Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this Section 12(d)(i) are complied with. The Company shall be given written notice by the Executive of the intention to terminate his employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct. If such conduct is not cured within that period, the Executive may then terminate his employment by reason of Constructive Termination. (ii) In the event the Executive's employment is terminated (1) by the Company without Cause (other than due to Disability or death) or (2) by reason of a Constructive Termination, the Executive shall be entitled to: (A) Base Salary through the date of termination of the Executive's employment; (B) Base Salary, at the rate in effect on the date of termination of the Executive's employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then at the rate in effect immediately prior to such reduction), payable for a period (the "Severance Period") from the date of termination through the later of (i) the third anniversary of the date of termination or, if sooner, the last day of the Employment Term, and (ii) the first anniversary of the date of termination; (C) an amount equal to a prorated Annual Bonus for the Fiscal Year in which such termination occurs, based on the actual performance for such Fiscal Year, the amount of which prorated Annual Bonus, if any, shall be determined and paid promptly following the end of the Fiscal Year to which such Annual Bonus relates; (D) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement; (E) continued participation during the Severance Period in medical, dental, hospitalization and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he was participating on the date of termination, on the same basis as such coverage is provided to active employees from time to time during the Severance Period; provided, that the Company's obligations under this clause (E) shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Company determines that the Executive is precluded from continuing his participation in any employee benefit plan or program as provided in this clause on account of his employment status or for any other reason, he shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he is unable to participate for the period specified in this clause (E) of this Section 12(d); (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit himself on an individual basis through payment of COBRA continuation coverage premiums or by other means, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance; (F) other or additional benefits, if any, in accordance with applicable plans and programs of the Company or its affiliates, other than severance plans and programs. (iii) The Executive agrees to notify the Company immediately upon obtaining subsequent employment (including self-employment), and to provide all information related to the terms thereof that the Company may reasonably request, so that the Company may determine and administer the offset provided under clause (E) of Section 12(d)(ii).
Appears in 1 contract
Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this Section 12(d)(i13(d)(i) are complied with. The Company shall be given written notice by the Executive of the intention to terminate his employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct. If such conduct is not cured within that period, the Executive may then terminate his employment by reason of Constructive Termination.
(ii) In the event the Executive's ’s employment is terminated (1) by the Company without Cause (other than due to Disability or death) or (2) by reason of a Constructive Termination, the Executive shall be entitled to:
(A) Base Salary through the date of termination of the Executive's ’s employment;
(B) Base Salary, at the rate in effect on the date of termination of the Executive's ’s employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then at the rate in effect immediately prior to such reduction), payable for a period (the "“Severance Period"”) from the date of termination through the later of (i) the third anniversary of the date of termination or, if sooner, the last day of the Employment Term, and (ii) the first anniversary of the date of termination;
(C) an amount equal to a prorated Annual Bonus for the Fiscal Year in which such termination occurs, based on the actual performance for such Fiscal Year, the amount of which prorated Annual Bonus, if any, shall be determined and paid promptly following the end of the Fiscal Year to which such Annual Bonus relates;
(D) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement;
(E) continued participation during the Severance Period in medical, dental, hospitalization and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he was participating on the date of termination, on the same basis as such coverage is provided to active employees from time to time during the Severance Period; provided, that the Company's ’s obligations under this clause (E) shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Company determines that the Executive is precluded from continuing his participation in any employee benefit plan or program as provided in this clause on account of his employment status or for any other reason, he shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he is unable to participate for the period specified in this clause (E) of this Section 12(d13(d); (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit himself on an individual basis through payment of COBRA continuation coverage premiums or by other means, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance;
(F) other or additional benefits, if any, in accordance with applicable plans and programs of the Company or its affiliates, other than severance plans and programs.
(iii) The Executive agrees to notify the Company immediately upon obtaining subsequent employment (including self-employment), and to provide all information related to the terms thereof that the Company may reasonably request, so that the Company may determine and administer the offset provided under clause (E) of Section 12(d)(ii13(d)(ii).
Appears in 1 contract
Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this Section 12(d)(i) paragraph are complied with. The Company shall be given written notice by the Executive of the intention to terminate his employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct. If , to the extent such conduct cure is not cured within that period, the Executive may then terminate his employment by reason of Constructive Terminationpossible.
