting or other relationship that might result in the reduction of any Salary or benefit continuation payments hereunder and to provide to Company all documents reasonably requested by it relating thereto. Any termination by the Company at any time with or without Cause by delivery of written notice of termination to Executive. Upon any termination of Executive’s employment for any reason, Executive shall automatically be deemed to have resigned all positions as an officer of the Company and any subsidiary of the Company. Unless otherwise requested by the Board, Executive under this Section 12(a) shall be deemed to have resigned from his position as a director of the Company and any subsidiaries upon termination of his employment for any reasonin writing.
(b) Subject to Notwithstanding the provisions of Sections 7(c)Section 1 and the other provisions of this Agreement, Employee's employment with the Company may be terminated by Employee upon the provision of not less than six (d6) months prior written notice to the Company. In the event of termination under this Section 12(b) and (e) belowexcept as otherwise provided herein, the Company's and Employee's obligations under this Agreement shall cease upon the date indicated in Employee's notice or such earlier date after the event date of notice as selected by the Company terminates Executive in its sole discretion and Employee shall forfeit all right to receive any compensation or benefits under this Agreement, including, without Cause (for reasons other than his death, but including termination as a result of his Disability) or Executive resigns for Good Reason, in addition to any accrued but unpaid compensation due to him under applicable lawlimitation, any earned but unpaid Bonus (the timing of which shall be governed by Section 4 hereof) and performance-based equity for the fiscal year ending immediately before the year of termination of employmentunearned performance bonus, and any Other Benefits (as defined below), Executive except that Employee shall be entitled to receive the following: his Salary (iunder Section 3(a)) continuation and benefits (under Section 5) for services already performed as of health insurance (or reimbursement of Executive for the costs of such continuation) under COBRA for a period equal to the lesser of eighteen (18) months following termination of employment or the maximum continuation coverage period allowed under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”); provided, however, that the Company’s obligation to pay the costs of continuation health insurance coverage shall terminate at such time as Executive is covered under any other group health insurance plan; plus (ii) an aggregate cash payment totaling 150% of Executive’s then current Base Salary, which amount shall be payable in installments (but no less frequently than monthly) over the eighteen (18) month period following the date of termination of employment in accordance with the Company’s normal payroll practices (the “Periodic Payments”); plus (iii) a lump sum cash payment (the “Lump Sum Payment”) equal to (A) the lesser of the prior fiscal year Bonus paid or payable to Executive or 100% of the target Bonus for the fiscal year of terminationthis Agreement. Without limitation, multiplied by (B) a fraction equal to the number of days elapsed in such fiscal year divided by 365; provided, however, that, with respect to a termination that occurs in fiscal 2018, the lump sum payment in (iii) above shall be no less than (x) 50% of the target Bonus for fiscal 2018, multiplied by (y) a fraction equal to the number of days elapsed in such fiscal year divided by 365; plus (iv) immediate vesting of any equity to the extent such equity would have become vested had Executive remained in continuous service with the Company for 90 days after the termination of his employment occurred. Payment of the Periodic Payments shall commence, and the Lump Sum Payment shall be paid sixty (60) days following the date of Executive’s Separation from Service (as defined in Section 9 below). The Periodic Payments and Lump Sum Payment shall be conditioned expressly upon Executive executing the Company’s standard form of general release of the Company and its affiliates, which release shall be provided Employee pursuant to Executive no later than the date of his Separation from Service and which release shall be legally effective on or prior to the 60th day subsequent to Executive’s Separation from Service. Notwithstanding anything to the contrary contained in this Agreement, (i) the total Periodic Payments and Lump Sum Payment shall be reduced by the amount of any payments Executive is entitled to receive under any Company-provided disability policy, to the extent permissible under Code Section 409A, and (ii) in addition to any rights and remedies available to it under this Agreement or applicable law, the Company shall have the right to immediately terminate payments due under clauses (i) through (iii) of this Section 7(b12(b) in the event of Executive’s breach shall not relieve Employee of his obligations under Section Sections 7, 8 of this Agreementor 9 hereof.