(ii) In the event the Executive's employment is terminated (1) by the Company without Cause (other than due to Disability or death) or ), (2) by reason of a Constructive TerminationTermination or (3) upon expiration of the Term of Employment following the Company's having given a notice of non-extension of the Term of Employment, the Executive shall be entitled to:
(A) Base Salary through the date of termination of the Executive's employment;
(B) Base Salary, at the monthly rate in effect on the date of termination of the Executive's employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then at the rate Base Salary in effect immediately prior to such reduction), payable for a period equal to the longer of (i) the 24-month period following such termination and (ii) the number of months remaining in the Term of Employment following such termination (the "Severance Period") from the date of termination through the later of (i) the third anniversary of the date of termination or, if sooner, the last day of the Employment Term, and (ii) the first anniversary of the date of termination);
(C) an amount equal to a prorated Annual Bonus annual incentive award for the Fiscal Year year in which such termination occurs, based on the actual performance for such Fiscal Yearyear, the amount of which prorated Annual Bonusbonus, if any, shall be determined and paid promptly following the end of the Fiscal Year year to which such Annual Bonus bonus relates;
(D) an amount equal to two (2) times the highest bonus paid to the Executive during the previous three (3) years shall be paid by the Company in equal installments for a period of twenty-four (24) months in accordance with its customary payroll practices;
(E) the balance of any annual or long-term cash incentive awards earned (but not yet paid) pursuant to the terms of the applicable programs;
(F) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement;
(EG) continued participation during the Severance Period in medical, dental, hospitalization and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he was participating on the date of termination, on the same basis as such coverage is provided to active employees from time to time during the Severance Period; provided, that the Company's obligations under this clause (E) shall be reduced equity granted to the extent that Executive shall become fully vested and the Executive receives similar coverage and benefits under the plans and programs of a subsequent employerrestrictions thereon shall lapse; and provided, further, that (x) if the Company determines that the Executive is precluded from continuing his participation in any employee benefit plan or program as provided in this clause on account of his employment status or for any other reason, he shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he is unable to participate for the period specified in this clause (E) of this Section 12(d); (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit himself on an individual basis through payment of COBRA continuation coverage premiums or by other means, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance;and
(FH) other or additional benefits, if any, benefits in accordance with applicable plans and programs of the Company or its affiliates, other than severance plans and programs.
(iii) The Executive agrees to notify . Notwithstanding the Company immediately upon obtaining subsequent employment (including self-employmentpreceding provisions of Section 9(d), and to provide all information related because the Executive is a “specified employee” as defined under Section 409A of the Internal Revenue Code, the above severance payments payable during the Severance Period as a result of a termination of employment under this Section 9(d) shall be limited to the terms thereof that the Company may reasonably request, so that the Company may determine and administer the offset provided under clause (Elimitation on compensation set forth in Section 401(a)(17) of the Internal Revenue Code (i.e., $225,000 for 2007). Any severance payments payable to the Executive above in excess of said amount shall be deferred for six months as required under Section 12(d)(ii)409A(a)(2)(B) of the Internal Revenue Code.
Appears in 1 contract
Termination Without Cause; Constructive Termination. (a) The Company may remove Executive at any time without Cause (as defined in Section 3.7) from the position in which Executive is employed hereunder (in which case the Employment Term shall be deemed to have ended) upon not less than 60 days' prior written notice to Executive; provided, however, that, in the event that such notice is given, Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, Executive may initiate termination of employment by resigning under this Section 3.1 for Good Reason (as defined in Section 3.7). Executive shall give the Company not less than 30 days' prior written notice of such resignation.
(b) Upon any removal or resignation described in Section 3.1(a) above, Executive shall be entitled to receive, as liquidated damages for the failure of the Company to continue to employ Executive according to the terms of this Agreement, only the amount due to Executive under the Company's then current severance pay plan for employees. No other payments or benefits shall be due under this Agreement to Executive, but Executive shall be entitled to any other benefits in accordance with the terms of any applicable plans and programs of the Company.
(c) Notwithstanding the provisions of Section 3.1(b), in the event that Executive executes and does not revoke a written release upon such removal or resignation, substantially in the form attached hereto as Annex 1 (the "Release"), of any and all claims against the Company and all related parties with respect to all matters arising out of Executive's employment by the Company (other than any entitlements under the terms of this Agreement or under any other plans or programs of the Company in which Executive participated and under which Executive has accrued a benefit), or the termination thereof, Executive shall be entitled to receive, in lieu of the payment described in Section 3.1(b), which Executive agrees to waive, the following:
(i) A Constructive Termination Executive shall not take effect unless receive, as liquidated damages for the provisions failure of the Company to continue to employ Executive according to the terms of this Agreement, a continuation of Executive's Compensation (as defined in Section 12(d)(i) are complied with3.7), in installments, for the three year period following the date of termination. The Company Payments shall be given written notice by made at such times as the Executive of the intention to terminate his employment on account of a Constructive TerminationCompany customarily pays its other senior level executives (but in any event not less often than monthly), such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given commencing within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the effective date that such written notice has been given to of the Company in which to cure such conducttermination (or the end of the revocation period for the Release, if later). If such conduct is not cured within that periodExecutive's employment terminates under this Section 3.1 after a Change of Control (as defined in Section 3.7), Executive's Compensation under this Section 3.1(c)(i) shall be paid in a lump sum cash payment on the Executive may then terminate his effective date of Executive's termination of employment by reason (or the end of Constructive Terminationthe revocation period for the Release, if later).
(ii) In For a period of three years following the event the Executive's employment is terminated (1) by the Company without Cause (other than due to Disability or death) or (2) by reason date of a Constructive Terminationtermination, the Executive shall be entitled toreceive continued coverage, or cash in lieu of such coverage, with respect to the medical, dental, life insurance, pension and 401(k) plans in effect for Executive at the time of his termination, as follows:
(A) Base Salary through Executive shall continue to receive the medical, dental and life insurance coverage (other than the life insurance required by Section 1.5(b) of this Agreement) in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed from time to time for employees generally, as if Executive had continued in employment during such period; or, as an alternative, the Company may pay Executive cash in lieu of such coverage in an amount equal to Executive's after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the Executive's employment;plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under Section 4980B of the Internal Revenue Code of 1986, as amended (the "Code") shall run concurrently with the foregoing three-year benefit period.
(B) Base SalaryExecutive shall accrue a benefit under the Company's supplemental benefit plan equal to the benefit that Executive would have accrued under the Company's pension plan and supplemental benefit plan in which Executive participates at his termination of employment had Executive continued in employment for the three-year period, receiving annual compensation equal to the annual Compensation payable under Section 3.1(c)(i) above (without regard to whether such Compensation is paid in a lump sum payment). This benefit shall be paid at the rate in effect on the date of termination of the Executive's employment (or same time and in the event a reduction in Base Salary is same manner as benefits are payable to Executive under the basis for a Constructive Termination, then at the rate in effect immediately prior to such reduction), payable for a period (the "Severance Period") from the date of termination through the later of (i) the third anniversary of the date of termination or, if sooner, the last day of the Employment Term, and (ii) the first anniversary of the date of termination;Company's supplemental benefit plan.
(C) an amount The Company shall pay Executive a lump sum cash payment equal to a prorated Annual Bonus the matching contributions that the Company would have made for Executive under the Company's 401(k) plan and any related supplemental defined contribution plan in which Executive participates at his termination of employment had Executive continued in employment for the Fiscal Year three-year period, receiving annual compensation equal to the annual Compensation payable under Section 3.1(c)(i) above (without regard to whether such Compensation is paid in which such a lump payment) and making the same level of contributions to the 401(k) plan as in effect at Executive's termination occurs, based of employment. This payment shall be made on the actual performance for such Fiscal Year, the amount effective date of which prorated Annual Bonus, if any, shall be determined and paid promptly following Executive's termination of employment (or the end of the Fiscal Year to which such Annual Bonus relates;revocation period for the Release, if later).
(Diii) If Executive's employment terminates under this Section 3.1 before April 2, 2002 and before a Change of Control has occurred, the Company will pay Executive an additional lump sum cash payment of $9,000,000, as additional severance compensation. Payment will be made on the effective date of Executive's termination of employment (or the end of the revocation period for the Release, if later).
(iv) The Company shall pay or reimburse Executive for the costs, fees and expenses of outplacement assistance services (not to exceed 25% of Executive's Compensation) provided by any outplacement agency selected by the Executive.
(v) The Company shall pay or reimburse Executive up to $15,000 for tax and financial planning services with respect to each of the three years following Executive's termination of employment. The Company shall also pay Executive a tax gross-up payment to cover the income taxes resulting from the Company's payment or reimbursement of such tax and financial planning services and the gross-up payment.
(vi) Executive shall receive any other amounts earned, accrued or owing to the Executive but not yet paid under this Agreement;
(E) continued participation during the Severance Period in medical, dental, hospitalization Section 1 above and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he was participating on the date of termination, on the same basis as such coverage is provided to active employees from time to time during the Severance Period; provided, that the Company's obligations under this clause (E) shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Company determines that the Executive is precluded from continuing his participation in any employee benefit plan or program as provided in this clause on account of his employment status or for any other reason, he shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he is unable to participate for the period specified in this clause (E) of this Section 12(d); (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit himself on an individual basis through payment of COBRA continuation coverage premiums or by other means, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance;
(F) other or additional benefits, if any, in accordance with the terms of any applicable plans and programs of the Company or its affiliates, other than severance plans and programsCompany.