(c) In lieu of any payments due pursuant to Section 7(b) above, in the event the Company terminates Executive without Cause (for reasons other than his death or Disability) or Executive resigns for Good Reason within the period ninety (90) days prior to, or twelve (12) months following, a Change of Control (as defined in the Plan), and in addition to any accrued but unpaid compensation due to him under applicable law, any earned but unpaid Bonus (the timing of which shall be governed by Section 4 hereof) and performance-based equity for the fiscal year ending immediately before the year of termination of employment, and any Other Benefits (as defined below), Executive shall be entitled to receive the following: (i) reimbursement to Executive of the costs of continuation of health insurance coverage under COBRA for a period equal to the lesser of eighteen (18) months following termination of employment or the maximum continuation coverage period allowed under COBRA; plus (ii) a lump sum cash payment, payable within 60 days of Executive’s Separation from Service (as defined in Section 9 below), equal to 200% of Executive’s then current Base Salary plus the lesser of (A) the prior fiscal year Bonus paid or payable to Executive or (B) 100% of the target Bonus for the fiscal year of termination, plus (iii) to the extent vesting is not automatically accelerated under the terms of the Plan, immediate 100% vesting of any equity, including vesting of any performance-based equity as if 100% of the target performance goals for the fiscal year of termination of employment had been achieved (provided that no such vested option, if any, may be exercised beyond any time-frame permissible under Code Section 409A). The payments set forth in this Section 7(c) shall be conditioned expressly upon Executive executing the Company’s standard form of general release of the Company and its affiliates, which release shall be provided to Executive no later than the date of his Separation from Service and which release shall be legally effective on or prior to the 60th day subsequent to Executive’s Separation from Service.
(d) In the event Executive resigns or voluntarily terminates his employment for any reason (other than for Good Reason) or Executive’s employment is terminated for Cause or as a result of his death, the Company shall only be required to pay Executive (i) any unpaid Base Salary and accrued vacation pay earned prior to the date of Executive’s termination, (ii) any unpaid reimbursements due Executive for expenses incurred by Executive prior to the date of Executive’s termination, (iii) any accrued but unpaid car allowance accrued prior to the date of Executive’s termination, and (iv) any benefits that are required, or to which Executive is entitled, under any plan, contract or arrangement maintained by the Company as of the end of his employment, in each case on the date on which such payment or benefit would otherwise have been payable to Executive under the Company’s payroll practices or the terms of the applicable contract or plan (or, in the case of accrued vacation day, on the 60th day following the date of Executive’s Separation from Service); provided, however, nothing in this clause (iv) shall require the continuation of such benefits following termination unless such continuation is required under applicable law or the specific terms of the plan, contract or arrangement (together, the “Other Benefits”).
(e) For purposes of this Agreement, “Cause” shall mean (i) an act or acts of dishonesty undertaken by Executive and intended to result in material personal gain or enrichment of Executive or others at the expense of the Company, (ii) gross misconduct that is willful or deliberate on Executive’s part and that, in either event, is materially injurious to the Company, (iii) the conviction or plea of nolo contendere of Executive of a felony, (iv) the commission by Executive of any act involving moral turpitude which (A) brings the Company or any of its affiliates into public disrepute or disgrace, or (B) causes material injury to the customer relations, operations or the business prospects of the Company or its affiliates, in each case notwithstanding written notice of objection from the Board and the expiration of a 30-day cure period, (v) the ongoing and repeated material neglect of his duties on a general basis (other than as a result of illness or Disability), notwithstanding written notice of objection from the Board and the expiration of a 30 day cure period, or (vi) the material breach of any terms and conditions of this Agreement by Executive, which breach has not been cured by Executive within 30 days after written notice thereof to Executive from the Company. The cessation of employment by Executive shall not be deemed to be for Cause unless and until there shall have been delivered to Executive a copy of a resolution, duly adopted by the affirmative vote of not less than a majority of the entire non-employee membership of the Board (for the sake of clarity, not including Executive) at a meeting of the Board called and held for such purpose (after reasonable notice to Executive and an opportunity for him, together with his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, one or more causes for termination exist under this Section 7(e), and specifying the particulars thereof in detail.
Appears in 1 contract