(iii) The Executive agrees to notify the Company immediately upon obtaining subsequent employment (including self-employment), and to provide all information related to the terms thereof that the Company may reasonably request, so that the Company may determine and administer the offset provided under clause (E) of Section 12(d)(ii).
Appears in 1 contract
Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this Section 12(d)(iparagraph 10(d)(i) are complied with. The Company shall be given written notice by the Executive of the intention to terminate his employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct. If , to the extent such conduct cure is not cured within that period, the Executive may then terminate his employment by reason of Constructive Terminationpossible.
(ii) In the event the Executive's employment is terminated (1) by the Company without Cause (other than due to Disability or death) or ), (2) by reason of a Constructive TerminationTermination or (3) upon expiration of the Term of Employment following the Company's having given a notice of non-extension of the Term of Employment, the Executive shall be entitled to:
(A) Base Salary through the date of termination of the Executive's employment;
(B) Base Salary, at the monthly rate in effect on the date of termination of the Executive's employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then at the rate Base Salary in effect 7 immediately prior to such reduction), payable for a over the remaining months of the Term of Employment or 12 months, whichever period is longer (the "Severance Period"); provided, however, that the Company's obligations under this clause (B) shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent that the Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment) during the date of termination through the later of (i) the third anniversary of the date of termination or, if sooner, the last day of the Employment Term, and (ii) the first anniversary of the date of terminationSeverance Period;
(C) an amount equal to a prorated Annual Bonus annual incentive award for the Fiscal Year year in which such termination occurs, based on the actual performance for such Fiscal Yearyear, the amount of which prorated Annual Bonusbonus, if any, shall be determined and paid promptly following the end of the Fiscal Year year to which such Annual Bonus relatesbonus relates payable only if the Company was ahead of plan as of the termination date;
(D) the balance of any annual or long-term cash incentive awards earned (but not yet paid) pursuant to the terms of the applicable programs;
(E) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement;
(EF) continued participation during the Severance Period in medical, dental, hospitalization and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he was participating on the date of termination, on the same basis as such coverage is provided to active employees from time to time during the Severance Period; provided, that the Company's obligations under this clause (EF) shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Company determines that the Executive is precluded from continuing his participation in any employee benefit plan or program as provided in this clause on account of his employment status or for any other reason, he shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he is unable to participate for the period specified in this clause (EF) of this Section 12(d10(d); (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit himself on an individual basis through payment of COBRA continuation coverage premiums or by other means, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance;
(FG) all Restricted Stock granted to the Executive shall become fully vested and the restrictions thereon, as set forth in Section 5, shall lapse; and
(H) other or additional benefits, if any, benefits in accordance with applicable plans and programs of the Company or its affiliates, other than severance plans and programs.
(iii) . The Executive agrees to notify the Company immediately upon obtaining subsequent employment (including self-employment), and to provide all information related to the terms thereof that the Company may reasonably request, ) so that the Company may determine and administer the offset offsets provided under clause subparagraphs (EB) and (F) of this Section 12(d)(ii10(d)(ii).
Appears in 1 contract
Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this Section 12(d)(iparagraph 10(d)(i) are complied with. The Company shall be given written notice by the Executive of the intention to terminate his employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct. If , to the extent such conduct cure is not cured within that period, the Executive may then terminate his employment by reason of Constructive Terminationpossible.
(ii) In the event the Executive's employment is terminated (1) by the Company without Cause (other than due to Disability or death) or ), (2) by reason of a Constructive TerminationTermination or (3) upon expiration of the Term of Employment following the Company's having given a notice of non-extension of the Term of Employment, the Executive shall be entitled to:
(A) Base Salary through the date of termination of the Executive's employment;
(B) Base Salary, at the monthly rate in effect on the date of termination of the Executive's employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then at the rate Base Salary in effect immediately prior to such reduction), payable for a over the remaining months of the Term of Employment or 12 months, whichever period is longer (the "Severance Period"); provided, however, that the Company's obligations under this clause (B) shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent that the Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment) during the date of termination through the later of (i) the third anniversary of the date of termination or, if sooner, the last day of the Employment Term, and (ii) the first anniversary of the date of terminationSeverance Period;
(C) an amount equal to a prorated Annual Bonus annual incentive award for the Fiscal Year year in which such termination occurs, based on the actual performance for such Fiscal Yearyear, the amount of which prorated Annual Bonusbonus, if any, shall be determined and paid promptly following the end of the Fiscal Year year to which such Annual Bonus bonus relates;
(D) the balance of any annual or long-term cash incentive awards earned (but not yet paid) pursuant to the terms of the applicable programs;
(E) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement;
(EF) continued participation during the Severance Period in medical, dental, hospitalization and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he was participating on the date of termination, on the same basis as such coverage is provided to active employees from time to time during the Severance Period; provided, that the Company's obligations under this clause (EF) shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Company determines that the Executive is precluded from continuing his participation in any employee benefit plan or program as provided in this clause on account of his employment status or for any other reason, he shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he is unable to participate for the period specified in this clause (EF) of this Section 12(d10(d); (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit himself on an individual basis through payment of COBRA continuation coverage premiums or by other means, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance;
(FG) all Restricted Stock granted to the Executive shall become fully vested and the restrictions thereon, as set forth in Section 5, shall lapse; and
(H) other or additional benefits, if any, benefits in accordance with applicable plans and programs of the Company or its affiliates, other than severance plans and programs.
(iii) . The Executive agrees to notify the Company immediately upon obtaining subsequent employment (including self-employment), and to provide all information related to the terms thereof that the Company may reasonably request, ) so that the Company may determine and administer the offset offsets provided under clause subparagraphs (EB) and (F) of this Section 12(d)(ii10(d)(ii).
Appears in 1 contract
Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this Section 12(d)(iparagraph 10(d)(i) are complied with. The Company shall be given written notice by the Executive of the intention to terminate his her employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct. If , to the extent such conduct cure is not cured within that period, the Executive may then terminate his employment by reason of Constructive Terminationpossible.
(ii) In the event the Executive's employment is terminated (1) by the Company without Cause (other than due to Disability or death) or ), (2) by reason of a Constructive TerminationTermination or (3) upon expiration of the Term of Employment following the Company's having given a notice of non-extension of the Term of Employment, the Executive shall be entitled to:
(A) Base Salary through the date of termination of the Executive's employment;
(B) Base Salary, at the monthly rate in effect on the date of termination of the Executive's employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then at the rate Base Salary in effect immediately prior to such reduction), payable for over a 12-month period following such termination (the "Severance Period"); provided, however, that the Company's obligations under this clause (B) shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent that the Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment) during the date of termination through the later of (i) the third anniversary of the date of termination or, if sooner, the last day of the Employment Term, and (ii) the first anniversary of the date of terminationSeverance Period;
(C) an amount equal to a prorated Annual Bonus annual incentive award for the Fiscal Year year in which such termination occurs, based on the actual performance for such Fiscal Yearyear, the amount of which prorated Annual Bonusbonus, if any, shall be determined and paid promptly following the end of the Fiscal Year year to which such Annual Bonus bonus relates;
(D) the balance of any annual or long-term cash incentive awards earned (but not yet paid) pursuant to the terms of the applicable programs;
(E) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement;
(EF) continued participation during the Severance Period in medical, dental, hospitalization and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he she was participating on the date of termination, on the same basis as such coverage is provided to active employees from time to time during the Severance Period; provided, that the Company's obligations under this clause (EF) shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Company determines that the Executive is precluded from continuing his her participation in any employee benefit plan or program as provided in this clause on account of his her employment status or for any other reason, he she shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he she is unable to participate for the period specified in this clause (EF) of this Section 12(d10(d); (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit himself herself on an individual basis through payment of COBRA continuation coverage premiums or by other means, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance;
(FG) all Restricted Stock granted to the Executive that would have otherwise vested within twelve (12) months after the date of termination shall become fully vested and the restrictions thereon, as set forth in Section 5, shall lapse; and
(H) other or additional benefits, if any, benefits in accordance with applicable plans and programs of the Company or its affiliates, other than severance plans and programs.
(iii) . The Executive agrees to notify the Company immediately upon obtaining subsequent employment (including self-employment), and to provide all information related to the terms thereof that the Company may reasonably request, ) so that the Company may determine and administer the offset offsets provided under clause subparagraphs (EB) and (F) of this Section 12(d)(ii10(d)(ii).
Appears in 1 contract
Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this Section 12(d)(iparagraph 10(d)(i) are complied with. The Company shall be given written notice by the Executive of the intention to terminate his employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct. If , to the extent such conduct cure is not cured within that period, the Executive may then terminate his employment by reason of Constructive Terminationpossible.
(ii) In the event the Executive's employment is terminated (1) by the Company without Cause (other than due to Disability or death) or ), (2) by reason of a Constructive TerminationTermination or (3) upon expiration of the Term of Employment following the Company's having given a notice of non-extension of the Term of Employment, the Executive shall be entitled to:
(A) Base Salary through the date of termination of the Executive's employment;
(B) Base Salary, at the monthly rate in effect on the date of termination of the Executive's employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then at the rate Base Salary in effect immediately prior to such reduction), payable for over a 12-month period following such termination (the "Severance Period") from the date of termination through the later of as follows:
(i1) the third anniversary with respect to each of the date of termination or, if sooner, the last day first two months of the Employment TermSeverance Period, an amount equal to two months' Base Salary; and (ii2) the first anniversary with respect to each of the date remaining ten months of terminationthe Severance Period, an amount equal to eighty percent (80%) of monthly Base Salary; provided, however, that the Company's obligations under this clause (B) shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent that the Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment);
(C) an amount equal to a prorated Annual Bonus annual bonus for the Fiscal Year year in which such termination occurs, based on the actual performance for such Fiscal Yearyear, the amount of which prorated Annual Bonusbonus, if any, shall be determined and paid promptly following the end of the Fiscal Year year to which such Annual Bonus bonus relates; provided, however, that in the event the Executive's employment is terminated pursuant to this Section 10(d)(ii) during fiscal year 2003, the bonus amount, if any, determined and paid in accordance with this clause (C) of this Section 10(d)(ii) shall not be subject to proration;
(D) the balance of any annual or long-term cash incentive awards earned (but not yet paid) pursuant to the terms of the applicable programs;
(E) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement;
(EF) continued participation during the Severance Period to the extent provided in medical, dental, hospitalization and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he was participating on the date of termination, on the same basis as such coverage is provided to active employees from time to time during the Severance Period; provided, that the Company's obligations under this clause (EF) shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Company determines that the Executive is precluded from continuing his participation in any employee benefit plan or program as provided in this clause on account of his employment status or for any other reasonclause, he shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he is unable to participate for the period specified in this clause (EF) of this Section 12(d10(d); , (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit himself herself on an individual basis through payment of COBRA continuation coverage premiums or by other meansbasis, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance;; and
(FG) other or additional benefits, if any, benefits in accordance with applicable plans and programs of the Company or its affiliates, other than severance plans and programs.
(iii) . The Executive agrees to notify the Company immediately upon obtaining subsequent employment (including self-employment), and to provide all information related to the terms thereof that the Company may reasonably request, ) so that the Company may determine and administer the offset offsets provided under clause subparagraphs (EB) and (F) of this Section 12(d)(ii10(d)(ii).
Appears in 1 contract
Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this Section 12(d)(iparagraph 10(d)(i) are complied with. The Company shall be given written notice by the Executive of the intention to terminate his her employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct. If , to the extent such conduct cure is not cured within that period, the Executive may then terminate his employment by reason of Constructive Terminationpossible.
(ii) In the event the Executive's employment is terminated (1) by the Company without Cause (other than due to Disability or death) or ), (2) by reason of a Constructive TerminationTermination or (3) upon expiration of the Term of Employment following the Company's having given a notice of non-extension of the Term of Employment, the Executive shall be entitled to:
(A) Base Salary through the date of termination of the Executive's employment;
(B) Base Salary, at the monthly rate in effect on the date of termination of the Executive's employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then at the rate Base Salary in effect immediately prior to such reduction), payable for over a 12-month period following such termination (the "Severance Period"); provided, however, that the Company's obligations under this clause (B) shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent that the Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment) during the date of termination through the later of (i) the third anniversary of the date of termination or, if sooner, the last day of the Employment Term, and (ii) the first anniversary of the date of terminationSeverance Period;
(C) an amount equal to a prorated Annual Bonus annual incentive award for the Fiscal Year year in which such termination occurs, based on the actual performance for such Fiscal Yearyear, the amount of which prorated Annual Bonusbonus, if any, shall be determined and paid promptly following the end of the Fiscal Year year to which such Annual Bonus relatesbonus relates (if the termination occurs during fiscal year 2003, the amount of said bonus shall be paid in full and shall not be pro-rated);
(D) the balance of any annual or long-term cash incentive awards earned (but not yet paid) pursuant to the terms of the applicable programs;
(E) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement;
(EF) continued participation during the Severance Period in medical, dental, hospitalization and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he she was participating on the date of termination, on the same basis as such coverage is provided to active employees from time to time during the Severance Period; provided, that the Company's obligations under this clause (EF) shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Company determines that the Executive is precluded from continuing his her participation in any employee benefit plan or program as provided in this clause on account of his her employment status or for any other reason, he she shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he she is unable to participate for the period specified in this clause (EF) of this Section 12(d10(d); (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit himself herself on an individual basis through payment of COBRA continuation coverage premiums or by other means, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance;
(FG) all Restricted Stock granted to the Executive shall become fully vested and the restrictions thereon, as set forth in Section 5(b), shall lapse; and
(H) other or additional benefits, if any, benefits in accordance with applicable plans and programs of the Company or its affiliates, other than severance plans and programs.
(iii) . The Executive agrees to notify the Company immediately upon obtaining subsequent employment (including self-employment), and to provide all information related to the terms thereof that the Company may reasonably request, ) so that the Company may determine and administer the offset offsets provided under clause subparagraphs (EB) and (F) of this Section 12(d)(ii10(d)(ii).
Appears in 1 contract
Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this Section 12(d)(iparagraph 11(d)(i) are complied with. The Company shall be given written notice by the Executive of the intention to terminate his employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct. If , to the extent such conduct cure is not cured within that period, the Executive may then terminate his employment by reason of Constructive Terminationpossible.
(ii) In the event the Executive's employment is terminated (1) by the Company without Cause (other than due to Disability or death) or ), (2) by reason of a Constructive TerminationTermination or (3) upon expiration of the Term of Employment following the Company's having given a notice of non-extension of the Term of Employment, the Executive shall be entitled to:
(A) Base Salary through the date of termination of the Executive's employment;
(B) Base Salary, at the monthly rate in effect on the date of termination of the Executive's employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then at the rate Base Salary in effect immediately prior to such reduction), payable for a period equal to the longer of (i) the 12-month period following such termination and (ii) the number of months remaining in the initial Term of Employment following such termination (the "Severance Period"); provided, however, that the Company's obligations under this clause (B) shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent that the Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment) during the date of termination through the later of (i) the third anniversary of the date of termination or, if sooner, the last day of the Employment Term, and (ii) the first anniversary of the date of terminationSeverance Period;
(C) an amount equal to a prorated Annual Bonus annual incentive award for the Fiscal Year year in which such termination occurs, based on the actual performance for such Fiscal Yearyear, the amount of which prorated Annual Bonusbonus, if any, shall be determined and paid promptly following the end of the Fiscal Year year to which such Annual Bonus bonus relates;
(D) the balance of any annual or long-term cash incentive awards earned (but not yet paid) pursuant to the terms of the applicable programs;
(E) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement;
(EF) continued participation during the Severance Period in medical, dental, hospitalization and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he was participating on the date of termination, on the same basis as such coverage is provided to active employees from time to time during the Severance Period; provided, that the Company's obligations under this clause (EF) shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Company determines that the Executive is precluded from continuing his participation in any employee benefit plan or program as provided in this clause on account of his employment status or for any other reason, he shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he is unable to participate for the period specified in this clause (EF) of this Section 12(d11(d); (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit himself on an individual basis through payment of COBRA continuation coverage premiums or by other means, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance;
(FG) all Restricted Stock granted to the Executive shall become fully vested and the restrictions thereon, as set forth in Section 6, shall lapse; and
(H) other or additional benefits, if any, benefits in accordance with applicable plans and programs of the Company or its affiliates, other than severance plans and programs.
(iii) . The Executive agrees to notify the Company immediately upon obtaining subsequent employment (including self-employment), and to provide all information related to the terms thereof that the Company may reasonably request, ) so that the Company may determine and administer the offset offsets provided under clause subparagraphs (EB) and (F) of this Section 12(d)(ii11(d)(ii).
Appears in 1 contract
Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this Section 12(d)(iparagraph 10(d)(i) are complied with. The Company shall be given written notice by the Executive of the intention to terminate his employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct. If , to the extent such conduct cure is not cured within that period, the Executive may then terminate his employment by reason of Constructive Terminationpossible.
(ii) In the event the Executive's employment is terminated (1) by the Company without Cause (other than due to Disability or death) or ), (2) by reason of a Constructive TerminationTermination or (3) upon expiration of the Term of Employment following the Company's having given a notice of non-extension of the Term of Employment, the Executive shall be entitled to:
(A) Base Salary through the date of termination of the Executive's employment;
(B) Base Salary, at the monthly rate in effect on the date of termination of the Executive's employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then at the rate Base Salary in effect immediately prior to such reduction), payable for over a 12-month period following such termination (the "Severance Period") from ), provided, however, that if such termination occurs within two years following the date of termination through Effective Date said monthly Base Salary payments shall continue until the later of (i) the third anniversary end of the date initial Term of termination orEmployment (i.e., if sooneruntil no later than October 15, 2006); and provided, further, that, in any event, the last day of Company's obligations under this clause (B) shall be reduced on a dollar-for-dollar basis (but not below zero) to the Employment Termextent that the Executive earns fees, and salary or wages from a subsequent employer (iiincluding those arising from self-employment) during the first anniversary of the date of terminationSeverance Period;
(C) an amount equal to a prorated Annual Bonus annual incentive award for the Fiscal Year year in which such termination occurs, based on the actual performance for such Fiscal Yearyear, the amount of which prorated Annual Bonusbonus, if any, shall be determined and paid promptly following the end of the Fiscal Year year to which such Annual Bonus bonus relates;
(D) the balance of any annual or long-term cash incentive awards earned (but not yet paid) pursuant to the terms of the applicable programs;
(E) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement;
(EF) continued participation during the Severance Period in medical, dental, hospitalization and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he was participating on the date of termination, on the same basis as such coverage is provided to active employees from time to time during the Severance Period; provided, that the Company's obligations under this clause (EF) shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Company determines that the Executive is precluded from continuing his participation in any employee benefit plan or program as provided in this clause on account of his employment status or for any other reason, he shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he is unable to participate for the period specified in this clause (EF) of this Section 12(d10(d); (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit himself herself on an individual basis through payment of COBRA continuation coverage premiums or by other means, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance;
(FG) all Restricted Stock granted to the Executive shall become fully vested and the restrictions thereon, as set forth in Section 5, shall lapse; and
(H) other or additional benefits, if any, benefits in accordance with applicable plans and programs of the Company or its affiliates, other than severance plans and programs.
(iii) . The Executive agrees to notify the Company immediately upon obtaining subsequent employment (including self-employment), and to provide all information related to the terms thereof that the Company may reasonably request, ) so that the Company may determine and administer the offset offsets provided under clause subparagraphs (EB) and (F) of this Section 12(d)(ii10(d)(ii).
Appears in 1 contract
Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this Section 12(d)(iparagraph 11(d)(i) are complied with. The Company shall be given written notice by the Executive of the intention to terminate his employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct. If , to the extent such conduct cure is not cured within that period, the Executive may then terminate his employment by reason of Constructive Terminationpossible.
(ii) In the event the Executive's employment is terminated (1) by the Company without Cause (other than due to Disability or death) or ), (2) by reason of a Constructive TerminationTermination or (3) upon expiration of the Term of Employment following the Company's having given a notice of non-extension of the Term of Employment, the Executive shall be entitled to:
(A) Base Salary through the date of termination of the Executive's employment;
(B) Base Salary, at the monthly rate in effect on the date of termination of the Executive's employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then at the rate Base Salary in effect immediately prior to such reduction), payable for a the 12-month period following such termination (the "Severance Period"); provided, however, that the Company's obligations under this clause (B) shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent that the Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment) during the date of termination through the later of (i) the third anniversary of the date of termination or, if sooner, the last day of the Employment Term, and (ii) the first anniversary of the date of terminationSeverance Period;
(C) an amount equal to a prorated Annual Bonus annual incentive award for the Fiscal Year year in which such termination occurs, based on the actual performance for such Fiscal Yearyear, the amount of which prorated Annual Bonusbonus, if any, shall be determined and paid promptly following the end of the Fiscal Year year to which such Annual Bonus bonus relates;
(D) the balance of any annual or long-term cash incentive awards earned but not yet paid pursuant to the terms of the applicable programs (Executive shall be vested pro-rata on any outstanding long-term cash incentive award if the Company was ahead of plan at date of termination);
(E) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement;
(EF) continued participation during the Severance Period in medical, dental, hospitalization and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he was participating on the date of termination, on the same basis as such coverage is provided to active employees from time to time during the Severance Period; provided, that the Company's obligations under this clause (EF) shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Company determines that the Executive is precluded from continuing his participation in any employee benefit plan or program as provided in this clause on account of his employment status or for any other reason, he shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he is unable to participate for the period specified in this clause (EF) of this Section 12(d11(d); (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit himself on an individual basis through payment of COBRA continuation coverage premiums or by other means, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance;; and
(FG) other or additional benefits, if any, benefits in accordance with applicable plans and programs of the Company or its affiliates, other than severance plans and programs.
(iii) . The Executive agrees to notify the Company immediately upon obtaining subsequent employment (including self-employment), and to provide all information related to the terms thereof that the Company may reasonably request, ) so that the Company may determine and administer the offset offsets provided under clause subparagraphs (EB) and (F) of this Section 12(d)(ii11(d)(ii).
Appears in 1 contract